This month has been an interesting month insofar as the development of the law pertaining to privacy and Charter rights in the digital age.
The first development came with the release of R. v. Spencer from the Supreme Court of Canada. This case concerned the application of the Person Information Protection and Electronic Documents Act to demands made by police to Internet Service Providers for subscriber information. Without a warrant, police attempted to obtain personal information about the subscriber to a particular IP address that would link him to accessing, possessing, and making child pornography available to others. At issue was whether the police could rely on powers set out in the PIPEDA as broad authorization to demand, without a warrant, this information from the ISP.
The Court unanimously concluded that internet subscribers have a reasonable expectation of privacy in their internet activity. The subject matter of the search was not only the name and address of the subscriber, but information about their internet activity. It is generally understood that internet browsing is done under the veil of anonymity. As such, internet activity engages what the Court described as significant privacy concerns. The PIPEDA does not grant search powers to the police, and the purpose of the legislation is to protect personal information, not to disclose it.
That said, the evidence was ultimately admitted as the police were acting in good faith and in their belief that they were following the law.
Following this, the BC Court of Appeal released its reasons in R. v. Mann. This case dealt with the power of police to search a cell phone for its contents, incidental to a lawful arrest. At common law, police have a power to search incidental to arrest. They may search the offender and surrounding area for evidence related to the offence. During the search of Mr. Mann, police seized a BlackBerry cell phone. They then downloaded the entire contents of the phone without a warrant.
The Court of Appeal found that there is a significant privacy interest in the contents of a cellular phone. Relying on the Supreme Court of Canada's decision in R. v. Vu, the Court found that people have a heightened privacy interest in the contents of their computers and cell phones. Essentially, in the digital age, all of our personal lives are contained on our devices. At paragraph 120, the Court wrote:
It now seems obvious that the individual’s privacy interest in the contents of a device such as a BlackBerry outweighs the state’s interest in law enforcement, and a warrantless search of those contents is unreasonable according to the test set out in Collins.
However, as with Spencer, the evidence was still admitted. The Court concluded that the police were acting in good faith and that at the time of the investigation, the law on cell phone searches was not as developed and settled as it is now.
But if the evidence is not excluded, what does this mean?
Many people get lost in the fact that the evidence has. nonetheless, been excluded. The fundamental reasons behind the inclusion of the unlawfully obtained evidence in these cases has to do with the lack of clarity in the law at the time of the searches.
That logic will not apply in the future, now that the law has been clearly identified by the higher courts. This same result was achieved in R. v. Evans, a 1996 SCC decision. That case pertained to a "sniffer search" undertaken by using the common-law power to knock and approach a door. The Court concluded this was an unlawful search but admitted the evidence because the police were acting in good faith. It is now generally accepted that sniffer searches of this nature, conducted without a warrant, are unconstitutional and evidence is not so freely or readily admitted as a result of these searches.
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