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Charter - s.8 - 'Reasonable Expectation of Privacy'. R. v. Knelsen
In R. v. Knelsen (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal which sought to exclude text messages from evidence, here where the appeal court found no Charter s.8 'privacy interest'.
Here the court notes an alternative approach to finding a Charter s.8 privacy breach, here where "there is no reasonable expectation of privacy in text messages where the messages themselves constitute a crime against the recipient":An Alternative Approach
[61] The Crown’s alternative argument proposes a second and narrower approach, which I will address briefly in the event I am wrong in my conclusion that the “totality of the circumstances” does not support the appellant’s reasonable expectation of privacy in the text messages.
[62] The Crown submits that this court should adopt in the alternative the interpretation of Mills that was offered by Trotter J.A. in Campbell, a 2022 decision of this court. In that case, while they were arresting a known drug dealer, G, the police seized two cell phones, one of which lit up with text messages that the police believed revealed a drug transaction in progress. The police impersonated G with the aim of having drugs delivered to his residence. When Mr. Campbell arrived at the residence with drugs, he was arrested for various offences. He was ultimately convicted. On appeal, this court concluded that the trial judge erred in failing to find a reasonable expectation of privacy in Mr. Campbell’s text messages with G, but ultimately upheld the decision to admit the evidence on the basis of the exigent circumstances doctrine.[7]
[63] Similar to Mills, Campbell was a case in which the police had employed an investigative technique where they had accessed an offender’s electronic messages without prior authorization and impersonated the person with whom the offender was communicating. In the course of his reasons, Trotter J.A. rejected the Crown’s argument that Mills had recognized that there is no true search – and therefore no reasonable expectation of privacy – in electronic communications where, as a result of an investigative technique, the police initiated or became involved in the exchange. Rather, he interpreted Mills as having “carved out an exception in circumstances where the electronic communications themselves constitute a crime against the recipient” – in that case, the victimization of children: at para. 62. See also Lambert, at para. 60, where Paciocco J.A., in obiter, similarly suggested that there is no reasonable expectation of privacy in an electronic message sent by a Charter claimant to a victim where the electronic messages are used to commit the offence.
[64] To the extent that Mills carves out an exception that there is no reasonable expectation of privacy in text messages where the messages themselves constitute a crime against the recipient, this case falls squarely within that exception. The text messages sent by the appellant to the complainant constituted the offence of child luring: they were sent to the complainant to further the commission of the offences of sexual assault and sexual interference. As such, the appellant had no reasonable expectation of privacy in the messages.
[65] Accordingly, I accept the Crown’s alternative argument for concluding that the appellant lacked standing under s. 8 of the Charter to challenge the admissibility of the text messages at his trial. . R. v. Hoang [pole cameras]
In R. v. Hoang (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal against convictions under the Controlled Drugs and Substances Act, here involving a Charter s.8 search and seizure application regarding the use of a 'pole camera':[19] The application judge found that the use of the pole camera, on public property and capturing only the outside area of the appellant’s residence, was not an illegal search.[2]
[20] Applying the test set out in R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 32, the application judge held that there was no reasonable expectation of privacy in the circumstances. The recordings, although surreptitiously made, were taken from a device situated on public property, did not record audio, and captured activity at the front of the house that was visible to the public eye.
[21] Although the appellant had a direct interest in the subject matter of the recording, there was no evidence that he had a subjective expectation of privacy in the subject matter of the recording. Even if he had asserted a subjective expectation of privacy, the application judge held that the expectation was highly diminished given the nature of the recordings. They captured only what was “plain view” in front of his home, did not use any enhanced recording devices or tools, and did not capture any core biographical information.
[22] The application judge distinguished this from cases involving recordings of common areas that attracted a higher expectation of privacy, such as a common area within a private condominium building, or the enclosed backyard of a private home: see e.g., R. v. Yu, 2019 ONCA 942, 383 C.C.C. (3d) 260, leave to appeal refused, R. v. Mai, [2020] S.C.C.A. No. 38; R. v. Wong, 2017 BCSC 306.
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(1) The application judge did not err in finding that the use of the pole camera was not a search under s. 8 of the Charter
[36] The Supreme Court of Canada has recently summarized the law on s. 8 in R. v. Bykovets, 2024 SCC 6, at paras. 30-31:To establish a breach of s. 8, a claimant must show there was a search or seizure, and that the search or seizure was unreasonable ...
A search occurs where the state invades a reasonable expectation of privacy. An expectation of privacy is reasonable where the public’s interest in being left alone by the government outweighs the government’s interest in intruding on the individual’s privacy to advance its goals, notably those of law enforcement. Courts analyze an expectation of privacy by considering many interrelated by often competing factors, which can be grouped together under four categories: (1) the subject matter of the search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy; and (4) whether the subjective expectation of privacy was objectively reasonable. [Citations omitted.] [37] See also Tessling, at para. 32.
[38] This case concerns the appellant’s expectation of privacy of information, described in Tessling, at para. 23, as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” (quoting A. F. Westin, Privacy and Freedom (1970), at p. 7).
[39] Like in Bykovets, in this case there was no real dispute that the appellant had an interest in the subject matter of the surveillance and a subjective expectation of privacy over the driveway and front entrance to his house. The core issue was whether his expectation of privacy in the subject matter of the recording was objectively reasonable.
[40] In Bykovets, at paras. 37-43, the Supreme Court warned against an unduly narrow description of the subject matter of the search. The court stated that the description should take a broad and functional view of the subject matter, examining not only the information itself but also how it may support inferences in relation to other personal information. In that case, the court held that a reasonable expectation of privacy existed with respect to IP addresses, which allowed whoever obtained such an address to collect a user’s Internet activity.
[41] In this case, the pole camera was pointed at the appellant’s house, monitoring and recording everyone who came and went at all times of the day for a period of 8 days between July 9-17, 2018. Police then summarized the surveillance information so as to document who was coming and going from the house, their licence plate and car model, the time and date they were present and what they were doing. The application judge concluded that “the recordings, although surreptitiously made, were taken from a device situated on public property, did not record audio, and captured activities and traffic (both pedestrian and vehicular) at the front of the house, visible to the public eye.”
[42] The application judge found that there was no objective expectation of privacy over this public space. She based this finding on the existing case law, and distinguished the circumstances before her from cases where similar surveillance cameras captured common areas in a private condominium building (Yu, at para. 26), or the backyard of a private home bordered by trees, retaining walls and a fence preventing a public view of the backyard area (Wong, at para. 33).
[43] The appellant does not contend that the application judge erred in her application of the Tessling factors in light of the existing case law. Rather, the appellant argues that the approach to the expectation of privacy in the wake of technological advances such as pole cameras should evolve. As the appellant explains in his factum:A pole camera has a Big Brother undertone to it. Undertone that becomes the very melody when you consider the contemporary availability of ubiquitous wireless networks and increased availability of miniature devices at nominal costs as well as the massive digital storage media now available. All this means entire streets, neighborhoods, cities could be continuously recorded. Unlimited amounts of information about what its citizens are up to could be gathered by the state authorities. The pole camera is truly “the camel’s nose under the tent.” [44] According to the appellant, while his driveway and front of the house were visible to the public, this does not mean that he had no reasonable expectation of privacy over that space from technologically enhanced 24/7 surveillance. In short, he had a “right to be left alone.”
[45] The appellant referred approvingly to the Fourth Amendment jurisprudence from the United States which has recognized the long-term use of pole camera surveillance as a search for purposes of the U.S. constitutional protection from unlawful search and seizure. In United States v. Moore-Bush, 36 F.4th 320 (1st Cir. 2022), pole camera surveillance lasting eight months was found to constitute a search for purposes of the U.S. Fourth Amendment analysis:Mindful of the brave new world that the routine use of such all-encompassing, long-term video surveillance of the front curtilage of a home could bring about, we are convinced that the government does conduct a search within the meaning of the Fourth Amendment when it accesses the record that it creates through surveillance of that kind ... . [46] As a general proposition, it may well be that pole camera surveillance could give rise to an objective expectation of privacy over the subject matter of the recording within the s. 8 Charter analysis, based on its duration, the scope and nature of its surveillance, the basis for its placement or because of other contextual or technological factors. This general proposition stems from the broad and functional view of the subject matter of such a recording, which could potentially capture information about an accused's comings and goings as well as who they associate with and what activities they take part in. In the circumstances of this case, however, where the pole camera captured only the public space that an individual police investigator would have seen from the same distance, without any additional capture of sound or close-up camera angles, and for a limited period of time, such broader concerns do not arise.
[47] I see no error in the application judge’s analysis of the pole camera. She carefully considered the Tessling factors and applied them to the facts before her. As the application judge found, if there was any expectation of privacy by the appellant over the public space in front of the house captured by the pole camera, it was “highly diminished” and did not constitute a search for purposes of s. 8 of the Charter. . R. v. Bykovets
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. At paras 44-84 the court considers whether an expectation of privacy was 'reasonable'.
. R. v. Bykovets
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.
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