Criminal Law

SCC ruling a win for citizens' privacy rights

Toronto criminal lawyer Roots Gadhia says Canadians should be relieved that the country's highest court has affirmed citizens' privacy rights by ruling that police need a warrant to get information from Internet service providers about their subscribers' identities.


"I think Canadians should be thrilled that the Supreme Court of Canada has come down and said emphatically that police need a search warrant," she tells AdvocateDaily.com.


Gadhia makes the comments after the Supreme Court of Canada ruled 8-0 on the appeal of a Saskatchewan man who had been charged with child pornography offences. As part of the high court's ruling, it said Canadians should be guaranteed a degree of anonymity when they search the Internet, reports the Canadian Press.


The judgment in R. v. Spencer relates to the case of a 19-year-old Saskatchewan man who was charged with possessing and distributing child pornography after police used his Internet address to get further details – without a search warrant – from his online service provider, says the national news service. Lawyers for the man argued that action violated his constitutional right to be protected from unlawful search and seizure, says the Canadian Press.


But in its decision, the Supreme Court ruled that the information gathered should not be excluded as evidence from the man’s trial, saying the police acted in good faith.


The ruling also addressed the broader constitutional issues raised by s. 8 of the Charter of Rights and Freedoms, which protects Canadians’ privacy rights from unlawful search and seizure, says the Canadian Press.


“In my view, in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information," Justice Thomas Cromwell writes in the decision.


“The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous.”


Gadhia tells AdvocateDaily.com that requiring police to obtain a search warrant before being able to obtain this type of subscriber information isn't "onerous" for the authorities and stresses the importance of judicial oversight.


She also notes that though the police request for the information in this case was made pursuant to the Personal Information Protection and Electronic Documents Act (PIPEDA), the court didn't extend the search powers of the authorities through provisions in that law.


In fact, the ruling states PIPEDA is a statute whose purpose is to increase the protection of personal information.


"Since in the circumstances of this case the police do not have the power to conduct a search for subscriber information in the absence of exigent circumstances or a reasonable law, the police do not gain a new search power through the combination of a declaratory provision and a provision enacted to promote the protection of personal information," the decision says.


The Supreme Court ruling also has implications for Ottawa's current cyber-bullying bill as it may set the stage for another high court challenge of a Conservative law, says the Canadian Press.


The wire service says the ruling renders unconstitutional a portion of the Tories’ cyber-bullying bill, C-13, which critics say will encourage companies to give police more information about customers’ online activities without a warrant.


The Supreme Court ruling may also have implications for a separate digital privacy bill, which is before Parliament.


Gadhia says she's surprised that the courts have to periodically re-litigate the issue of privacy in Canada.


"The law has been clear since Hunter et al. v. Southam Inc. in 1984 that an individual's privacy rights are paramount and that the police require judicial authorization," she tells the online news service.


She says each time there is a "testing of the waters" to push the boundaries of Canada's privacy laws, the courts are continually having to "claw back" on these types of encroachments to protect citizens.


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