Indexed As: R. v. Spencer (M.D.)

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) (34644; 2014 SCC 43; 2014 CSC 43) Indexed As: R. v. Spencer (M.D.) Supreme Court of Canada McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ. June 13, 2014. Summary: The accused was charged with possession of child pornography and making available child pornography. The accused brought an application, alleging several violations of his rights under the Charter. The Saskatchewan Court of Queen's Bench, in a decision reported at 361 Sask.R. 1, dismissed the application. The accused was found guilty of possession of child pornography and not guilty of making available child pornography. The accused appealed the conviction. The Crown appealed the acquittal. The Saskatchewan Court of Appeal, in a decision reported at 377 Sask.R. 280; 528 W.A.C. 280, dismissed the accused's appeal, allowed the Crown's appeal and ordered a new trial. The accused appealed. The Supreme Court of Canada dismissed the appeal, affirmed the conviction on the possession count and upheld the Court of Appeal's order for a new trial on the making available count. Civil Rights - Topic 1508 Property - General principles - Expectation of privacy - [See Civil Rights - Topic 1642]. Civil Rights - Topic 1642 Property - Search and seizure - Search - What constitutes - The accused brought an application, alleging that the actions of the officer in obtaining the accused's identity and address without a search warrant from Shaw Communications represented an unreasonable search and search contrary to s. 8 of the Charter - The officer had used software to obtain the internet protocol (IP) addresses of computer sharing files containing apparent child pornography and from that IP address one could readily determine the particular internet service provider (in this case, Shaw) - The officer made a law enforcement request to Shaw who complied with the identity of the IP address's user, i.e., the accused - The Supreme Court of Canada held that 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 - This turned on whether the accused had a reasonable expectation of privacy in the information provided to the police by Shaw - The

police request to Shaw for subscriber information corresponding to specifically observed, anonymous internet activity engaged a high level of informational privacy - There was a reasonable expectation of privacy in the subscriber information - The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous - A request by a police officer that an ISP voluntarily disclose such information amounted to a search - See paragraphs 15 to 67. Civil Rights - Topic 1646 Property - Search and seizure - Unreasonable search and seizure defined - The accused was charged with possession of child pornography and making available child pornography - The accused brought an application, alleging that the actions of the officer in obtaining the accused's identity and address without a search warrant from Shaw Communications represented an unreasonable search and search contrary to s. 8 of the Charter - The officer had used software to obtain the internet protocol (IP) addresses of computer sharing files containing apparent child pornography and from that IP address one could readily determine the particular internet service provider (in this case, Shaw) - The officer made a law enforcement request to Shaw who complied with the identity of the IP address's user, i.e., the accused - The trial judge dismissed the application - The Court of Appeal allowed an appeal, relying on the combined effect of s. 487.014 of the Criminal Code and s. 7(3)(c.1)(ii) of the Personal Information Protection and Electronic Documents Act (PIPEDA) to find the search lawful - The Supreme Court of Canada held that the search violated s. 8 of the Charter where it was not lawful - Neither s. 487.014(1) of the Code, nor the PIPEDA created any police search and seizure powers - Section 487.014(1) was a declaratory provision that confirmed the existing common law powers of police to make enquiries - The PIPEDA was a statute whose purpose was to increase the protection of personal information - Here, the police did not have the power to conduct a search for subscriber information in the absent of exigent circumstances or a reasonable law and they did not gain a new search power through the combination of a declaratory provision and a provision enacted to promote the protection of personal information - See paragraphs 68 to 74. Civil Rights - Topic 8368 Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with possession of child pornography and making available child pornography - The accused brought an application, alleging that the actions of the officer in obtaining the accused's identity and address without a search warrant from Shaw Communications represented an unreasonable search and search contrary to s. 8 of the Charter - The officer had used software to obtain the internet protocol (IP) addresses of computer sharing files containing apparent child pornography and from that IP address one could readily determine the particular internet service provider (in this case, Shaw) - The officer made a law enforcement request to Shaw who complied with the identity of the IP address's user, i.e., the accused - The Supreme Court of Canada held that the search violated s. 8 of the Charter where it was not lawful - However, after applying the factors in R. v. Grant (D.) (SCC 2009), the court declined to exclude the evidence - Firstly, the police conduct could not be characterized as either "wilful or flagrant disregard of the Charter" - Secondly, the impact of the Charter-

infringing conduct on the accused was serious - Thirdly, given the seriousness of the charges, there was a heightened interest in seeing a determination of the merits - Balancing the three factors, exclusion of the evidence rather than its admission would bring the administration of justice into disrepute - See paragraphs 75 to 81. Criminal Law - Topic 575.2 Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Distribution of child pornography (incl. making available, possession for the purpose of distribution or sale, etc.) - The accused obtained a number of computer files containing child pornography, both pictures and video, from others over the internet through his use of filesharing software, i.e., "LimeWire" - He retained the files he had downloaded in a "shared" folder on his personal computer and others were able to view and download his collection of child pornography using the same or similar file-sharing software - The trial judge convicted the accused of possession of child pornography - The trial judge found that the accused did not have the requisite intent to share his child pornography files with others and therefore acquitted the accused on the charge of making available child pornography (Criminal Code, s. 163.1(3)) - The Crown appealed the acquittal, asserting that the trial judge erred by finding that passively allowing file sharing to occur did not meet the mens rea requirements of the offence but that an accused had to have taken active steps to make child pornography available - The Court of Appeal allowed the appeal and ordered a new trial - The trial judge's conclusion that the mens rea element of s. 163.1(3) required that an accused knowingly make available child pornography was correct - However, the trial judge erred in finding that a "positive step or action" was required to meet the mens rea requirement - He erred because "he misapprehended the plain meaning of the text of s. 163.1(3), misapprehended Parliament's intention in creating the offence under s. 163.1(3) and misapprehended the characteristics of the offence in the context of file sharing over the Internet" - The Supreme Court of Canada upheld the Court of Appeal's order for a new trial on the making available count - See paragraphs 82 to 86. Trade Regulation - Topic 9404 Protection of personal information and electronic documents - General - Application and interpretation of legislation (e.g., Personal Information Protection & Electronic Documents Act) - [See Civil Rights - Topic 1646]. Cases Noticed: R. v. Ward (D.) (2012), 296 O.A.C. 298; 112 O.R.(3d) 321; 2012 ONCA 660, refd to. [para. 8]. Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 15]. R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 15]. R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 15]. R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 15]. United Food and Commercial Workers, Local 401 v. Privacy Commissioner (Alta.) et al.,

[2013] 3 S.C.R. 733; 451 N.R. 253; 561 A.R. 359; 594 W.A.C. 359; 2013 SCC 62, refd to. [para. 15]. R. v. Patrick (R.S.), [2009] 1 S.C.R. 579; 387 N.R. 44; 454 A.R. 1; 455 W.A.C. 1; 2009 SCC 17, refd to. [para. 18]. R. v. Cole (R.) et al., [2012] 3 S.C.R. 34; 436 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 18]. R. v. Gomboc (D.J.) (2010), 408 N.R. 1; 490 A.R. 327; 497 W.A.C. 327; 2010 SCC 55, refd to. [para. 18]. R. v. Trapp (B.A.) (2011), 377 Sask.R. 246; 528 W.A.C. 246; 2011 SKCA 143, refd to. [para. 25]. R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 29]. R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 29]. Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 35]. McInerney v. MacDonald, [1992] 2 S.C.R. 138; 137 N.R. 35; 126 N.B.R.(2d) 271; 317 A.P.R. 271, refd to. [para. 39]. R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 40]. R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351, refd to. [para. 43]. R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 50]. R. v. Vu (T.L.), [2013] 3 S.C.R. 657; 451 N.R. 199; 345 B.C.A.C. 155; 589 W.A.C. 155; 2013 SCC 60, refd to. [para. 50]. R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 68]. R. v. McNeice (K.G.), [2010] B.C.T.C. Uned. 1544; 2010 BCSC 1544, refd to. [para. 72]. R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 76]. R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86; 2010 SCC 13, refd to. [para. 84]. R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 86]. Statutes Noticed: Criminal Code, R.S.C. 1985, c. C-46, sect. 163.1, sect. 487.014(1) [Appendix]. Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, sect. 7(3) [Appendix]. Authors and Works Noticed: Department of Communications/Department of Justice, Privacy and Computers (1972), p. 13 [para. 40]. Gleicher, N., Neither a Customer Nor a Subscriber Be: Regulating the Release of User Information on the World Wide Web (2009), 118 Yale L.J. 1945, pp. 1948, 1949 [para. 46]. Gutterman, M., 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, p.

706 [para. 44]. Hubbart, R.W., DeFreitas, P., and Magotiaux, S., The Internet - Expectations of Privacy in a New Context (2002), 45 Crim. L.Q. 170, pp. 189 to 191 [para. 46]. Hunt, C.D.L., Conceptualizing Privacy and Elucidating its Importance: Foundational Considerations for the Development of Canada's Privacy Tort (2011), 37 Queen's L.J.167, pp. 176, 177 [para. 35]. Patton-Simpson, E., Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places (2000), 50 U.T.L.J. 305, pp. 325, 326 [para. 44]. Slane, A., and Austin, L.M., 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, p. 501 [para. 43]. Westin, A.F., Privacy and Freedom (1970), p. 7 [para. 40]. Counsel: 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. Solicitors of Record: McDougall Gauley, Regina, Saskatchewan, for the appellant; Attorney General for Saskatchewan, Regina, Saskatchewan, for the respondent; Public Prosecution Service of Canada, Edmonton, Alberta, and Halifax, Nova Scotia, for the intervener, the Director of Public Prosecutions; Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario; Attorney General of Alberta, Calgary, Alberta, for the intervener, the Attorney General of Alberta; Osler, Hoskin & Harcourt, Toronto, Ontario, for the intervener, the Privacy Commissioner of Canada; Kapoor Barristers, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association; Dawe & Dineen, Toronto, Ontario; Schreck Presser, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association of Ontario. This appeal was heard on December 9, 2013, by McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. The

following judgment of the Supreme Court was delivered in both official languages by Cromwell, J., on June 13, 2014. Editor: Anick Ouellette-Levesque Appeal dismissed.