Established Areas of Informational Privacy: Difference between revisions

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{{CanLIIR|Bykovets|k358f|2024 SCC 6 (CanLII)}}{{perSCC|Karakatsanis J}}<br>
{{CanLIIR|Bykovets|k358f|2024 SCC 6 (CanLII)}}{{perSCC|Karakatsanis J}}<br>
contra {{CanLIIR|Nguyen|h1sbj|2017 ONSC 1341 (CanLII)}}{{perONSC|Fairburn J}}
contra {{CanLIIR|Nguyen|h1sbj|2017 ONSC 1341 (CanLII)}}{{perONSC|Fairburn J}}
</ref>
The collection of IP addresses by US law enforcement, that is then disclosed to Canadian law enforcement without a warrant violates section 8.<ref>
{{CanLIIRP|Currie|k746j|2024 BCPC 175 (CanLII)}}
</ref>
</ref>


Revision as of 13:02, 7 October 2024

This page was last substantively updated or reviewed May 2024. (Rev. # 96575)

General Principles

See also: Established Areas of Privacy and Reasonable Expectation of Privacy

Presence in Public

Automated Licence Plate Readers

There is some authority that the use of certain technologies to read licence plates of vehicles does not intrude on informational privacy.[1]

IMEI scanners

A device that pings cell phones and reveals the IMEI number for a phone has a limited privacy interest.[2]

  1. ↑ An Application for a General Warrant, s. 487.01 and a Sealing Order, s. 487.3, 2020 MBPC 62 (CanLII)
  2. ↑ R v Jennings, 2018 ABQB 296 (CanLII), per Shelley J

Business Records

Business records found in the accused's place of business will be protected.[1]

Telephone records detailing contact between various persons has a reduced expectation of privacy, in comparison to personal medical records[2]

Several lines of cases have developed on the issue of whether there is a reasonable expectation of privacy in subscriber information associated with business accounts, in particular IP addresses.[3]Generally, they have sided on there not being privacy rights in "tombstone" information of a person since it is freely available to the public.[4] In certain cases, this will turn on the service contract. Where a contract is not in evidence, a court is more likely to find in favour of there being a expectation of privacy.[5]

Whether a person has a bank account with a particular bank does not have a reasonable expectation of privacy because that information does not reveal any core biographical information.[6]

Employment Records

Employment records generally are considered private and confidential, containing personal information about an individual's "employment terms and conditions, performance evaluations, salary and benefits paid or payable, seniority standing, discipline, commendations or reprimands, all of which directly impact the individual’s identity or self worth."[7]

Records Produced in Ordinary Course of Business

Those records produced during the ordinary course of business of regulated activities will have a diminished expectation of privacy.[8]

Documents Seized During a Regulatory Inspection

Documents seized during a regulatory inspection are not subject to a REP.[9]

Utility Records

Utility records specifically have been found not to hold a high degree of expectation of privacy.[10]

  1. ↑ E.g. Hunter v Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson CJ
  2. ↑ R v M(B), 1998 CanLII 13326 (ON CA), OR (3d) 1, per Rosenberg JA, at para 62
    See also, R v Hutchings, 1996 CanLII 703 , per McEachern JA, at para 25
    R v Mahmood, 2011 ONCA 693 (CanLII), 282 CCC (3d) 314, per Watt JA, at para 98
  3. ↑ R v Graff, 2015 ABQB 415 (CanLII), 337 CRR (2d) 77, per Neilsen J - No REP on IP when it doe not divulge personal information
  4. ↑ No REP: R v Ward, 2012 ONCA 660 (CanLII), 97 CR (6th) 377, per Doherty JA
    R v Thomas, 2013 ABQB 223 (CanLII), per Jerke J
    R v Caza, 2012 BCSC 525 (CanLII), BCJ No 725, per Powers J
    R v Friers, [2008] OJ No 5646 (Ct. Jus.)(*no CanLII links)
    R v Verge, [2009] OJ No 6300 (Ct. Jus.)(*no CanLII links)
    R v Vasic, 2009 CanLII 23884 (ON SC), per Thorburn J
    R v Wilson, [2009] OJ No 1067 (Sup. Ct.)(*no CanLII links)
    R v Spencer, 2009 SKQB 341 (CanLII), [2009] S.J. No 798 (Q.B.), per Foley J appealed to 2014 SCC 43 (CanLII), per Cromwell J
    R v McNeice, 2010 BCSC 1544 (CanLII), BCJ No 2131, per Meiklem J
    R v Brousseau, 2010 ONSC 6753 (CanLII), 264 CCC (3d) 562, per Croll J
    R v Ballendine, 2011 BCCA 221 (CanLII), 271 CCC (3d) 418, per Frankel JA
    Yes, REP:
    R v Trapp, 2011 SKCA 143 (CanLII), 377 Sask R 246, per Cameron JA
    R v Cuttell, 2009 ONCJ 471 (CanLII), 247 CCC (3d) 424, per Pringle J
  5. ↑ e.g. in Cuttell, ibid., at para 57
  6. ↑ R v Quinn, 2006 BCCA 255 (CanLII), 209 CCC (3d) 278, per Thackray J - police were allowed to speak to bank to find out if the accused had an account there and used that information for a search warrant.
  7. ↑ R v Musselwhite, 2004 BCPC 443 (CanLII), per Dhillon J, at para 63
  8. ↑ R v Jarvis, 2002 SCC 73 (CanLII), [2002] 3 SCR 757, per Iacobucci and Major JJ, at para 72
    e.g. Thomson newspapers ltd. v Canada (Director of investigation and research, restrictive trade practices commission), 1990 CanLII 135 (SCC), [1990] 1 SCR 425, per La Forest J, at p. 507
  9. ↑ Thomson newspapers ltd, ibid.
  10. ↑ R v Tran, 2007 ABPC 90 (CanLII), 416 AR 109, per Van de Veen J
    R v Cheung, 2007 SKCA 51 (CanLII), 219 CCC (3d) 414, per curiam

Service Providers

An account holder with an internet service provider has an expectation of privacy over the Customer Name and Address (CNA) records that are associated with an assigned IP address.[1]

There is also a reasonable expectation of privacy over the IP address.[2]

The collection of IP addresses by US law enforcement, that is then disclosed to Canadian law enforcement without a warrant violates section 8.[3]

There is no expectation of privacy with the CNA records associated with a telephone or cellphone number.[4]

  1. ↑ R v Spencer, 2014 SCC 43 (CanLII), [2014] 2 SCR 212, per Cromwell J, at para 47
  2. ↑ R v Bykovets, 2024 SCC 6 (CanLII), per Karakatsanis J
    contra R v Nguyen, 2017 ONSC 1341 (CanLII), per Fairburn J
  3. ↑ R v Currie, 2024 BCPC 175 (CanLII)
  4. ↑ R v Khan, 2014 ONSC 5664 (CanLII), OJ No 6488, per Code J
    R v TELUS Communications Company, 2015 ONSC 3964 (CanLII), 122 WCB (2d) 281, per Nordheimer J
    R v Lattif, 2015 ONSC 1580 (CanLII), 331 CRR (2d) 72, per Nordheimer J
    cf. Re Subscriber Information, 2015 ABPC 178 (CanLII), per Henderson J - asks whether this applies only to non-internet accessible phones

Personal Communications

Generally, the private conversations, including private telephone calls, are protected by a REP.[1] However, there exist communications that are not protected.[2]

The court may look at the contents of the communications to determine whether there is a subjective and objective expectation of privacy.[3]

Subject matter of Intrusion

In a communication by electronic means, the subject of the intrusion is not the device but rather the "conversation."[4]

The fact that the sender of a message in an the electronic conversation knows that there is as risk that the recipient may disclose the conversation is not the same as understanding of a risk that the state may intrude on the conversation.[5]

Control

Control as a factor in analysis of REP must be considered in relation to the subject matter of the search, which is, when talking about online communications is the "electronic conversation."[6]

Control over the electronic conversation is only one factor in the analysis of expectation of privacy.[7]

Awareness of lack of privacy

Where the conversation makes many references the lack of confidence in the privacy of the conversation may be sufficient to eliminate subjective expectations of privacy.[8]

  1. ↑ R v Duarte, 1990 CanLII 150 (SCC), [1990] 1 SCR 30, per La Forest J - face-to-face conversations
    R v Shayesteh, 1996 CanLII 882 (ON CA), OR (3d) 161, per Charron JA
    R v Deacon, 2008 CanLII 78109 (ON SC), [2008] OJ No 5756, per Trafford J
  2. ↑ e.g. see R v Moldovan, 2009 CanLII 58062 (ON SC), per R Clark J, at para 43
    Duarte, supra, at para 28
  3. ↑ R v Marakah, 2017 SCC 59 (CanLII), [2017] 2 SCR 608, per McLachlin CJ
    Moldovan, supra, at para 44
    R v McIsaac, 2005 BCSC 385 (CanLII), [2005] BCJ No 946 (SC), per Parrett J, at para 67 - re wiretaps on jail phone calls
    R v Bartkowski, 2004 BCSC 44 (CanLII), [2004] BCJ No 2950 (SC), per Macaulay J - re wiretaps phone calls
  4. ↑ Marakah, supra
  5. ↑ Marakah, ibid.
  6. ↑ Marakah, ibid.
  7. ↑ Marakah, ibid.
  8. ↑ e.g. Moldovan, supra - many statements such as "Listen, man, we shouldn’t talk about it on the phone."

Social Media and Text Messages

Telephone calls by accused in custody, often where there are signs indicating that the conversation is not private, will reduce or eliminate any subjective expectation of privacy.[1]

The text messages of the accused, present on a third-party's phone, may be subject to a reasonable expectation of privacy.[2]

Protections Upon "Electronic Conversations"

The protection of the "electronic conversation" includes "existence of the conversation, the identities of the participants, the information shared, and any inferences about associations and activities that can be drawn from that information."[3]

An electronic communication by Facebook messenger between romantic partners may or may not require a warrant, depending on the circumstances. Where the texts Between the complainant and accused corroborate the allegations made by the complainant, there a suggestion that there is no expectation of privacy.[4]

Depending on the "totality of circumstances", the sender of text messages that have been received by the recipient may still be able to retain privacy rights over the content of the messages.[5] This, however, does not mean that a sender always has an expectation of privacy, it will depend on the case-by-case analysis under Edwards.[6]

The existence of a REP will be case-specific. It will include consideration of the "nature of the communication."[7]

Loss of control over the communication is not determinative of the issue.[8]

Undercover Online Police

It seem communications with undercover police officers online would not engage a privacy protection.[9]

Facebook

An open facebook profile containing broadcast communications are not protected by a reasonable expectation of privacy.[10]

  1. ↑ e.g. see R v McIsaac, 2005 BCSC 385 (CanLII), [2005] BCJ No 946 (SC), per Parrett J
    R v Bartkowski, 2004 BCSC 44 (CanLII), [2004] BCJ No 2950 (SC), per Macaulay J
    R v Ballantyne, 2008 BCSC 1566 (CanLII), BCJ No 2691, per Chamberlist J
  2. ↑ R v Marakah, 2017 SCC 59 (CanLII), [2017] 2 SCR 608, per McLachlin CJ
    R v Pelucco, 2015 BCCA 370 (CanLII), 327 CCC (3d) 151, per Groberman JA
    R v Craig, 2016 BCCA 154 (CanLII), 335 CCC (3d) 28, per Bennett JA
    cf. R v Lowrey, 2016 ABPC 131 (CanLII), 357 CRR (2d) 76, per Rosborough J - police access Facebook account of luring victim and seize text messages between victim and accused
  3. ↑ Marakah, supra, at para 20
  4. ↑ R v WM, 2019 ONSC 6535 (CanLII), per Davies J
  5. ↑ R v Marakah, 2017 SCC 59 (CanLII), [2017] 2 SCR 608, per McLachlin CJ, at para 4 ("...depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8 and that [the sender] had standing to argue that the text messages at issue enjoy s. 8 protection.")
  6. ↑ R v Vickerson, 2018 BCCA 39 (CanLII), 358 CCC (3d) 441, per Bennett JA, at para 54
  7. ↑ R v MS, 2019 ONCJ 670 (CanLII), per Chapman J, at para 68
  8. ↑ Marakah, supra
  9. ↑ R v Graff, 2015 ABQB 415 (CanLII), 337 CRR (2d) 77, per Neilsen J
    R v Kwok, [2008] OJ No 2414(*no CanLII links)
    R v Caza, 2012 BCSC 525 (CanLII), BCJ No 725, per Powers J
    R v Ghotra, [20015] OJ No 7253 (ONSC) (*no CanLII links) , per Durno J
    R v Vader, 2016 ABQB 309 (CanLII), per Thomas J - cell phone text messages obtained from ISP by production order after they have been sent
    R v Mills, 2017 NLCA 12 (CanLII), NJ No 55, per Welsh JA leave to appeal to SCC granted - involved active screen capture by the police officer
  10. ↑ R v Patterson, 2018 ONSC 4187 (CanLII), per Bawden J, at paras 6, 8, 21 and 33

Names and Addresses

The address and name of person with signing authority are not subject to a reasonable expectation of privacy and are obtainable without warrant.[1]

The name and phone number held by a motel is not protected by privacy.[2]

  1. ↑ R v PDC, 2021 ONCA 134 (CanLII), per Rouleau JA
  2. ↑ R v Neumann, 2023 ABCA 200 (CanLII) (working hyperlinks pending)

Other Private Communications

The communications between a patient and a paramedic in an ambulance that is overheard by a police officer--present with the consent of the paramedic--is an intrusion upon privacy where the patient is not aware of the presence of police.[1]

  1. ↑ R v SS, 2023 ONCA 130 (CanLII), per Paciocco JA
    compare R v LaChappelle, 2007 ONCA 655 (CanLII), 226 CCC (3d) 518, per Rosenberg JA

Electronic Devices

Data found on electronic devices are generally protected by "informational privacy". However, the analysis often makes use of the metaphors with territorial privacy.[1]

  1. ↑ e.g. R v Marakah, 2017 SCC 59 (CanLII), [2017] 2 SCR 608, per McLachlin CJ, at paras 25 to 30

Computers

Generally

Any electronic device (computer, cell phone, etc) will contain information detailing a persons life that can be "deeply personal". Personal information can be found in: [1]

  • Contact Information (detailing names, addresses, phone numbers, e-mail addresses and similar information);
  • Internet Browsing (history of websites, log-in information, passwords, form data);
  • Calendars;
  • Photographs and videos;
  • Messages (emails, texts, voicemails);
  • Phone Call Logs (dialled/received/missed calls, caller identification);

A lack of exclusive control over the control over contents of the information is not a sole basis for finding a lack of expectation of privacy.[2]

Home and Personal Computers

Home and personal computers are imbued with a high degree of privacy due to the frequency that it contains intimate correspondence, financial, medical, or personal information. In addition to our personal interests and tastes.[3] According to the Morelli court, the level of privacy does not get much higher.[4]

The high expectation exists not only due to amount of intimate personal information is stored on the devices but also because of its high capacity to store data, the existence of a significant amount of information that the user is unaware of, such as metadata and tracking history, it also stores data after its deletion and may provide access to sources outside of the device.[5]

Generally, all personal electronic devices similar to home computers have a high level of privacy.[6]

It is suggested that the degree of privacy is lessened where a personal computer has been brought to a repair shop.[7] In some cases, there is no expectation of privacy.[8]

An accused loses their reasonable expectation of privacy to a household computer once they move out.[9]

The search of a computer cannot always be precise. An investigating officer looking for a particular piece of evidence may need to diverge into several areas of the hard drive in the same way as a person searching a house would look into a number of draws of a bedroom before finding evidence.[10]

A computer seized as under plain view under s. 489 during the execution of a general residential search warrant is permissible. However, the search of its contents may require a warrant.[11]

It has been suggested that a search of a memory stick has a REP and so requires a search warrant.[12]

School and Workplace Computers

Workplace computers are considered to have limited expectation of privacy. [13] This will turn on the employer's privacy policy on whether the employees can keep personal things on work computers.[14]

The deleted internet browsing history of a school computer will still have a reasonable expectation of privacy. Deleted files represents an intent to keep potential private information hidden. [15]

  1. ↑ see discussion in R v Polius, 2009 CanLII 37923 (ON SC), [2009] OJ No 3074 (Sup. Ct.), per Trafford J
  2. ↑ Cole, supra, at para 54
  3. ↑ R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J, at para 105
  4. ↑ Morelli, ibid., at para 2: (“It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer.”
  5. ↑ R v Vu, 2013 SCC 60 (CanLII), [2013] 3 SCR 657, per Cromwell J, at paras 42, 43
  6. ↑ R v Choudry, [2009] OJ No 84 (ONSC)(*no CanLII links)
    R v Little, 2009 CanLII 41212 (ON SC), OJ No 3278, per Fuerst J
    Polius, supra
  7. ↑ R v Graham, 2010 ONSC 119 (CanLII), [2010] OJ No 146 (Sup. Ct.), per Desotti J: ( Defence argued a high degree of privacy in the computer at the repair shop, the judge said "I agree that in other factual situations that a court may have to consider, those other concerns [of Defence] might have a more prominent place. I do not have those facts before me.")
    R v Winchester, 2010 ONSC 652 (CanLII), [2010] OJ No 281 (Sup. Ct.), per Valin J, at para 36: (“while I am not prepared to find that the applicant had no expectation of privacy in the contents of the computer when he left it at the store, I do find that this expectation was significantly reduced.”)
  8. ↑ R v Piette, 2009 QCCQ 14499 (CanLII), per Bonin J a computer repairman makes copy of child abuse images found on computer onto a CD and gives it to police. The court found no REP on CD so no need for warrant
  9. ↑ R v Pommer, 2008 BCSC 423 (CanLII), CR (6th) 319, 2008 CarswellBC 1181, per D Smith J
  10. ↑ R v Stemberger, 2012 ONCJ 31 (CanLII), per Borenstein J, at paras 99, 110
  11. ↑ R v Little, 2009 CanLII 41212 (ON SC), OJ No 3278, per Fuerst J
  12. ↑ R v Tuduce, 2014 ONCA 547 (CanLII), 314 CCC (3d) 429, per Gillese JA
  13. ↑ R v Cole, 2009 CanLII 20699 (Sup. Ct.), 190 CRR (2d) 130, per Kane J rev'd 2011 ONCA 0218 aff'd 2012 SCC 53 (CanLII), per Fish J
    R v Ritter, 2006 ABPC 162 (CanLII), AR 249 (Prov. Ct.), per Fraser J
  14. ↑ Cole, supra
  15. ↑ R v McNeice, 2013 BCCA 98 (CanLII), 335 BCAC 35, per Finch JA

Online Data

Online Information

Activities online, even when in a public internet forum under a pseudonym, will retain a degree of privacy.[1]

  1. ↑ R v Ward, 2012 ONCA 660 (CanLII), 97 CR (6th) 377, per Doherty JA, at paras 71, 74
    R v Spencer, 2014 SCC 43 (CanLII), [2014] 2 SCR 212, per Cromwell J

Peer-to-Peer Software

Software installed on a computer that enables other persons on a network to access information and files on a computer, such as Peer-to-Peer software, is relevant to the courts usually in a child pornography cases.

US Courts have concluded that files found on a computer that are accessible and transferable over a peer-to-peer do not have a reasonable expectation of privacy due to the intention of the user.[1]

A shared directory in a peer-to-peer network has a lower expectation of privacy than a home.[2] The search of shared files on peer-to-peer network does not engage s. 8 of the Charter.[3] Equally, the text messages shared between users of the Gigatribe community are not protected either.[4]

  1. ↑ US v Ganoe, 538 F.3d 1117 (2008) ("although as a general matter an individual has an objectively reasonable expectation of privacy in his personal computer…we fail to see how this expectation can survive Ganoe’s decision to install and use file-sharing software, thereby opening his computer to anyone one else with the same freely available program.")
    State v Mahan, 2011 WL 4600044: the police internet investigation program "simply automated the ability to search information that had been placed in the public domain")
    US v Sawyer, 786 F. Supp. 2d 1352 (2011) suggested that once access is given to a “friend” the owner is giving up their right to privacy over those shareable files, simply because the police are not identifying themselves does not change things
  2. ↑ R v Caza, 2012 BCSC 525 (CanLII), BCJ No 725, per Powers J
  3. ↑ Caza, ibid., at paras 90 to 97, 113
  4. ↑ Caza, ibid.

Contents of Cell Phones

There is a division in the case law on the level of privacy there is for cell phones.

All cellphones, regardless of their capacity, is said to have a high expectation of privacy.[1]

There should be no distinction between cell phones and computers given the sophistication of phones.[2]

Where an accused suggests that he "found" a cell phone in his possession he cannot assert s. 8 Charter rights.[3]

The contents of a cell phone protected by s. 8, includes any information visible on the face of the locked screen after any button is pressed.[4]

  1. ↑ R v Fearon, 2014 SCC 77 (CanLII), [2014] 3 SCR 621, per Cromwell J
    see also R v Sheck, 2012 BCPC 39 (CanLII), per Bahen J, at para 17 (It is like "an archive of social, family and business activities")
  2. ↑ R v Vu, 2013 SCC 60 (CanLII), [2013] 3 SCR 657, per Cromwell J, at para 38
  3. ↑ R v Hebrada-Walters, 2013 SKCA 24 (CanLII), 409 Sask R 229, per Ottenbreit JA, at paras 35 to 38
  4. ↑ R v Millett, 2017 ABQB 9 (CanLII), AJ No 5, per Viet J

Closed Circuit Television

CCTV cameras recording public places outside generally do not have a reasonable expectation of privacy.[1]

A pole camera that is situated on public property, capturing nothing that a police officer could not see, without any recording of sound or enhanced observations are not proteced by an REP.[2]

Cameras found in common areas and hallways of apartment buildings are not protected by an expectation of privacy.[3]

CCTV footage from a commercial grocery store is not protected by an expectation of privacy.[4]

  1. ↑ R v Lebeau, 1998 CanLII 14635 (ON SC), 41 CCC (3d) 163, [1998] OJ No 51 (C. A.), per Ferrier J
    R v Shortreed, 1990 CanLII 10962 (ON CA), 54 CCC (3d) 292, [1990] OJ No 145 (CA), per LaCourciere JA
    Brown v Durham Regional Police, 1998 CanLII 7198 (ON CA), 43 OR (3d) 223, [1998] OJ No 5274 (CA), per Ferrier J
    R v Elzin, 1993 CanLII 3860 (QC CA), 82 CCC (3d) 455, per Chevalier J
    R v Bryntwick, 2002 CanLII 10941 (ON SC), [2002] OJ No 3618 (SCJ), per Dunn J
    contra R v Hoang, 2024 ONCA 361 (CanLII), per Sossin JA - suggests there may be times where privacy may exist
  2. ↑ Hoang, ibid.
  3. ↑ R v Zekarias, 2018 ONSC 4752 (CanLII), per MF Brown J
    R v Law, 2017 BCSC 1241 (CanLII), per Law J, at para 94
  4. ↑ R v Merritt, 2017 ONSC 366 (CanLII), per F Dawson J, at para 115

Vehicle Data Recorders

There is some division on whether there is a warrant needed to examine the data recorders that exist within vehicles.[1]

It has been suggested that a lawful seizure of a vehicle under s. 489(2) is sufficient to extinguish any subjective expectation of privacy over the contents the vehicle including on-board data.[2]

  1. ↑ R v Hamilton, 2014 ONSC 447 (CanLII), 65 MVR (6th) 239, per MacDougall J - warrant required
    R v Glenfield, 2015 ONSC 1304 (CanLII), 321 CCC (3d) 483, per Hambly J - warrant required
    R v Fedan, 2016 BCCA 26 (CanLII), 89 MVR (6th) 188, per D Smith J, leave to SCC dismissed - warrant not required
  2. ↑ Fedan, ibid.

Other Electronics devices

A building fob containing logs entry and exit of holder does not have an expectation of privacy.[1]

  1. ↑ R v Law, 2017 BCSC 1241 (CanLII), at para 94
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