2014 SCC 43
The accused in this case had been charged with child pornography after Saskatoon police obtained the subscriber information for his IP address from Shaw, his Internet service provider. The police had requested Shaw to voluntarily provide the information without their having obtained a warrant, citing s. 7(3)(c.1)(ii) of the Personal Information Protection and Electronic Documents Act (“PIPEDA”), and Shaw complied. The accused sought to have the evidence from Shaw’s voluntary disclosure excluded under s.24(2) of the Charter, claiming that the request without judicial authorization for his subscriber information was an unreasonable search and seizure contrary to s.8 of the Charter.
The Supreme Court held that a user will have a reasonable expectation of privacy in the information provided by Shaw, which was not ‘merely’ subscriber information but the identity of an Internet user connected to specific, monitored Internet activity. This interest engaged the anonymity aspect of the accused’s informational privacy interest. The statutory and contractual framework in this case was unclear, but could not be determinative of the accused’s privacy interest. As a result of the reasonable expectation of privacy, the request for voluntary disclosure constituted a search. As the search was not conducted under any police power under the Criminal Code or granted by PIPEDA, its conduct violated the Charter. In this case, however, the balance of societal interests in having the case tried on its merits outweighed the interests of the accused in having the evidence excluded, and the admission of the evidence was upheld.
Faculty of Law Research and Commentary discussing R v. Spencer
Kent Roach, “Determining the seriousness of the violation under section 24(1) of the Charter,” (2014) 61 CLQ 157.
Facta
| Date | Document |
| 2013/05/15 | Appellant – Matthew David Spencer |
| 2013/07/07 | Respondent – Her Majesty the Queen |
| 2013/08/23 | Intervener – Privacy Commissioner of Canada |
| 2013/09/25 | Intervener – Attorney General of Ontario |
| 2013/09/20 | Intervener – Attorney General of Alberta |
| 2013/09/26 | Intervener – Director of Public Prosecutions |
| 2013/09/23 | Intervener – Criminal Lawyers Association of Ontario |
| 2013/09/26 | Intervener – Canadian Civil Liberties Association |