The Supreme Court of Canada’s decision in Spencer may be a harbinger for legislation that seeks to avoid judicial scrutiny of searches conducted by law enforcement officials. In this case the police suspected an individual was using the Internet to access child pornography. Without seeking a search warrant, and, purporting to act under the authority of PIPEDA, they obtained from the Internet Service Provider the IP address of the suspect. PIPEDA provisions do not require the authorities to obtain a search warrant.
The issue before the Supreme Court of Canada was whether persons have a subjective expectation of privacy that is reasonable in the information given to the police by the Internet provider. The court concluded that there was an expectation of privacy that was reasonable in this information. It was not simply a matter of searching for a person’s name and address. Instead the information sought and obtained by the police without warrant corresponded to particular Internet usage.
The court came down firmly on the side of information privacy. The court specifically rejected the idea that information privacy is only related to the concept of secrecy or confidentiality. Information privacy, the court found, related to the wider notion of control over, access to and use of information.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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