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Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Purpose. R. v. Bykovets [IP addresses]
In R. v. Bykovets (SCC, 2024) the Supreme Court of Canada considers an important case on Charter s.8 ["unreasonable search or seizure"] and the internet, specifically the police requesting IP addresses used in certain credit card transactions from third parties without a warrant:I. Introduction
[1] The Internet has shifted much of the human experience from physical spaces to cyberspace. It has grown to encompass public squares, libraries, markets, banks, theatres, and concert halls, becoming the most expansive cultural artifact our species has ever created. Along with our shopping mall and our town hall, for many of us, the Internet has become a constant companion, through which we confide our hopes, aspirations, and fears. Individuals use the Internet not only to find recipes, pay bills, or get directions, but also to explore their sexualities, to map out their futures, and to find love.
[2] These new realities have forced courts to grapple with “a host of new and challenging questions about privacy” (R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 1). In Spencer, this Court determined that a reasonable expectation of privacy attaches to subscriber information — the name, address, and contact information — associated with an individual Internet Protocol (IP) address. A request for this information by the state is a “search” under s. 8 of the Canadian Charter of Rights and Freedoms.
[3] This appeal asks whether an IP address itself attracts a reasonable expectation of privacy. The answer must be yes.
[4] An IP address is a unique identification number. IP addresses identify Internet-connected activity and enable the transfer of information from one source to another. They are necessary to access the Internet. An IP address identifies the source of every online activity and connects that activity (through a modem) to a specific location. And an Internet Service Provider (ISP) keeps track of the subscriber information that attaches to each IP address.
[5] But because IP addresses consist of numbers that can usually be changed by an ISP without notice, the Crown submits — and the majority of the Court of Appeal agreed — that an IP address does not attract a reasonable expectation of privacy. Here, the Crown contends that police were after no more than the collection of numbers that would ultimately allow them to obtain the production order contemplated by Spencer. Thus, the Crown reasons, the state did not infringe on the appellant’s right to privacy because Spencer sufficiently protected his personal information.
[6] I respectfully disagree. This analysis runs counter to this Court’s jurisprudence under s. 8 of the Charter. We have never approached privacy piecemeal, based on police’s stated intention to use the information they gather in only one way. The right against unreasonable search and seizure, like all Charter rights, must receive a broad and purposive interpretation, reflective of its constitutional source. Since Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, we have held that s. 8 seeks to prevent breaches of privacy, rather than to condemn or condone breaches based on the state’s ultimate use of that information. Privacy, once breached, cannot be restored.
[7] To that end, our Court has applied a normative standard to reasonable expectations of privacy. We have defined s. 8 in terms of what privacy should be — in a free, democratic, and open society — balancing the individual’s right to be left alone against the community’s insistence on protection. This normative standard demands we take a broad, functional approach to the subject matter of the search and that we focus on its potential to reveal personal or biographical core information (R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 32).
[8] Informational privacy is particularly critical — and particularly challenging. Our jurisprudence recognizes that computers are unique and present privacy risks that differ from s. 8’s traditional objects. Thus, this Court has determined that s. 8 generally prevents police from seizing a computer without a warrant — even though the device itself provides no information without judicial permission to search its contents — because seizing the computer gives the state the means through which to access its content (R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 34).
[9] Casting the subject matter of this search as an abstract string of numbers used solely to obtain a Spencer warrant goes against these precedents. IP addresses are not just meaningless numbers. Rather, as the link that connects Internet activity to a specific location, IP addresses may betray deeply personal information — including the identity of the device’s user — without ever triggering a warrant requirement. The specific online activity associated with the state’s search can itself tend to reveal highly private information. Correlated with other online information associated with that IP address, such as that volunteered by private companies or otherwise collected by the state, an IP address can reveal a range of highly personal online activity. And when associated with the profiles created and maintained by private third parties, the privacy risks associated with IP addresses rise exponentially. The information collected, aggregated and analyzed by these third parties lets them catalogue our most intimate biographical information. Viewed normatively and in context, an IP address is the first digital breadcrumb that can lead the state on the trail of an individual’s Internet activity. It may betray personal information long before a Spencer warrant is sought.
[10] And the Internet has concentrated this mass of information with private third parties operating beyond the Charter’s reach. In this way, the Internet has fundamentally altered the topography of informational privacy under the Charter by introducing third-party mediators between the individual and the state — mediators that are not themselves subject to the Charter. Private corporations respond to frequent requests by law enforcement and can volunteer all activity associated with the requested IP address. Private corporate citizens can volunteer granular profiles of an individual user’s Internet activity over days, weeks, or months without ever coming under the aegis of the Charter. This information can strike at the heart of a user’s biographical core and can ultimately be linked back to a user’s identity, with or without a Spencer warrant. It is a deeply intrusive invasion of privacy.
[11] Weighed against society’s legitimate interest in privacy is society’s legitimate interest in “[s]afety, security and the suppression of crime” (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 17). While the right to be left alone must keep pace with technological developments, the way in which crime is committed and investigated also evolves. Easy access to the Internet and user anonymity combine to facilitate the commission of crime and challenge effective law enforcement. Clearly, the particularly insidious nature of much online crime, including child pornography and luring, presents serious and pressing social harm. Police must have the tools to investigate these crimes. And when an IP address (or subscriber information) is clearly linked to a crime — as it obviously can be for child pornography or luring — prior judicial authorization is readily available. A production order for an IP address would require little additional information to what police must already provide for a Spencer warrant. Both society’s interest in effective law enforcement and its interest in protecting the informational privacy rights of all Canadians must be respected and balanced.
[12] On balance, the burden imposed on the state by recognizing a reasonable expectation of privacy in IP addresses is not onerous. This recognition adds another step to criminal investigations by requiring that the state show grounds to intrude on privacy online. But in the age of telewarrants, this hurdle is easily overcome where the police seek the IP address in the investigation of a criminal offence. Section 8 protection would let police pursue the Internet activity related to their law enforcement goals while barring them from freely seeking the IP address associated with online activity not related to the investigation. Judicial oversight would also remove the decision of whether to reveal information — and how much to reveal — from private corporations and return it to the purview of the Charter.
[13] As a crucial component inherent in the structure of the Internet, an IP address is the key that can lead the state through the maze of a user’s Internet activity and is the link through which intermediaries can volunteer that user’s information to the state. Thus, s. 8 ought to protect IP addresses. Doing so would safeguard the first “digital breadcrumb” and shroud the trail of an Internet user’s journey through cyberspace; it would further s. 8’s purpose of preventing potential infringements of privacy rather than circumscribe its scope according to the state’s stated intentions about how it will use this key.
[14] I would allow the appeal. There is a reasonable expectation of privacy in an IP address. A request by the state for an IP address constitutes a search.
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IV. Analysis
[28] This appeal raises a single issue: Does a reasonable expectation of privacy attach to an IP address? In my view, the answer is yes. As I will explain, an IP address is the crucial link between an Internet user and their online activity. Thus, the subject matter of this search was the information these IP addresses could reveal about specific Internet users including, ultimately, their identity. To find that s. 8 does not extend to an IP address because police collected it only to obtain a Spencer warrant ignores the information it can reveal without a warrant. Such an analysis reflects piecemeal reasoning based on how the state intends to use the information in a specific case, contrary to the broad, purposive approach required by s. 8’s constitutional status. Nor can the analysis be limited to the privacy interests affected by what the IP address can reveal on its own, without consideration of what it can reveal in combination with other available information, particularly from third-party websites. Viewed normatively, an IP address is the key to unlocking a user’s Internet activity and, ultimately, their identity, such that it attracts a reasonable expectation of privacy. If s. 8 is to meaningfully protect the online privacy of Canadians in today’s overwhelmingly digital world, it must protect their IP addresses. . R. v. Campbell [reasonable expectation of privacy]
In R. v. Campbell (SCC, 2024) the Supreme Court of Canada dismissed a criminal appeal, this from a dismissal of an Ontario Court of Appeal, and that from a trial judge's finding that convicted the defendant "of trafficking and possession offences under the CDSA and sentenced him to a term of imprisonment".
Here the court considers whether the defendant had a 'reasonable expectation of privacy' under Charter s.8:[34] Mr. Campbell has standing if he establishes that he had a reasonable expectation of privacy in his text message conversation with who he thought was Mr. Gammie, in which case the police conducted a “search” under s. 8 of the Charter. It would then be necessary to consider whether the search was “unreasonable” under s. 8 of the Charter (see R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 35-36; Marakah, at paras. 10 and 12; R. v. Bykovets, 2024 SCC 6, at para. 30).
[35] As I will explain, I agree with the Court of Appeal that Mr. Campbell had a reasonable expectation of privacy in his text message conversation, and he therefore has standing to allege that the police infringed his rights under s. 8 of the Charter.
(1) Legal Principles
[36] Section 8 of the Charter guarantees that “[e]veryone has the right to be secure against unreasonable search or seizure.” The main purpose of s. 8 is to protect the right to privacy from unjustified state intrusion (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 160; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 291; Bykovets, at para. 29).
[37] The right to privacy is foundational to a free and democratic society. It is essential to “individual dignity, autonomy, and personal growth” (Bykovets, at para. 29; see also Plant, at p. 292; R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 38), and to “the relationship between the state and the citizen” (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 12). In an oft-quoted passage in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at pp. 427-28, La Forest J. wrote that “[t]he restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.” A similar sentiment was echoed by Binnie J. in Tessling, who observed that “[f]ew things are as important to our way of life as the amount of power allowed the police to invade the homes, privacy and even the bodily integrity of members of Canadian society without judicial authorization” (para. 13).
[38] A central preoccupation of this Court’s s. 8 jurisprudence has been to balance the often competing aims of personal privacy and the public interest. This quest for balance reflects the constitutional imperative in s. 8 itself, which, expressed negatively, protects against an unreasonable search and seizure or, expressed positively, safeguards only a reasonable expectation of privacy (Hunter, at p. 159). In Hunter, Dickson J., as he then was, explained that s. 8 requires “an assessment . . . as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement” (pp. 159‑60). In Tessling, Binnie J. added that “[t]he community wants privacy but it also insists on protection. Safety, security and the suppression of crime are legitimate countervailing concerns” (para. 17; see also Plant, at pp. 291-92).
[39] Section 8 of the Charter is engaged where a person has a “reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access” (Marakah, at para. 10, quoting Cole, at para. 34). A claimant seeking standing to argue that their rights under s. 8 were infringed must show that they subjectively expected the subject matter of the search would remain private, and that their expectation was objectively reasonable having regard to “the totality of the circumstances” (Marakah, at para. 10, quoting R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at paras. 31 and 45; see also R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at paras. 17-18; Jones, at para. 13). In making this evaluation, courts are guided by four lines of inquiry: (1) the subject matter of the alleged search; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether the claimant’s subjective expectation of privacy was objectively reasonable (Marakah, at para. 11; Cole, at para. 40; Spencer, at para. 18; Bykovets, at para. 31).
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