A precedent setting internet neutrality legal case
Author: ravinesh sakaran – contributor
In a recent interview with the Toronto Star, the iconoclastic founder of the whistleblowing website Wikileaks,, Julian Assange, praised the Canadian Supreme Court for being on the right track concerning digital privacy.
The Supreme Court case that Assange is referring to is R. v. Spencer, originating in Saskatoon, during a 2007 child pornography investigation. At the time, the Saskatoon Police obtained the Internet Protocol (IP) address, a set of numbers that represents the Internet identity of an electronic device, i.e. a computer, of Mathew David Spencer. The police attained this IP from his Internet Service Provider (ISP) without prior judicial authorization. This request was made in pursuant to the Personal Information and Protection and Electronics Act (PIPEDA) that enables law enforcement agencies to request the personal information that the IP address provides, i.e. the name, address of the alleged perpetrator from their respective ISP. This information then led the authorities to the accused. He had apparently downloaded child pornography into a folder that was accessible to other Internet users using a file-sharing program.
Mr. Spencer was then charged and convicted at a trial for the possession of child pornography. However, he was acquitted on a charge of making it available. This case was then brought to the court of appeal and the conviction was upheld, but this time around the court of appeal set aside the acquittal on the making available charge and ordered a retrial.
The Supreme Court of Canada later picked up this case, and on the Jun. 13, 2014, the court ruled in favor of Internet anonymity and disagreed with the Court of Appeal’s ruling that there is no reasonable expectation of privacy for the data obtained by the police.
“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,” supreme court Justice Thomas Cromwell wrote.
Supreme justice Cromwell also added that the search on Mr. Spencer’s residence violated Section 8 of the Canadian Charter of Rights,
“Everyone has the right to be secure against unreasonable search or seizure.”
For the subscribers to the child pornography folder, information obtained by the police which led to the warrant to search Mr. Spencer’s residence was unconstitutionally entered, and therefore illegal and a breach of Spencer’s rights as a Canadian citizen.
The Supreme Court, however, dismissed Mr. Spencer’s appeal and upheld the Court Of Appeals’ decision for the conviction of possession of child pornography and the decision for the retrial of making child pornography available to others.
Dr. John Whyte, a U of R professor and scholar of constitutional law, was asked to comment on the significance of Canada’s Supreme Court ruling.
Dr. Whyte was educated at the prestigious University of Toronto, Queens, and Harvard Law School. He taught law at the Queen’s University faculty of law from 1969 to 1997 and served for five years as dean of law. His research and publications have focused on constitutional law. He was also involved in the patriation of the constitution in 1982, during which time he served as a constitutional advisor to the Government of Saskatchewan.
“This is called a first instance case. It was unclear whether IP information was protected within the privacy interest of Mr. Spencer and so as justice Cromwell says, it doesn’t bring justice into disrepute for the police to have made an error about the charter, when the law wasn’t clear or clarified,” Dr. Whyte points out.
Thus, in this instance, the police should have obtained a warrant before turning to the ISP for the customer’s information. However, the police responded reasonably in accordance to PIPEDA and the administration of justice would be tainted if the evidence collected by searching Spencer’s home in this case were thrown out of court, hence the decision to uphold the Court of Appeal’s decision.
“Here on after, enforcement agencies will need to obtain a warrant if they were to request IP address information from the ISP, and in fact, once the court makes a finding that the right to privacy is under Section 8 protects IP address information, and if the police continue to [seek IP information without a warrant], then that would probably bring the administration of justice into disrepute.” Dr. Whyte says.
This ruling by the Canadian highest court leaves the Conservative government’s cyber bullying bill, Bill C-13, which includes components that aim to expand the police’s search powers.
In an interview with CBC, Sukanya Pillai, the executive director of the Canadian Civil Liberties Association, discussed how the Supreme Court’s decision in affirming privacy rights will affect legislation before parliament that would enshrine warrantless access powers and protect businesses that turn over customer information to police.
She also said, “I think that they will have to take it back to the drawing board. I think that this decision sends a clear signal that warrantless access is not allowed.”
That being said, Canadians, for now, have the right to be anonymous on the Internet. As the world becomes more intertwined with the Internet, law will eventually catch up giving clear definitions of what is legal and illegal.