New & Notable: 278.1 Restored

The Supreme Court today released its ruling in Quesnelle addressing the scope of section 278.1 and discussing the privacy rights of victims of crime: R v Quesnelle, 2014 SCC 46. The Court unanimously overturned the Ontario Court of Appeal’s ruling (2013 ONCA 180). Two aspects of the ONCA ruling were, in my view, troubling. I commented on them in a blog at the time: A Drastic but Unfortunate Shift in the Law of Disclosure. First, the ONCA’s ruling that there were no privacy interests in police occurrence reports was flawed; and second, the ONCA’s ruling that police reports made in relation to other occurrences were not captured by the exclusionary clause of 278.1 (in other words, other occurrence reports were “records” and subject to privacy protections). The Supreme Court agrees with me (or at least that is how I see it).

In its unanimous ruling, authored by Karakastanis J, the court reviewed section 278.1 and outlined the issue on appeal as “whether these provisions apply to police occurrence reports prepared in the investigation of previous incidents involving a complainant or witness and not the offence being prosecuted. The question is whether these unrelated police occurrence reports count as “records” as defined in s. 2781. Such that the statutory regime limits apply” [para 1]. In short, the Court answered this issue as follows:

I conclude that the Mills regime applies to police occurrence reports that are not directly related to the charges against the accusedPrivacy is not an all or nothing right. Individuals involved in a criminal investigation do not forfeit their privacy interest for all future purposes; they reasonably expect that personal information in police reports will not be disclosed in unrelated matters.  Moreover, while the regime exempts investigatory and prosecutorial records, that exemption applies only to records made in relation to the particular offence in question.
Accordingly, I agree with the trial judge that the unrelated police occurrence reports at issue were “records” within the definition of s. 278.1  and thus subject to the Mills regime.  The trial judge was entitled to conclude that the reports should not be disclosed.  I would allow the appeal, set aside the order for a new trial, and restore the conviction, remitting the sentence appeal to the Court of Appeal. [Emphasis added]; [paras 2-3].

In the analysis of this issue the Court discussed two areas: (i) principles governing disclosure; and (ii) whether “unrelated” police occurrence reports are “records”.

With respect to the principles, the Court noted Stinchcombe, McNeil and O’Connor and then offered the following comments on the Mills regime:

The regime reflects Parliament’s intention to accommodate and reconcile the right of the accused to make full answer and defence with the privacy and equality rights of complainants in sexual offence cases.  In the words of Professor Lise Gotell, the regime was created in order to “to limit what it is that a woman/child complainant must be forced to reveal at trial as the price of her access to the criminal justice system” (When Privacy is not Enough:  Sexual Assault Complainants, Sexual History Evidence, and the Disclosure of Personal Records, (2006) 43 Alta. L. Rev. 743, at p. 745.).  That approach was upheld by this Court in R. v. Mills, [1999] 3 S.C.R. 668, and its constitutionality is not challenged in this appeal. [Emphasis added]; [para 14].

After discussing the procedural aspects of 278.1 the Court noted that the “mere fact that a police occurrence report concerns a complainant or witness is not enough to make the report relevant to an otherwise unrelated prosecution.  The Mills provisions echo this Court’s frequent warnings against relying on myths and stereotypes about sexual assault complainants in assessing the relevance of evidence in the context of sexual assault trials [para 17].

Turning to discuss the impact of McNeil, the Court noted that

The Mills regime governs the disclosure of “records” in sexual offence trials, but does not displace the Crown’s duty to make reasonable inquiries and obtain potentially relevant material (or the police duty to pass on material to the Crown) under McNeil.  As an officer of the court and Minister of Justice, the Crown is duty-bound to seek justice, not convictions, and to avoid wrongful convictions, in the prosecutions of all offences, including sexual offences.  The Mills regime simply replaces the obligation to produce relevant records directly with an obligation to give notice of their existence. [Para 18].

With respect to whether unrelated occurrence reports are “records” in 278.1, the Court considered two issues: first, whether the records carry a reasonable expectation of privacy; and second, whether they “fall into the exemption for investigatory and prosecutorial documents”.

First, the Court concluded unrelated occurrence reports do carry with them a reasonable expectation of privacy. Such privacy interests must be assessed in relation to the “totality of the circumstances” and are not limited to “trust-like, confidential, or therapeutic relationships” [para 27]. Privacy interests are not “an all or nothing concept”. The Court went on to discuss the “information” in these reports and the “price of disclosure” and concluded:

People provide information to police in order to protect themselves and others.  They are entitled to do so with confidence that the police will only disclose it for good reason.  The fact that the information is in the hands of the police should not nullify their interest in keeping that information private from other individuals.
Fundamentally, the privacy analysis turns on a normative question of whether we, as a society, should expect that police occurrence reports will be kept private.  Given the sensitive nature of the information frequently contained in such reports, and the impact that their disclosure can have on the privacy interests of complainants and witnesses, it seems to me that there will generally be a reasonable expectation of privacy in police occurrence reports. [Paras 43-44].

Second, the Court rejected the notion that unrelated occurrence reports are exempt as prosecutorial and investigative documents in 278.1. Interpreting the section leads to the conclusion that the exempting clause only applies to the records made in the course of the investigation in question. In making this point the Court offered the following practical comments:

If Parliament wanted to exempt unrelated police and prosecution documents from the Mills regime, it is hard to see why it would have excluded only those documents made by some police departments and not others.
This would mean that an accused whose case was investigated by a large police force would be more likely to get easy access to occurrence reports than if the case was investigated by a small force.  For example, where the RCMP is involved in an investigation, the Court of Appeal’s interpretation of the exemption would waive the Mills regime for RCMP occurrence reports from across the country [paras 57-58].

I agree – I similarly noted this anomaly would follow from the ONCA ruling in my 2013 blog:

There is nothing in the language of this exclusionary portion of 278.1 that suggests it should apply as broadly as suggested by MacFarland JA. Indeed, if it did, it would create possible odd and unfair results. Consider whether the records held by other police agencies, not those “responsible” for this investigation, but nonetheless in possession of such information would be subject to 278.1.

In concluding on the point that unrelated occurrence reports are “records” the Court rejected the position of the Criminal Lawyer’s Association of Ontario and the respondent that this interpretation of records would impact on trial fairness – in part, this argument pointed out that the Crown and defence would be on unequal footing in access to such material:

The principles of fundamental justice and trial fairness do not guarantee defence counsel the right to precisely the same privileges and procedures as the Crown and the police (Mills, at para. 111).  Nor is the right to a full answer and defence a right to pursue every conceivable tactic to be used in defending oneself against criminal prosecution.  The right to a full answer and defence is not without limit. [Para 64].

In my 2013 blog on the ONCA ruling I concluded with these thoughts:

Section 278.1 should apply to police occurrence reports. The section is broad enough to capture those reports and the exclusionary clause does not apply.
Ironically, MacFarland JA noted the following – from the preamble of the Bill to introduce the 278.1 provisions – as the “intent” of Parliament.
In the preamble, Parliament recognizes that the compelled production of personal information in accordance with ordinary disclosure principles may deter victims of sexual offences from reporting and seeking “necessary treatment, counselling, or advice”. It also acknowledges that such unconstrained disclosure may detrimentally affect the work of those who provide services and assistance to complainants of sexual offences [emphasis added]; [para 28]. 
If this truly was Parliament’s intent – and it seems quite reasonable to so conclude – it is unlikely to be furthered by this ruling. Indeed, this ruling is likely to have a chilling effect of reporting. If every complainant knew that everything they tell the police and hand over to the police will thereinafter be provided to every accused person on every cause in which she is a witness or victim, it is not hard to imagine some hesitation or concern may arise.
The 278.1 regime is not overly onerous. It does, however, provide a valuable and important level of protection. That protection should apply to police occurrence reports.

With its ruling today the Court has addressed these concerns. The privacy rights of victims and witnesses sought to be protected by 278.1 has been restored.


New & Notable: Privacy of Anonymity Protected

In a blog posting on February 11, 2013 Brian Holowka discussed the case of Matthew Spencer – a case decided by the Saskatchewan Court of Appeal: 2011 SKCA 144 – which dealt with the issue of whether persons have a reasonable expectation of privacy in their personal identifiers held by their ISP company.

Today the Supreme Court released its ruling on appeal from that decision: 2014 SCC 43. In short, it held that Spencer did have a reasonable expectation of privacy in his name and other personal identifiers as held by his ISP, Shaw Communications, that related to the IP address linked to his computer.

The facts – as set out in the previous post – may be succinctly summarized as follows:

Matthew Spencer used a popular file-sharing program called “LimeWire” to obtain a large number of files containing child pornography. He kept these files in a shared folder on his computer. Others similar users of the file-sharing program could view and download these files.

An officer with the Saskatoon Police Service used the “LimeWire” program and discovered the child pornography files in this shared folder. The IP address associated with the computer hosting the shared folder was publicly available and easily ascertainable by the police. The police wrote to Shaw Communications, the ISP, requesting the customer information associated with the IP address at the date and time relevant to the discovery. This kind of information is often referred to as customer name and address or CNA. The request was made pursuant to the Personal Information Protection and Electronic Documents Act (PIPEDA).

Shaw complied with the PIPEDA request and armed with this information, the police obtained a search warrant to search the home. The computer was located, seized and searched. Child pornography was located on the hard drive of the computer.

On appeal the Court considered whether Spencer had a reasonable expectation of privacy. That consideration began by determining his subjective expectation which was driven by two considerations: (i) the subject matter of the search; and (ii) the nature of the privacy interest potentially compromised.

With respect to the subject matter, the court noted that in some cases this is easily discerned, in others it is more nuanced and complex. In this case, the determination of the subject matter fell into the latter category and in such cases the court should take “a broad and functional approach to the question, examining the connection between the police investigative technique and the privacy interest at stake” [para 26]. In doing so courts should looked “not only the nature of the precise information sought, but also at the nature of the information that it reveals” [emphasis added]; [para 26].

Put another way, the Court held that courts should not look “narrowly at physical acts involved but should consider the nature of the privacy interest impact: para 31.

In the present case the Court concluded on this point with the following:

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.
Here, the subject matter of the search is the identity of a subscriber whose Internet connection is linked to particular, monitored Internet activity [emphasis added]; [paras 32-33].

With respect to the nature of the privacy interest, the Court first identified the privacy interest at stake as being “informational” and noted:

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 [para 38].

After setting out the framework for the analysis of each of these privacy interests, the Court identified an intrusion into the “privacy as anonymity” and concluded:

In the circumstances of this case, the police request to link a given IP address to subscriber information was in effect a request to link a specific person (or a limited number of persons in the case of shared Internet services) 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 by the Court in other circumstances as engaging significant privacy interests: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 3; Cole, at para. 47; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 40-45.
I conclude therefore that the police request to Shaw for subscriber information corresponding to specifically observed, anonymous Internet activity engages a high level of informational privacy [emphasis added]; [para 50-51].

In undertaking this analysis the Court drew the conclusion that Spencer had a subjective expectation of privacy.

Turning to determine whether such an expectation was reasonable, the Court discussed the implications of PIPEDA and the reliance thereon for the disclosure in question. In particular, Spencer argued that the contractual and statutory terms of his agreement with Shaw (the ISP) did not undermine his expectation of privacy. While recognizing that PIPEDA sets outs as a guiding principle that an organization may disclose personal information as they feel appropriate, this principle does not apply where the police seek such information – as opposed to the ISP discovering it and providing it on their own initiative. Where the police request the information they must have a “lawful authority”.

...s. 7(3)(c.1)(ii) of PIPEDA…permits disclosure only if a request is made by a government institution with “lawful authority” to request the disclosure. It is reasonable to expect that an organization bound by PIPEDA will respect its statutory obligations with respect to personal information [para 63].

The Court concluded that Spencer’s expectation of privacy was reasonable:

In my view, in the totality of the circumstances of this case, there is 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 amounts to a search [para 66].