R v Spencer and the Right to Remain Anonymous

R v Spencer and the Right to Remain Anonymous

By Cayda Rubin

R v Spencer (https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14233/index.do) is a 2014 constitutional law case from the Supreme Court of Canada (SCC). It is an important constitutional “moment” in Canadian history because it was the first time the SCC recognized that there may be a privacy interest in one’s online information – especially in the context of remaining anonymous.

In 2007, Matthew David Spencer was charged with possessing child pornography contrary to section 163.1(4) of the Criminal Code and “making available” child pornography contrary to section 163.1(3).

Mr. Spencer, a resident of Saskatoon, used the online file-sharing program, LimeWire, to download several files of child pornography. The Saskatoon police discovered the IP address of a computer sharing what was believed to be child pornography. Matching the IP address against a database of various locations, they found that it was attached to a computer in Saskatoon, with Shaw Communications (Shaw) as the Internet Service Provider (ISP). The police sent a written “law enforcement request” to Shaw asking for the subscriber information attached to the IP address, including the user’s name, address, and telephone number. Shaw’s voluntary cooperation led to Mr. Spencer’s identity being revealed to the police. With this information, the police obtained a warrant to search Mr. Spencer’s home and seize his computer. The search of his computer revealed the pornographic files.

This case is significant as Mr. Spencer challenged the constitutionality of the police’s actions in obtaining his subscriber information from his ISP. Mr. Spencer argued that, without first obtaining proper authority from a court (a warrant), the police’s request to Shaw constituted an unlawful “search”, violating his section 8 Canadian Charter of Rights and Freedoms (Charter) right against unreasonable search and seizure. The SCC agreed.

The purpose of section 8 of the Charter is to protect a person’s reasonable expectation of privacy. To determine whether Mr. Spencer had a reasonable expectation of privacy for his online information, the Court analyzed:

  1. the subject matter of the search; and
  2. the nature of the privacy interest in question.

The Court concluded that the subject matter of the search was not merely Mr. Spencer’s basic subscriber information, but rather that information in connection with his particular online activities. In determining the privacy interest, the Court elaborated on the three notions of informational privacy: privacy as secrecy, privacy as control, and privacy as anonymity. Writing for the Court, Justice Cromwell explained that by attempting to connect subscriber information to anonymous online activity, the police’s actions engaged the anonymity aspect of Mr. Spencer’s informational privacy interest. Deciding that Mr. Spencer had a reasonable expectation of privacy over his Internet activities, a warrantless police request to his ISP amounted to an unlawful search, and violated his section 8 Charter rights.

Section 24(2) of the Charter, which provides remedies for those whose rights have been violated, states that any property found by means of a section 8 violation can be excluded as evidence in a trial. Despite determining that the police had committed an “unreasonable search”, the SCC ultimately upheld the inclusion of the evidence. As the police in conducting their investigation believed that they were acting under lawful means, the Court determined excluding the evidence would bring the administration of justice into disrepute. Without the information from the search, the Crown would have no evidence to base as case on. The SCC decision affirmed Mr. Spencer’s conviction on the possession of child pornography offence, and upheld the Court of Appeal’s order for a new trial on the “making available” offence.

This decision had practical implications for the future of police investigations. As it was found that police need a warrant to request subscriber information (except in pressing circumstances), the practice of sending voluntary “law enforcement requests” to ISPs is no longer a viable means of obtaining a suspect’s information.

Despite the criminal subject matter at the heart of R v Spencer, its findings on informational privacy interests has significant implications for the future of Internet privacy. Not only was it determined that, depending on the circumstances, there is a significant privacy interest in one’s online information, but that Internet users have a reasonable expectation of privacy online. The Court’s recognition that information, especially in the context of the Internet, is more than just someone’s name or home address is distinctly important in an age where the quantity and quality of information stored about Internet users is ever increasing.

This content has been updated on 24 January 2017 at 11 h 39 min.

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