R. v. Spencer

R. v. Spencer
Collection
Supreme Court Judgments
Date
2014-06-13
Neutral citation
2014 SCC 43
Report
[2014] 2 SCR 212
Case number
34644
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Saskatchewan
Subjects
Constitutional law
Notes
SCC Case Information: 34644
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212
Date: 20140613 Docket: 34644
Between:
Matthew David Spencer
Appellant
and
Her Majesty The Queen
Respondent
and
Director of Public Prosecutions,
Attorney General of Ontario,
Attorney General of Alberta,
Privacy Commissioner of Canada,
Canadian Civil Liberties Association and
Criminal Lawyers’ Association of Ontario
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment: (paras. 1 to 87)
Cromwell J. (McLachlin C.J. and LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ. concurring)
r. v. spencer, 2014 SCC 43, [2014] S.C.R. 212
Matthew David Spencer Appellant
v.
Her Majesty The Queen Respondent
and
Director of Public Prosecutions,
Attorney General of Ontario,
Attorney General of Alberta,
Privacy Commissioner of Canada,
Canadian Civil Liberties Association and
Criminal Lawyers’ Association of Ontario Interveners
Indexed as: R. v. Spencer
2014 SCC 43
File No.: 34644.
2013: December 9; 2014: June 13.*
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for saskatchewan
Constitutional law — Charter of Rights — Search and seizure — Privacy — Police having information that IP address used to access or download child pornography — Police asking Internet service provider to voluntarily provide name and address of subscriber assigned to IP address — Police using information to obtain search warrant for accused’s residence — Whether police conducted unconstitutional search by obtaining subscriber information matching IP address — Whether evidence obtained as a result should be excluded — Whether fault element of making child pornography available requires proof of positive facilitation — Criminal Code, R.S.C. 1985, c. C-46, ss. 163.1(3) , (4) , 487.014(1) — Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 7(3) (c.1)(ii) — Canadian Charter of Rights and Freedoms, s. 8 .
The police identified the Internet Protocol (IP) address of a computer that someone had been using to access and store child pornography through an Internet file-sharing program. They then obtained from the Internet Service Provider (ISP), without prior judicial authorization, the subscriber information associated with that IP address. The request was purportedly made pursuant to s. 7(3) (c.1)(ii) of the Personal Information Protection and Electronic Documents Act (PIPEDA ). This led them to the accused. He had downloaded child pornography into a folder that was accessible to other Internet users using the same file-sharing program. He was charged and convicted at trial of possession of child pornography and acquitted on a charge of making it available. The Court of Appeal upheld the conviction, however set aside the acquittal on the making available charge and ordered a new trial.
Held: The appeal should be dismissed.
Whether there is a reasonable expectation of privacy in the totality of the circumstances is assessed by considering and weighing a large number of interrelated factors. The main dispute in this case turns on the subject matter of the search and whether the accused’s subjective expectation of privacy was reasonable. The two circumstances relevant to determining the reasonableness of his expectation of privacy in this case are the nature of the privacy interest at stake and the statutory and contractual framework governing the ISP’s disclosure of subscriber information.
When defining the subject matter of a search, courts have looked not only at the nature of the precise information sought, but also at the nature of the information that it reveals. In this case, the subject matter of the search was not simply a name and address of someone in a contractual relationship with the ISP. Rather, it was the identity of an Internet subscriber which corresponded to particular Internet usage.
The nature of the privacy interest engaged by the state conduct turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought. In this case, the primary concern is with informational privacy. Informational privacy is often equated with secrecy or confidentiality, and also includes the related but wider notion of control over, access to and use of information. However, particularly important in the context of Internet usage is the understanding of privacy as anonymity. The identity of a person linked to their use of the Internet must be recognized as giving rise to a privacy interest beyond that inherent in the person’s name, address and telephone number found in the subscriber information. Subscriber information, by tending to link particular kinds of information to identifiable individuals, may implicate privacy interests relating to an individual’s identity as the source, possessor or user of that information. Some degree of anonymity is a feature of much Internet activity and depending on the totality of the circumstances, anonymity may be the foundation of a privacy interest that engages constitutional protection against unreasonable search and seizure. In this case, the police request to link a given IP address to subscriber information was in effect a request to link a specific person to specific online activities. This sort of request engages the anonymity aspect of the informational privacy interest by attempting to link the suspect with anonymously undertaken online activities, activities which have been recognized in other circumstances as engaging significant privacy interests.
There is no doubt that the contractual and statutory framework may be relevant to, but not necessarily determinative of, whether there is a reasonable expectation of privacy. In this case, the contractual and statutory frameworks overlap and the relevant provisions provide little assistance in evaluating the reasonableness of the accused’s expectation of privacy. Section 7(3) (c.1)(ii) of PIPEDA cannot be used as a factor to weigh against the existence of a reasonable expectation of privacy since the proper interpretation of the relevant provision itself depends on whether such a reasonable expectation of privacy exists. It would be reasonable for an Internet user to expect that a simple request by police would not trigger an obligation to disclose personal information or defeat PIPEDA ’s general prohibition on the disclosure of personal information without consent. The contractual provisions in this case support the existence of a reasonable expectation of privacy. The request by the police had no lawful authority in the sense that while the police could ask, they had no authority to compel compliance with that request. In the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. Therefore, the request by the police that the ISP voluntarily disclose such information amounts to a search.
Whether the search in this case was lawful will be dependent on whether the search was authorized by law. Neither s. 487.014(1) of the Criminal Code , nor PIPEDA creates any police search and seizure powers. Section 487.014(1) is a declaratory provision that confirms the existing common law powers of police officers to make enquiries. PIPEDA is a statute whose purpose is to increase the protection of personal information. Since in the circumstances of this case the police do not have the power to conduct a search for subscriber information in the absence of exigent circumstances or a reasonable law, the police do not gain a new search power through the combination of a declaratory provision and a provision enacted to promote the protection of personal information. The conduct of the search in this case therefore violated the Charter . Without the subscriber information obtained by the police, the warrant could not have been obtained. It follows that if that information is excluded from consideration as it must be because it was unconstitutionally obtained, there were not adequate grounds to sustain the issuance of the warrant and the search of the residence was therefore unlawful and violated the Charter .
The police, however, were acting by what they reasonably thought were lawful means to pursue an important law enforcement purpose. The nature of the police conduct in this case would not tend to bring the administration of justice into disrepute. While the impact of the Charter-infringing conduct on the Charter-protected interests of the accused weighs in favour of excluding the evidence, the offences here are serious. Society has a strong interest in the adjudication of the case and also in ensuring the justice system remains above reproach in its treatment of those charged with these serious offences. Balancing the three factors, the exclusion of the evidence rather than its admission would bring the administration of justice into disrepute. The admission of the evidence is therefore upheld.
There is no dispute that the accused in a prosecution under s. 163.1(3) of the Criminal Code must be proved to have had knowledge that the pornographic material was being made available. This does not require however, that the accused must knowingly, by some positive act, facilitate the availability of the material. The offence is complete once the accused knowingly makes pornography available to others. Given that wilful blindness was a live issue and that the trial judge’s error in holding that a positive act was required to meet the mens rea component of the making available offence resulted in his not considering the wilful blindness issue, the error could reasonably be thought to have had a bearing on the trial judge’s decision to acquit. The order for a new trial is affirmed.
Cases Cited
Referred to: R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. Trapp, 2011 SKCA 143, 377 Sask. R. 246; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; McInerney v. MacDonald, [1992] 2 S.C.R. 138; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; R. v. Collins, [1987] 1 S.C.R. 265; R. v. McNeice, 2010 BCSC 1544 (CanLII); R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 8 , 24(2) .
Criminal Code , R.S.C. 1985, c. C-46, ss. 163.1(3) , (4) , 487.014 .
Freedom of Information and Protection of Privacy Act, S.S. 1990-91, c. F-22.01, s. 29(2)(g).
Personal Information Protection and Electronic Documents Act , S.C. 2000, c. 5, ss. 3 , 5(3) , 7 , Sch. 1, cl. 4.3.
Authors Cited
Canada. Report of the Task Force established by the Department of Communications/Department of Justice. Privacy and Computers. Ottawa: Information Canada, 1972.
Gleicher, Nathaniel. “Neither a Customer Nor a Subscriber Be: Regulating the Release of User Information on the World Wide Web” (2009), 118 Yale L.J. 1945.
Gutterman, Melvin. “A Formulation of the Value and Means Models of the Fourth Amendment in the Age of Technologically Enhanced Surveillance” (1988), 39 Syracuse L. Rev. 647.
Hubbard, Robert W., Peter DeFreitas and Susan Magotiaux. “The Internet — Expectations of Privacy in a New Context” (2002), 45 Crim. L.Q. 170.
Hunt, Chris D. L. “Conceptualizing Privacy and Elucidating its Importance: Foundational Considerations for the Development of Canada’s Fledgling Privacy Tort” (2011), 37 Queen’s L.J. 167.
Paton-Simpson, Elizabeth. “Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places” (2000), 50 U.T.L.J. 305.
Slane, Andrea, and Lisa M. Austin. “What’s In a Name? Privacy and Citizenship in the Voluntary Disclosure of Subscriber Information in Online Child Exploitation Investigations” (2011), 57 Crim. L.Q. 486.
Westin, Alan F. Privacy and Freedom. New York: Atheneum, 1970.
APPEAL from a judgment of the Saskatchewan Court of Appeal (Cameron, Ottenbreit and Caldwell JJ.A.), 2011 SKCA 144, 377 Sask. R. 280, 528 W.A.C. 280, [2012] 4 W.W.R. 425, 283 C.C.C. (3d) 384, [2011] S.J. No. 729 (QL), 2011 CarswellSask 786, affirming the accused’s conviction for possession of child pornography and setting aside the accused’s acquittal for making available child pornography entered by Foley J., 2009 SKQB 341, 361 Sask. R. 1, [2009] S.J. No. 798 (QL), 2009 CarswellSask 905, and ordering a new trial. Appeal dismissed.
Aaron A. Fox, Q.C., and Darren Kraushaar, for the appellant.
Anthony B. Gerein, for the respondent.
Ronald C. Reimer and David Schermbrucker, for the intervener the Director of Public Prosecutions.
Susan Magotiaux and Allison Dellandrea, for the intervener the Attorney General of Ontario.
Jolaine Antonio, for the intervener the Attorney General of Alberta.
Mahmud Jamal, Patricia Kosseim, Daniel Caron and Sarah Speevak, for the intervener the Privacy Commissioner of Canada.
Anil K. Kapoor and Lindsay L. Daviau, for the intervener the Canadian Civil Liberties Association.
Jonathan Dawe and Jill R. Presser, for the intervener the Criminal Lawyers’ Association of Ontario.
The judgment of the Court was delivered by
Cromwell J. —
I. Introduction
[1] The Internet raises a host of new and challenging questions about privacy. This appeal relates to one of them.
[2] The police identified the Internet Protocol (IP) address of a computer that someone had been using to access and store child pornography through an Internet file-sharing program. They then obtained from the Internet Service Provider (ISP), without prior judicial authorization, the subscriber information associated with that IP address. This led them to the appellant, Mr. Spencer. He had downloaded child pornography into a folder that was accessible to other Internet users using the same file-sharing program. He was charged and convicted at trial of possession of child pornography and acquitted on a charge of making it available.
[3] At trial, Mr. Spencer claimed that the police had conducted an unconstitutional search by obtaining subscriber information matching the IP address and that the evidence obtained as a result should be excluded. He also testified that he did not know that others could have access to the shared folder and argued that he therefore did not knowingly make the material in the folder available to others. The trial judge concluded that there had been no breach of Mr. Spencer’s right to be secure against unreasonable searches and seizures. However, he was of the view that the “making available” offence required some “positive facilitation” of access to the pornography, which Mr. Spencer had not done, and further he believed Mr. Spencer’s evidence that he did not know that others could access his folder so that the fault element (mens rea) of the offence had not been proved. The judge therefore convicted Mr. Spencer of the possession offence, but acquitted him of the making available charge.
[4] The Court of Appeal upheld the conviction for possession of child pornography, agreeing with the trial judge that obtaining the subscriber information was not a search and holding that even if it were a search, it would have been reasonable. The court, however, set aside the acquittal on the making available charge on the basis that the trial judge had been wrong to require proof of positive facilitation of access by others to the material. A new trial was ordered on this charge.
[5] The appeal to this Court raises four issues which I would resolve as follows:
1. Did the police obtaining the subscriber information matching the IP address from the ISP constitute a search?
In my view, it did.
2. If so, was the search authorized by law?
In my view, it was not.
3. If not, should the evidence obtained as a result be excluded?
In my view, the evidence should not be excluded.
4. Did the trial judge err with respect to the fault element of the “making available” offence?
The judge did err and I would uphold the Court of Appeal’s order for a new trial.
II. Analysis
A. Did the Police Obtaining the Subscriber Information Matching the IP Address From the ISP Constitute a Search?
[6] Mr. Spencer maintains that the police were conducting a search when they obtained the subscriber information associated with the IP address from the ISP, Shaw Communications Inc. The respondent Crown takes the opposite view. I agree with Mr. Spencer on this point. I will first set out a summary of the relevant facts then turn to the legal analysis.
(1) Facts and Judicial History
[7] Mr. Spencer, who lived with his sister, connected to the Internet through an account registered in his sister’s name. He used the file-sharing program LimeWire on his desktop computer to download child pornography from the Internet. LimeWire is a free peer-to-peer file-sharing program that, at the time, anyone could download onto their computer. Peer-to-peer systems such as LimeWire allow users to download files directly from the computers of other users. LimeWire does not have one central database of files, but instead relies on its users to share their files directly with others. It is commonly used to download music and movies and can also be used to download both adult and child pornography. It was Mr. Spencer’s use of the file-sharing software that brought him to the attention of the police and which ultimately led to the search at issue in this case.
[8] Det. Sgt. Darren Parisien (then Cst.) of the Saskatoon Police Service, by using publicly available software, searched for anyone sharing child pornography. He could access whatever another user of the software had in his or her shared folder. In other words, he could “see” what other users of the file-sharing software could “see”. He could also obtain two numbers related to a given user: the IP address that corresponds to the particular Internet connection through which a computer accesses the Internet at the time and the globally unique identifier (GUID) number assigned to each computer using particular software. The IP address of the computer from which shared material is obtained is displayed as part of the file-sharing process. There is little information in the record about the nature of IP addresses in general or the IP addresses provided by Shaw to its subscribers. There is a description in R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at paras. 21-26, which also notes some of the differences that may exist among IP addresses. For the purposes of this case, what we know is that the IP address obtained by Det. Sgt. Parisien matched computer activity at the particular point in time that he was observing that activity.
[9] Det. Sgt. Parisien generated a list of IP addresses for computers that had shared what he believed to be child pornography. He then ran that list of IP addresses against a database which matches IP addresses with approximate locations. He found that one of the IP addresses was suspected to be in Saskatoon, with Shaw as the ISP.
[10] Det. Sgt. Parisien then determined that Mr. Spencer’s computer was online and connected to LimeWire. As a result, he (along with any LimeWire user) was able to browse the shared folder. He saw an extensive amount of what he believed to be child pornography. What he lacked was knowledge of where exactly the computer was and who was using it.
[11] To connect the computer usage to a location and potentially a person, investigators made a written “law enforcement request” to Shaw for the subscriber information including the name, address and telephone number of the customer using that IP address. The request, which was purportedly made pursuant to s. 7(3) (c.1)(ii) of the Personal Information Protection and Electronic Documents Act , S.C. 2000, c. 5 (PIPEDA ), indicated that police were investigating an offence under the Criminal Code , R.S.C. 1985, c. C-46 , pertaining to child pornography and the Internet and that the subscriber information was being sought as part of an ongoing investigation. (The full text of the relevant statutory provisions is set out in an Appendix.) Investigators did not have or try to obtain a production order (i.e. the equivalent of a search warrant in this context).
[12] Shaw complied with the request and provided the name, address and telephone number of the customer associated with the IP address, Mr. Spencer’s sister. With this information in hand, the police obtained a warrant to search Ms. Spencer’s home (where Mr. Spencer lived) and seize his computer, which they did. The search of Mr. Spencer’s computer revealed about 50 child pornography images and two child pornography videos.
[13] Mr. Spencer was charged with possessing child pornography contrary to s. 163.1(4) of the Criminal Code and making child pornography available over the Internet contrary to s. 163.1(3). There is no dispute that the images found in his shared folder were child pornography.
[14] At trial, Mr. Spencer sought to exclude the evidence found on his computer on the basis that the police actions in obtaining his address from Shaw without prior judicial authorization amounted to an unreasonable search contrary to s. 8 of the Canadian Charter of Rights and Freedoms . The trial judge rejected this contention and convicted Mr. Spencer of the possession count. On appeal, the Saskatchewan Court of Appeal upheld the judge’s decision with respect to the search issue.
(2) Was the Request to Shaw a Search?
[15] Under s. 8 of the Charter , “[e]veryone has the right to be secure against unreasonable search or seizure.” This Court has long emphasized the need for a purposive approach to s. 8 that emphasizes the protection of privacy as a prerequisite to individual security, self-fulfilment and autonomy as well as to the maintenance of a thriving democratic society: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 156-57; R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 427-28; R. v. Plant, [1993] 3 S.C.R. 281, at pp. 292-93; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 12-16; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733, at para. 22.
[16] The first issue is whether this protection against unreasonable searches and seizures was engaged here. That depends on whether what the police did to obtain the subscriber information matching the IP address was a search or seizure within the meaning of s. 8 of the Charter . The answer to this question turns on whether, in the totality of the circumstances, Mr. Spencer had a reasonable expectation of privacy in the information provided to the police by Shaw. If he did, then obtaining that information was a search.
[17] We assess whether there is a reasonable expectation of privacy in the totality of the circumstances by considering and weighing a large number of interrelated factors. These include both factors related to the nature of the privacy interests implicated by the state action and factors more directly concerned with the expectation of privacy, both subjectively and objectively viewed, in relation to those interests: see, e.g., Tessling, at para. 38; Ward, at para. 65. The fact that these considerations must be looked at in the “totality of the circumstances” underlines the point that they are often interrelated, that they must be adapted to the circumstances of the particular case and that they must be looked at as a whole.
[18] The wide variety and number of factors that may be considered in assessing the reasonable expectation of privacy can be grouped under four main headings for analytical convenience: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances: Tessling, at para. 32; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 27; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 40. However, this is not a purely factual inquiry. The reasonable expectation of privacy standard is normative rather than simply descriptive: Tessling, at para. 42. Thus, while the analysis is sensitive to the factual context, it is inevitably “laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy”: Patrick, at para. 14; see also R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 34, and Ward, at paras. 81-85.
[19] I can deal quite briefly with two aspects of the appeal. The trial judge in this case held that there was no subjective expectation of privacy in this case: 2009 SKQB 341, 361 Sask. R. 1, at para. 18. However, as I will explain below, the trial judge reached this conclusion by incorrectly defining the subject matter of the search. On the proper understanding of the scope of the search, Mr. Spencer’s subjective expectation of privacy in his online activities can readily be inferred from his use of the network connection to transmit sensitive information: Cole, at para. 43. Mr. Spencer’s direct interest in the subject matter of the search is equally clear. Though he was not personally a party to the contract with the ISP, he had access to the Internet with the permission of the subscriber and his use of the Internet was by means of his own computer in his own place of residence.
[20] The main dispute in this case thus turns on the subject matter of the search and whether Mr. Spencer’s subjective expectation of privacy was reasonable. The two circumstances relevant to determining the reasonableness of his expectation of privacy in this case are the nature of the privacy interest at stake and the statutory and contractual framework governing the ISP’s disclosure of subscriber information.
[21] In this case, I have found it helpful to look first at the subject matter of the search, then at the nature of the privacy interests implicated by the state actions and then finally at the governing contractual and statutory framework. While these subjects are obviously interrelated, approaching the analysis under these broad headings provides a degree of focus while permitting full examination of the “totality of the circumstances”.
(a) The Subject Matter of the Search
[22] Mr. Spencer alleges that the police request to Shaw is a state action that constitutes a search or seizure for the purposes of s. 8 of the Charter . We must therefore consider what the subject matter of that request was in order to be able to identify the privacy interests that were engaged by it.
[23] In many cases, defining the subject matter of the police action that is alleged to be a search is straightforward. In others, however, it is not. This case falls into the latter category. The parties and the courts below have markedly divergent perspectives on this important issue, a divergence which is reflected in the jurisprudence: see, for example, the authorities reviewed in Ward, at para. 3.
[24] Mr. Spencer contends that the subject matter of the alleged search was core biographical data, revealing intimate and private information about the people living at the address provided by Shaw which matched the IP address. The Crown, on the other hand, maintains that the subject matter of the alleged search was simply a name, address and telephone number matching a publicly available IP address.
[25] These divergent views were reflected in the decisions of the Saskatchewan courts. The trial judge adopted the Crown’s view that what the police sought and obtained was simply generic information that does not touch on the core of Mr. Spencer’s biographical information. Ottenbreit J.A. in the Court of Appeal was of largely the same view. For him, the information sought by the police in this case simply established the identity of the contractual user of the IP address. The fact that this information might eventually reveal a good deal about the activity of identifiable individuals on the Internet was, for him, “neither here nor there”: 2011 SKCA 144, 377 Sask. R. 280, at para. 110 (see also R. v. Trapp, 2011 SKCA 143, 377 Sask. R. 246, at paras. 119-24 and 134). In contrast to this approach, Caldwell J.A. (Cameron J.A. concurring on this point) held that in characterizing the subject matter of the alleged search, it is important to look beyond the “mundane” subscriber information such as name and address (para. 22). The potential of that information to reveal intimate details of the lifestyle and personal choices of the individual must also be considered: see also Trapp, per Cameron J.A., at paras. 33-37.
[26] I am in substantial agreement with Caldwell and Cameron JJ.A. on this point. While, in many cases, defining the subject matter of the search will be uncontroversial, in cases in which it is more difficult, the Court has taken a broad and functional approach to the question, examining the connection between the police investigative technique and the privacy interest at stake. The Court has looked at not only the nature of the precise information sought, but also at the nature of the information that it reveals.
[27] A number of decisions of the Court reflect this approach. I begin with Plant. There, the Court, dealing with informational privacy, stressed the strong claim to privacy in relation to information that is at the “biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”: p. 293. Importantly, the Court went on to make clear that s. 8 protection is accorded not only to the information which is itself of that nature, but also to “information which tends to reveal intimate details of the lifestyle and personal choices of the individual”: ibid. (emphasis added).
[28] Tessling took the same approach, although it led to a different conclusion. The subject matter of the alleged search was held to be the heat emitted from the surface of a building. The Forward Looking Infra-Red (FLIR) imaging technique was used to help assess the activities that transpired inside a house, but the heat emissions by themselves could not distinguish between one heat source and another. In short, the heat emanations were, on their own, meaningless because they did not permit any inferences about the precise activity giving rise to the heat: paras. 35-36. The critical question was: what inferences about activity inside the home — admittedly a highly private zone — did the FLIR images support?
[29] I turn next to R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, and the companion appeal in R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569. While the Court divided on other points, it was unanimous in holding that the dog sniff of Mr. Kang-Brown’s bag constituted a search. As explained by both Deschamps and Bastarache JJ., the dog sniffing at the air in the vicinity of the bag functioned as an investigative procedure that allowed for a “strong, immediate and direct inference” about what was or was not inside the bag: Deschamps J., at paras. 174-75; Bastarache J., at para. 227. Thus, while the “information” obtained by the sniffer dog was simply the smell of the air outside the bag, the dog’s reaction to it provided the police with a strong inference as to what was inside. As Binnie J. put it in A.M. (which concerned a dog sniff of the accused’s backpack), “[b]y use of the dog, the policeman could ‘see’ through the concealing fabric of the backpack”: para. 67.
[30] How to characterize the subject matter of an alleged search was addressed by the Court most recently in Gomboc. While the Court was divided on other matters, it was unanimous about the framework that must be applied in considering the subject matter of a “search”. The Court considered the strength of the inference between data derived from a digital recording ammeter (DRA) and particular activities going on in a residence in assessing whether use of the DRA constituted a search. Abella J. (Binnie and LeBel JJ. concurring) took into account “the strong and reliable inference that can be made from the patterns of electricity consumption . . . as to the presence within the home of one particular activity”: para. 81 (emphasis added). The Chief Justice and Fish J. referred to the fact that the DRA data “sheds light on private activities within the home”: para. 119. Deschamps J. (Charron, Rothstein and Cromwell JJ. concurring) spoke in terms of the extent to which the DRA data was revealing of activities in the home: para. 38.
[31] Thus, it is clear that the tendency of information sought to support inferences in relation to other personal information must be taken into account in characterizing the subject matter of the search. The correct approach was neatly summarized by Doherty J.A. in Ward, at para. 65. When identifying the subject matter of an alleged search, the court must not do so “narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action”: ibid.
[32] Applying this approach to the case at hand, I substantially agree with the conclusion reached by Cameron J.A. in Trapp and adopted by Caldwell J.A. in this case. The subject matter of the search was not simply a name and address of someone in a contractual relationship with Shaw. Rather, it was the identity of an Internet subscriber which corresponded to particular Internet usage. As Cameron J.A. put it, at para. 35 of Trapp:
To label information of this kind as mere “subscriber information” or “customer information”, or nothing but “name, address, and telephone number information”, tends to obscure its true nature. I say this because these characterizations gloss over the significance of an IP address and what such an address, once identified with a particular individual, is capable of revealing about that individual, including the individual’s online activity in the home.
[33] Here, the subject matter of the search is the identity of a subscriber whose Internet connection is linked to particular, monitored Internet activity.
(b) Nature of the Privacy Interest Potentially Compromised by the State Action
[34] The nature of the privacy interest engaged by the state conduct is another facet of the totality of the circumstances and an important factor in assessing the reasonableness of an expectation of privacy. The Court has previously emphasized an understanding of informational privacy as confidentiality and control of the use of intimate information about oneself. In my view, a somewhat broader understanding of the privacy interest at stake in this case is required to account for the role that anonymity plays in protecting privacy interests online.
[35] Privacy is admittedly a “broad and somewhat evanescent concept”: Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 67. Scholars have noted the theoretical disarray of the subject and the lack of consensus apparent about its nature and limits: see, e.g., C. D. L. Hunt, “Conceptualizing Privacy and Elucidating its Importance: Foundational Considerations for the Development of Canada’s Fledgling Privacy Tort” (2011), 37 Queen’s L.J. 167, at pp. 176-77. Notwithstanding these challenges, the Court has described three broad types of privacy interests — territorial, personal, and informational — which, while often overlapping, have proved helpful in identifying the nature of the privacy interest or interests at stake in particular situations: see, e.g., Dyment, at pp. 428-29; Tessling, at paras. 21-24. These broad descriptions of types of privacy interests are analytical tools, not strict or mutually-exclusive categories.
[36] The nature of the privacy interest does not depend on whether, in the particular case, privacy shelters legal or illegal activity. The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought. To paraphrase Binnie J. in Patrick, the issue is not whether Mr. Spencer had a legitimate privacy interest in concealing his use of the Internet for the purpose of accessing child pornography, but whether people generally have a privacy interest in subscriber information with respect to computers which they use in their home for private purposes: Patrick, at para. 32.
[37] We are concerned here primarily with informational privacy. In addition, because the computer identified and in a sense monitored by the police was in Mr. Spencer’s residence, there is an element of territorial privacy in issue as well. However, in this context, the location where the activity occurs is secondary to the nature of the activity itself. Internet users do not expect their online anonymity to cease when they access the Internet outside their homes, via smartphones, or portable devices. Therefore, here as in Patrick, at para. 45, the fact that a home was involved is not a controlling factor but is nonetheless part of the totality of the circumstances: see, e.g., Ward, at para. 90.
[38] To return to informational privacy, it seems to me that privacy in relation to information includes at least three conceptually distinct although overlapping understandings of what privacy is. These are privacy as secrecy, privacy as control and privacy as anonymity.
[39] Informational privacy is often equated with secrecy or confidentiality. For example, a patient has a reasonable expectation that his or her medical information will be held in trust and confidence by the patient’s physician: see, e.g., McInerney v. MacDonald, [1992] 2 S.C.R. 138, at p. 149.
[40] Privacy also includes the related but wider notion of control over, access to and use of information, that is, “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others”: A. F. Westin, Privacy and Freedom (1970), at p. 7, cited in Tessling, at para. 23. La Forest J. made this point in Dyment. The understanding of informational privacy as control “derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit” (Dyment, at p. 429, quoting from Privacy and Computers, the Report of the Task Force established by the Department of Communications/Department of Justice (1972), at p. 13). Even though the information will be communicated and cannot be thought of as secret or confidential, “situations abound where the reasonable expectations of the individual that the infor