|
Internet - Criminal. 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.
Here, the court holds that requests for IP addresses from third parties constitute a 'search', and thus require a warrant (ie. prior judicial authorization):[85] In my view, however, requiring that police obtain prior judicial authorization before obtaining an IP address is not an onerous investigative step, and it would not unduly interfere with law enforcement’s ability to deal with this crime. Where the IP address, or the subscriber information, is sufficiently linked to the commission of a crime, judicial authorization is readily available and adds little to the information police must already provide for a Spencer production order. For example, under s. 487.015(1) of the Criminal Code, R.S.C. 1985, c. C-46, a production order for information relating to a specified transmission of a communication is available if there are reasonable grounds to suspect that an offence has been or will be committed. Police often apply for and obtain multiple authorizations to protect different territorial privacy interests. The same is true to protect informational privacy.
[86] On balance, the burden imposed on the state by recognizing a reasonable expectation of privacy in IP addresses pales compared to the substantial privacy concerns implicated in this case. Law enforcement will need to demonstrate enough grounds to intrude on an individual’s privacy but, in the age of telewarrants and around-the-clock access to justices of the peace, this burden is not onerous. Police engaging in legitimate investigatory activities can readily establish the requisite constitutional grounds. Recognizing that an IP address attracts s. 8 protection will not thwart police investigations involving IP addresses; rather, it aims to make sure police investigations better reflect what each reasonable Canadian expects from a privacy perspective and from a crime control perspective.
[87] A reasonable expectation of privacy limits the state to searches motivated by legitimate law enforcement concerns. The benefits to privacy are significant. Judicial pre-authorization considerably narrows the state’s online reach and prevents it from acquiring the details of a user’s online life revealed by their IP address that are not relevant to the investigation. This significantly reduces the potential of any “arbitrary and even discriminatory” exercises of discretion that would empower the state to identify information about any Internet user it pleases for any reason it sees fit (L. M. Austin, “Getting Past Privacy? Surveillance, the Charter, and the Rule of Law” (2012), 27 C.J.L.S. 381, at p. 392). In a democratic society, it is “inconceivable that the state should have unrestricted discretion to target whomever it wishes for surreptitious [digital] surveillance” (R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, at p. 47).
[88] Judicial oversight in respect of an IP address is the way to accomplish s. 8’s goal of preventing infringements on privacy. Since Hunter, we have held that s. 8 seeks to prevent breaches of privacy, not to condemn or condone breaches after the fact based on the state’s use of that information. Privacy, once breached, cannot be restored.
[89] Finally, judicial oversight removes the decision to disclose information — and how much to disclose — from private corporations and returns it to the purview of the Charter. The increase in state power occasioned by the Internet is thus offset by a broad, purposive approach to s. 8 that meets our “new social, political and historical realities” (Hunter, at p. 155). To leave it to the private sector to decide whether to provide police with information that may betray our most intimate selves strikes an unacceptable blow to s. 8. To leave the protection of the Charter to the next intended step in the investigation is insufficient. As I have explained, the next step might be too late.
[90] Thus, viewed normatively, s. 8 of the Charter ought to extend a reasonable expectation of privacy to IP addresses. They provide the state with the means through which to obtain information of a deeply personal nature about a specific Internet user and, ultimately, their identity whether or not another warrant is required. An IP address plays an integral role in maintaining privacy on the Internet. It is the key to unlocking an Internet user’s online activity and the key to identifying the user behind online activity. Given these serious privacy concerns, the public’s interest in being left alone should prevail over the relatively straightforward burden imposed on law enforcement. Recognizing a reasonable expectation of privacy in IP addresses would ensure that the veil of privacy all Canadians expect when they access the Internet is only lifted when an independent judicial officer is satisfied that providing this information to the state will serve a legitimate law enforcement purpose.
[91] In my view, the reasonable and informed person concerned about the long‑term consequences of government action for the protection of privacy would conclude that IP addresses should attract a reasonable expectation of privacy. Extending s. 8’s reach to IP addresses protects the first “digital breadcrumb” and therefore obscures the trail of an Internet user’s journey through the cyberspace.
V. Disposition
[92] I would find the request by the state for an IP address is a search under s. 8 of the Charter. I would allow the appeal, set aside the conviction, and order a new trial. . R. v. Bertrand Marchand
In R. v. Bertrand Marchand (SCC, 2023) the Supreme Court of Canada strikes down the mandatory minimum sentencing 'child luring' provisions of CCC 172.1(2)(a-b) under Charter s.12 ['cruel and unusual treatment or punishment'].
In these provisions the court reviews the s.172.1 child luring provisions:[1] Modern means of communication, including the internet, permit unprecedented and unsupervised access to children[1] in many places once thought to be safe havens, such as their homes. Children, who now spend significant amounts of time online, are increasingly susceptible to online exploitation and abuse. The dangers of sexualizing children are increasingly well‑documented and the harms that result from their victimization are now more fully understood. As a result, Parliament has taken several steps to prevent and punish the various forms that abuse of children may take, including enacting a separate offence of child luring, which is set out at s. 172.1(1) of the Criminal Code, R.S.C. 1985, c. C-46. This offence is committed when an adult uses technology to communicate with a child, or a person believed to be a child, for the purposes of facilitating a designated secondary sexual offence against that child.[2] Luring is a hybrid offence that carries two different mandatory minimum periods of incarceration depending on whether the Crown elects to proceed summarily or by indictment.
....
II. The Luring Offence
[6] Since 1987, Parliament has taken a “child‑centred” approach to sexual offences against children, emphasized the inherently exploitative nature of adult/child sexual contact, and focussed on the profound harms these crimes produce (see Bill C‑15, An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985, c. 19 (3rd Supp.); Friesen, at para. 53).
[7] To protect a range of social interests, Parliament enacted the offence of “luring a child”, at s. 172.1 of the Criminal Code, in 2002 (Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, s. 8), and introduced the mandatory minimum sentences in s. 172.1(2)(a) and (b) of that provision, in 2012 (Safe Streets and Communities Act, S.C. 2012, c. 1, s. 22). The online world and digital communications between adults and children warrant special regulation because children are particularly vulnerable to manipulation in online settings (R. v. Rayo, 2018 QCCA 824, at para. 141 (CanLII), per Kasirer J.A.). The internet has infinitely expanded the opportunity for offenders to attract or ensnare children and the enactment of a distinct crime protects them from the possibility of sexual exploitation facilitated by the internet (R. v. Reynard, 2015 BCCA 455, 378 B.C.A.C. 293, at para. 19). The luring offence helps keep children safe in a virtual environment and was intended to meet “the very specific danger posed by certain kinds of communications via computer systems” (R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 36, per Doherty J.A.).
[8] Parliament thus created this inchoate preparatory offence to criminalize sexualized communications with children that precede or pave the way for the perpetration of other offences set out in the Criminal Code (Rayo, at para. 9; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 25; Alicandro, at para. 20, citing A. Ashworth, Principles of Criminal Law (5th ed. 2006), at pp. 468‑70). The purpose of s. 172.1 is both remedial and preventative. It was enacted “to combat the very real threat posed by adult predators who attempt to groom or lure children by electronic means” (Morrison, at para. 39). The provision seeks to safeguard children from sexual abuse by identifying and apprehending offenders before they commit a designated offence (Legare, at paras. 25-27, citing Alicandro).
[9] Section 172.1(1) and (2) reads:172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or
(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. [10] The text, context and purpose of s. 172.1(1) demonstrates that it casts, and was intended to cast, a wide net of potential liability for those who lure children in a virtual environment. This provision is triggered by communicating by a means of telecommunication, which is defined broadly in s. 35(1) of the Interpretation Act, R.S.C. 1985, c. I-21. While the communication must be for the purpose of facilitating any one of the designated secondary offences against children found in s. 172.1, there are 20 such secondary offences listed. The scope of these secondary offences is extensive and covers a wide range of conduct, including sexual exploitation, sexual assault, incest and child pornography.
[11] Section 172.1(1) proscribes communicating by telecommunication with an underage person or a person the accused believes to be underage for the purpose of facilitating the commission of the designated secondary offences with respect to that person (R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, at para. 23; Morrison, at para. 4). While a specific intention to facilitate a designated secondary offence forms part of the requisite mens rea, criminal liability will “crystallize” before any actions are taken on the part of the accused to engage in a designated offence (R. v. Collins, 2013 ONCA 392). The offence of luring does not require that the parties ever meet or touch.
[12] Though luring requires that an offender intend to facilitate the commission of a listed secondary offence, the offence of luring is separate and independent from that secondary offence. The preparatory conduct of luring, meant to “culminate in the commission of a completed crime” (Legare, at para. 25), produces its own distinct form of wrongfulness and harms. By making luring a discrete offence, Parliament indicated that these illegal communications generate harms that are different from those caught in the secondary offences in s. 172.1(1), and they are sufficiently wrongful and harmful to ground criminal liability.
[13] Many cases of luring involve multiple communications over a period of time, or what is sometimes described as “grooming”. However, luring does not require sustained contact. When the other elements of the offence are satisfied, the offence can be committed even by sending one message.
[14] The luring offence captures communications sent to an actual child, which means a person under 18 years of age (or 16 or 14, depending on the applicable paragraph). It also applies whenever the adult believes the recipient of the communication is a child, even if that is not in fact the case. As a result, criminal liability may arise when the adult’s internet interlocutor is really a police officer pretending to be a child during a “sting operation”.
[15] Child luring is a hybrid offence, meaning that the Crown can choose, based on factors such as the seriousness of the accused’s actions and the harm caused, to proceed either by indictment or summarily. Parliament has set two mandatory minimum penalties for luring, in s. 172.1(2)(a) and (b), depending on how the charge is laid. The indictable offence of luring for which Mr. Bertrand Marchand was charged carries a mandatory minimum punishment of one year’s imprisonment and a maximum of 14 years. The summary conviction offence for which H.V. was charged carries a mandatory minimum punishment of six months’ imprisonment and a maximum of two years less a day. Both offenders pleaded guilty to child luring and challenged the constitutionality of these mandatory minimum punishments as applied to themselves or other reasonably foreseeable offenders. Mr. Bertrand Marchand’s sentence for one of the designated secondary offences, sexual interference, is not at issue in this appeal.
....
(1) The Wrongfulness of Luring
[34] Sexual offences against children are crimes that wrongfully exploit children’s vulnerability (Friesen, at para. 5). In committing the offence of luring, the adult takes advantage of the child’s weaker position and lack of experience and by doing so repudiates the fundamental value of protecting children (para. 65; R. v. Melrose, 2021 ABQB 73, [2021] 8 W.W.R. 467, at para. 54). Children are particularly exposed and helpless online: the internet allows offenders direct, sometimes anonymous, and often secret or unsupervised access to children, frequently in the privacy and safety of their own homes (R. v. Folino (2005), 2005 CanLII 40543 (ON CA), 77 O.R. (3d) 641 (C.A.), at para. 25; R. v. Symes, [2005] O.J. No. 6041 (QL), at para. 29; R. v. Paradee, 2013 ABCA 41, 542 A.R. 222, at para. 12; R. v. Hajar, 2016 ABCA 222, [2016] 12 W.W.R. 435, at paras. 279-80). In these online fora, there is often very little that can be done to shield children from the inherent power imbalance present in luring (R. v. Sutherland, 2019 NWTSC 48, [2020] 3 W.W.R. 771, at para. 50; Hajar, at para. 279). Luring wrongfully takes advantage of this unsupervised access to children and “wrongfully exploits children’s vulnerabilities” (R. v. Wall, 2023 ABPC 3, at para. 42 (CanLII)).
[35] The sexualization of children is itself morally blameworthy conduct. Luring invades a child’s personal autonomy, sexual integrity, and gravely wounds their dignity (Friesen, at para. 51). Using any person as a means to an end is unethical, but an adult’s manipulation of a child to satisfy their sexual urges is highly blameworthy conduct. It is for these reasons that luring is recognized as “manifestly harmful and wrongful” (R. v. Misay, 2021 ABQB 485, [2022] 1 W.W.R. 145, at para. 52). Even when the only interactions with the child occur online, the offender’s conduct is inherently wrong because it still constitutes a form of sexual abuse (R. v. R.S.F., 2021 MBQB 261, at para. 91 (CanLII)). While the degree of exploitation may vary from case to case, the wrongfulness of the exploitation of children is always relevant to the gravity of the offence (Friesen, at para. 78).
(2) The Separate Harm of Luring
[36] It is now well established that sexual offences against children cause significant harm. The adverse impacts of sexual violence against children hinder normal social growth, and can cause several lasting psychosocial problems. When children are young, inexperienced and still developing, the harms caused by even a single instance of sexual violence can permanently alter the course of their lives. Many survivors carry childhood sexual abuse with them throughout their adulthood, and it can permeate every aspect of their lives.
[37] This Court has noted that “[e]ven in child luring cases where all interactions occur online, the offender’s conduct can constitute a form of psychological sexual violence that has the potential to cause serious harm” (Friesen, at para. 82, citing R. v. Rafiq, 2015 ONCA 768, 342 O.A.C. 193). With sexual abuse comes serious emotional and psychological harm that “may often be more pervasive and permanent in its effect than any physical harm” (Friesen, at para. 56, citing R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72, at p. 81). Victims of luring often suffer a range of negative impacts including negative sexual development, subsequent substance misuse and depressive symptomology (G. N. Say et al., “Abuse Characteristics and Psychiatric Consequences Associated with Online Sexual Abuse” (2015), 18 Cyberpsychol., Behav., and Soc. Netw. 333).
[38] Child luring can also cause distinct psychological and developmental harms to young victims that differ in two main ways from harms arising from sexual contact initiated in person. First, online communication allows “for abusers to get into the victim’s head and abuse remotely” and for “manipulation and control over time” which can lead to serious and lasting psychological consequences (Rafiq, at para. 44). Because the communications in luring often intentionally emulate positive relationships, it can be difficult for victims to trust anyone intimately following this experience (E. Hanson, “The Impact of Online Sexual Abuse on Children and Young People”, in J. Brown, ed., Online Risk to Children: Impact, Protection and Prevention (1st ed. 2017), 97, at p. 115).
[39] Second, since offenders cannot physically touch their victims when communicating with them online, their power and the effectiveness of their strategies often lie in the degree to which they can control the victim and manipulate them into engaging with the abuse. Victims of luring often feel that they actively participated in their own abuse, which may increase self-blame, internalization and shame. This worsens the psychological harm (J. Steel et al., “Psychological sequelae of childhood sexual abuse: abuse-related characteristics, coping strategies, and attributional style” (2004), 28 Child Abuse & Negl. 785, at pp. 795-96; P. Gilbert, “What Is Shame? Some Core Issues and Controversies”, in P. Gilbert and B. Andrews, eds., Shame: Interpersonal Behavior, Psychopathology and Culture (1998), 3, at p. 27).
[40] Prior jurisprudence has shed light on this distinct harm. In R. v. J.R., 2021 ONCJ 14, at para. 16 (CanLII), the victim described the confusion, shame and emotional harm that accompanied the luring and extortion she faced. In Rayo, the victim experienced feelings of guilt, shame and anxiety, and reported that [translation] “she had lost confidence in herself and that the events had led her to self-mutilation and suicidal thoughts” (para. 174). In R. v. Roy, 2020 QCCQ 4546, the victim had difficulty sleeping for several weeks following the offence, lost confidence in herself and still struggled to trust others (para. 51 (CanLII)). In R.S.F., although the victim was not physically touched, “her mind was manipulated”, she had “nightmares about being hurt again” and she suffered from “overwhelming and significant anxiety, depression and post-traumatic disorder” (paras. 34-35).
[41] Friesen recognized that sexual violence against children also affects other people in the victims’ lives (para. 76). The Court highlighted the harmful ripple effects on families, community and society (para. 63). Child luring can similarly destroy trust in friends, families and social institutions and cause children to shut parents out of their lives. In Rayo, the luring prompted a severe conflict between the child and her mother (para. 174). In Rafiq, the luring led the victim to close herself off from her family (paras. 40-41).
[42] Identifying the distinct harms of luring in each case may prove more or less difficult, depending on the circumstances. In cases where luring is the standalone offence, identifying the distinct harm may be more straightforward. However, in cases where the luring actually manifests in the commission of a secondary offence, identifying the distinct harm of luring may be more challenging.
[43] One way to identify the distinct harms at play is for courts to differentiate between contact‑driven luring, where the offender’s goal is to facilitate in-person sexual abuse, and luring that leads to sexual abuse occurring entirely online (see R. v. M.B., 2020 ONSC 7605, at para. 78 (CanLII), for an example in relation to child pornography). In the latter context, the online medium is the primary setting where the abuse takes place and the offender may have no intention to take the abuse offline. In the context of contact‑driven luring, the online environment can, but need not, play a significant role in the sexual abuse. The technology may sometimes function solely as a medium to gain physical access to a victim. Where the luring is contact‑driven, sentencing judges should consider whether the online communication caused psychological harm that stands separate and apart from the harm of any secondary offence that may have been committed. Victims of contact sexual abuse can be sexually exploited and psychologically manipulated online by their offenders both before and after they were abused offline. It is an error to presume that luring cannot engender independent harm.
[44] Other times, the aim of luring will be to commit a designated secondary offence set out in s. 172.1(1) that occurs entirely online. This might encompass a range of behaviours including sexual chat, the sharing of sexualized photos or videos, or viewing or performing sexual acts by video, all of which may be encapsulated within the secondary offences of invitation to sexual touching or the child pornography offences (J. A. Kloess et al., “A Qualitative Analysis of Offenders’ Modus Operandi in Sexually Exploitative Interactions With Children Online” (2017), 29 Sex. Abuse 563, at pp. 584‑87). In such circumstances, the offender uses technology to build a relationship, assert control and psychologically manipulate young persons, and may also use that same technology to then carry out sexual acts. In such circumstances, it might be difficult to decipher whether the luring caused distinct psychological harm, as the harm caused by the luring might resemble the harm caused by the underlying offence which also occurred online.
[45] Contact‑driven luring is not necessarily more or less harmful than luring that leads to sexual abuse that occurs entirely online. The severity of the harm caused by the online communication will depend on the individual offender and his or her offending goals, the individual characteristics of the victim, and the unique dynamic between the offender and the victim.
....
(4) Summary
[48] Friesen’s analytical approach necessitates an understanding of the inherent wrongfulness and distinct harms of luring and Parliament’s sentencing goals. Understanding the wrongfulness and harmfulness of the luring offence is integral to properly assessing the gravity of the offence and the degree of responsibility of the offender, as well as to avoiding stereotypical reasoning and the misidentification of aggravating and mitigating factors (para. 50). ...
....
[170] This Court’s decision in Friesen demands a more robust understanding of the wrongfulness and harms of luring, which will often yield greater penalties. However, given the enormous breadth of the luring offences, there will still be cases in which the mandatory minimum will be so out of sync with the realities of the gravity of the offence and the moral blameworthiness of the offender so as to shock the conscience of an informed public.
[171] Indeed, despite strong statements in Friesen about the inherent wrongfulness and harmfulness of sexual violence against children, the Court expressly cautioned that their comments should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability. The proportionality principle still governs to require that “the punishment imposed be ‘just and appropriate . . . and nothing more’” (para. 91, quoting M. (C.A.), at para. 80 (emphasis deleted)).
|
