R.v Spencer: Reasonable Expectation of Privacy

Who knew six months could pass so quickly? The last blog post seemed like yesterday. After getting the shoulder better and renewing an intent to blog on a more regular basis, here is part 2 of the R v. Spencer blog post. In the last post, my focus was on the meaning of “lawful authority”. Here I want to focus on what I think is the more important aspect of the case  — the “reasonable expectation of privacy” in subscriber information.

As you may recall, in Spencer, the SCC basically decided that a police “request” for information required a warrant unless three “exceptions” applied: (i) the request occurred in exigent circumstances; (ii) the request was made under a reasonable law or (iii) the subject of the information request could have no reasonable expectation of privacy with respect to the information.

Section 8 of the Charter of Rights and Freedoms is designed to ensure that any search and seizure by agents of the state are reasonable. Evidence obtained from an unreasonable search and seizure may be excluded under s. 24(2) of the Charter from use in a trial against an accused. As with most things related to the concept of privacy, a certain “balancing” is recognized. This “balancing” was succinctly stated by Mr. Justice Dickson in Hunter et al. v. Southam Inc. at p. 159:

 “The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.”

Charter decisions concerning search and seizure since Hunter have addressed, in one way or another,whether there was a reasonable expectation of privacy in the case at hand. If one were to look at the caselaw, one can see the “banding” of “low”, “medium” or “high” expectations of privacy, depending upon the location of the search and/or its circumstances.

In Spencer, the police sought “subscriber information” from an Internet Service Provider. These are the business records of a company. Can an individual have an expectation of privacy in such records? Mr. Justice Cromwell, at para 66 of his reasons, gives an emphatic yes:

 “In my view, in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. 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.”

In the context of information privacy, this constitutes recognition of the Internet as the vehicle for private activity and the records of one’s ISP as a gateway to information about such activities. As stated by Mr. Justice Cromwell at para 36:

 “The nature of the privacy interest does not depend on whether, in the particular case, privacy shelters legal or illegal activity. The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought. To paraphrase Binnie J. in Patrick, the issue is not whether Mr. Spencer had a legitimate privacy interest in concealing his use of the Internet for the purpose of accessing child pornography, but whether people generally have a privacy interest in subscriber information with respect to computers which they use in their home for private purposes: Patrick, at para. 32.” (Emphasis added)

Mr. Justice Cromwell goes further and addresses the concepts of “privacy as secrecy”, “privacy as control” and “privacy as anonymity” – which is important to the extent that information privacy receives Charter protection in the context of search and seizure law.

Whether Spencer has a practical impact on police activities in looking at ISP records remains to be seen but it is a privacy-friendly decision that firmly establishes an expectation of privacy by ordinary Canadians in such records and elaborates on the meaning of informational privacy under the Charter.

Postscript: In looking for a link to Spencer on the CANLII site, I discovered this post on CanLIIConnects by Jordan Casey which also addresses the significance of Spencer: The Reasonable Expectation of Privacy in the Information Age: R v Spencer.