Content area
Full Text
THIS article looks at the Supreme Court of Canada's June 13, 2014 opinion in R. v. Spencer (Spencer) holding that the Canadian public enjoys certain privacy rights and expectations in regard to their use of the Internet.* 1 It begins by presenting the background information and lower court rulings that led to this case the Supreme Court of Canada. Continuing, the article presents an analysis of the Supreme Court's ruling in Spencer. The last section of the article looks at developments in the Federal Parliament since Spencer, in particular, legislative proposals that most likely need to be modified in light of the Supreme Court's ruling.
I. R. V. SPENCER: BACKGROUND AND LOWER COURT RULINGS
Before Spencer, police in Canada investigating crimes on the Internet traditionally would request information about an Internet user suspected of committing a crime from their internet service provider (ISP) via the use of general investigative police powers listed in section 487.014 of the Canadian Criminal Code (Criminal Code) or through requests to an ISP made via what is known as the "lawful authority exception" in section 7(3)(c.l)(ii) of the Personal Information Protection and Electronic Documents Act (PIPEDA).2 3 One such criminal case arising from a request made through the PIPEDA procedure ultimately reached the Supreme Court and led to the opinion in Spencer*
A. BACKGROUND
In 2007, police in Saskatoon, Saskatchewan, investigating child pornography distribution on the Internet, contacted Shaw Communications, a Canadian ISP-without first obtaining a warrant-and requested that Shaw hand over information relating to one of their users as part of the police investigation. This eventually led to the arrest of Matthew Spencer for child pornography charges.4 On August 31, 2007, then-Constable (now Detective Sergeant) Darren Parisien, using file sharing software similar to the LimeWire software program, discovered child pornography in the shared folder of a computer at the internet protocol address (IP address) 70.64.12.102.5 LimeWire and similar software programs function by allowing individuals to search the Internet for files and then download them to their own computers where, by default, they are stored in a shared folder and made available for other users of the software to download.6
After finding the IP address, Parisien then used a police database to determine that the particular address he had...