By Cara Zwibel
on June 13, 2014
The Supreme Court of Canada has rendered its decision in R. v. Spencer, a case that considered the privacy interests that an individual has in Internet activities and affirmed that anonymity is a key component of the right to privacy. The Court also clarified a point of long-standing disagreement between privacy advocates and law enforcement authorities, and concluded – unanimously – that police require judicial authorization to obtain subscriber information from internet service providers. CCLA believes that the decision sends a clear signal that privacy rights exist in the digital world.
The decision arose out of the case of Mr. Spencer, who was charged with possessing and distributing child pornography. The police had information about an internet protocol (IP) address that had shared what was believed to be child pornography. The police sought information about the subscriber associated with the IP address Mr. Spencer’s internet service provider. The law enforcement request for information was purportedly made pursuant to a provision of the Personal Information Protection and Electronic Documents Act (PIPEDA), which is privacy legislation directed at protection of privacy in the private sector (i.e. information held by private entities). The information was handed over without a production order (an order that is similar to a search warrant) and the police then sought and obtained a search warrant to enter Mr. Spencer’s home and search his computer.
The Supreme Court had to address the question of whether the request for information from the internet service provider was a “search” within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms. The Court noted that while the basic information being sought (name, address and telephone number) appears mundane, the information that it would reveal about an individual – in particular, their activities online, was substantial. The Court also laid out that the nature of the privacy interest at issue in the case had three different aspects: privacy as secrecy, privacy as control and privacy as anonymity. The Court’s recognition of anonymity as a concept protected by section 8 echoed the arguments made in CCLA’s factum and may have wide-reaching implications for future cases.
The Court also had to consider whether Mr. Spencer had a reasonable expectation of privacy in the information that was obtained by the police (and the information that it revealed). The Court considered the impact of PIPEDA as well as the terms of service governing the relationship between the internet service provider and its customers. It concluded that these factors supported the existence of a reasonable expectation of privacy. In dealing with the proper interpretation of PIPEDA, the Court held that the legislation does not allow the police to simply obtain information which is subject to a reasonable expectation of privacy, merely by asking. In other words, PIPEDA does not create any search or seizure powers.
The Court concluded that Mr. Spencer’s Charter rights were violated but held that the evidence, on the facts of this case, should nevertheless be admitted. It considered that the police did not act with wilful or flagrant disregard of the Charter and that the belief that they were acting lawfully was a reasonable one. Given the seriousness of the offences, the Court held that it would bring the administration of justice into disrepute to exclude the evidence.
The implications of the decision are substantial, and may play a significant role in CCLA’s ongoing Charter challenge to PIPEDA. In particular, the Court’s decision confirms CCLA’s view that PIPEDA is legislation to protect privacy, and cannot be used to undermine it. CCLA was represented by Anil Kapoor and Lindsay Daviau of Kapoor Barristers.
Read the Court’s decision in R. v. Spencer here.
Read the CCLA’s factum in the case here.
By Cara Zwibel
on May 30, 2014
On May 28, 2014, Ontario’s Divisional Court released its decision in Taylor-Baptiste v. OPSEU, confirming the right of the Ontario Human Rights Tribunal to consider Charter values, including freedom of expression, when assessing whether there has been discrimination under the Ontario Human Rights Code. The CCLA had intervened in the case to promote a robust understanding of when and how tribunals can consider the Charter in their decision-making. The judgment also has implications for employee privacy and freedom of expression in the Internet age.
The case arose in the context of a fractious labour dispute between management and correctional officers at a Toronto-area jail. The union representing workers at the jail created a blog to communicate with members. After an incident in the workplace, the union local president published a post criticizing the performance of a female manager. Unfortunately, the blog post used demeaning and sexist language to describe her. The manager subsequently applied to the Human Rights Tribunal, arguing that the blog post constituted discrimination with respect to employment – which is prohibited under section 5 of the Ontario Human Rights Code. However, the Tribunal ultimately concluded that the post did not fall under the Code. In reaching this decision, the Tribunal relied on a number of different factors: there was no evidence that the union president worked on the blog while at work; his posts focused on issues of union-management concern; the manager occupied a position of relative power in the workplace. Among other things, the Tribunal noted that Charter rights were engaged by this scenario – particularly freedom of expression and freedom of association. Ultimately, the Tribunal concluded that, in this particular case, the blog post was not covered by the relevant provision of the Human Rights Code.
The manager asked the Divisional Court to review this decision arguing, in part that it was inappropriate for the Tribunal to invoke the Charter in this context. CCLA’s intervention in the case focused on persuading the Court that administrative tribunals are not only entitled, but required, to consider Charter rights, among other factors, when making rendering judgments. In this case, the Charter was relevant to deciding whether the Human Rights Code applies to a particular constellation of facts. This approach is necessary to ensure that the Charter is woven into the fabric of everyday administrative decision-making.
The Taylor-Baptiste decision also has ramifications for employee privacy and freedom of speech in the Internet age. Employees often turn to blogging, social media and other online platforms to express themselves after work hours – sometimes on issues that are connected to their jobs. The Tribunal held that some of these communications may be covered by the Human Rights Code, but not all. In each case, the Court or Tribunal will consider the entire context to determine whether there was a sufficient connection between the communications in question (e.g. a blog post) and the workplace. CCLA applauds the Divisional Court’s decision which led to a a sensible and nuanced result.
Read the CCLA’s factum before the Divisional Court.
By Abby Deshman
on May 21, 2014
Recently the Canadian Civil Liberties Association wrote to Northern Secondary School outlining the organization’s concerns with the school’s plans to make every student entering the prom undergo a Breathalyzer test. On Tuesday, May 20th, CCLA-cooperating pro bono lawyers filed an application in the Ontario Superior Court of Justice requesting a declaration that the proposed policy violates students’ constitutional rights. The applicants are two students currently enrolled at the school.
Read a copy of the Notice of Application.
By Cara Zwibel
on May 21, 2014
Click here to read the Toronto Star‘s front page coverage of CCLA’s challenge.
CCLA is bringing an Application in Ontario’s Superior Court of Justice to challenge parts of Canada’s federal private-sector privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA). This is the law that regulates how personal information is collected, used and disclosed by private commercial organizations. It is part of the scheme that has allowed government institutions to access personal information from telecommunications companies and internet service providers on a massive scale, and CCLA believes the law is overly broad and violates fundamental rights.
Why is CCLA bringing a lawsuit to challenge PIPEDA?
CCLA believes that our current privacy legislation, PIPEDA, has not kept pace with modern technology, because it enables too much information sharing by the private sector to government, and that it may have significant and adverse impacts on people’s lives. Information gathered by the government may be used for the purposes of investigating and laying criminal charges and may also be shared with foreign governments. Once this information is shared with governments outside of Canada, we effectively lose control over how and why it is used. Furthermore, the current provisions may allow government to do an end run around warrant requirements.
CCLA’s lawsuit aims to strike down some provisions of the privacy legislation so that the law can be changed in a manner that is more protective of individual rights and freedoms.
When can my telecommunications or internet service provider hand my personal information over to government?
The general rule is that your information cannot be disclosed to others without you knowing about it and giving your consent. However, there are some big exceptions to this rule. Provisions of PIPEDA allow information to be disclosed to a government institution (including law enforcement agencies) for purposes of national security and the enforcement of any law of Canada, any province or a foreign jurisdiction. Law enforcement agencies are relying heavily on private corporations like telecom companies and internet service providers to gather information about Canadians and are frequently doing so without judicial oversight and with little transparency or accountability. In light of recent revelations that government institutions requested personal information from telecommunications providers over 1 million times in a one year period, CCLA is standing up for the privacy rights of Canadians and challenging these laws.
Does the government need a warrant to get this information?
A warrant or court order is usually necessary before law enforcement agencies can obtain access to personal information in the hands of an organization. However, law enforcement and telecommunications providers have taken the position that basic subscriber information (customer name and address) is not private and that a warrant is therefore unnecessary.
While the information usually found in a phonebook is likely not considered confidential or sensitive, associating a name and address with an individual Internet protocol (IP) address, may reveal many intimate details about an individual’s online activities and about them personally. It remains unclear precisely what information is being handed over by telecommunications and internet service providers to government institutions, absent a warrant, but CCLA is concerned about the massive scale of the information exchange and has decided to take action.
By Cara Zwibel
on May 14, 2014
The Supreme Court of Canada recently released its decision in John Doe v. Ontario (Minister of Finance), a case that interpreted an exception to Ontario’s provincial access to information regime for “advice or recommendations” of a public servant. The case arose when John Doe, an anonymous requester, asked for information about amendments to Ontario’s Corporate Tax Act and, in particular, the decision to have the amendments apply retroactively. A number of the records requested were refused on the basis that they would reveal “advice or recommendations of a public servant”. Under the Freedom of Information and Protection of Privacy Act, the head of a government institution may refuse to disclose records that fall into this category. Ontario’s Information and Privacy Commissioner ordered that the records should be disclosed and the matter was appealed through the courts.
CCLA intervened in the case to argue that the “advice or recommendations” exception should be interpreted narrowly and records should not be shielded from disclosure unless they are framed as direct advice or recommendations and indicate a course of action. Shielding a broader range of records from disclosure hinders the rights of Canadians to have informed public debate and discussion about government policy choices. CCLA also argued that the interpretation of the legislation should respect the values enshrined in the Canadian Charter of Rights and Freedoms and the global trend towards greater openness and transparency in government.
The Supreme Court of Canada decision interprets the exception much more broadly and argues that this interpretation is necessary to allow public servants to provide full, free and frank advice. CCLA believes that a narrower interpretation could protect this laudable goal while still providing Canadians with greater access to government decision-making processes.
Read the CCLA’s factum here.
Read the Supreme Court’s decision here.
By Noa Mendelsohn Aviv
on May 1, 2014
The British Columbia Court of Appeal (BCCA) ruled that s. 117 – the “human smuggling” provision of the Immigration and Refugee Protection Act – was constitutional, in contrast to an earlier court’s finding in this case. The lower court in R v Appulonappa had found that the provision was overbroad and unconstitutional, as it could criminalize the conduct not only of human smugglers who sought to take advantage of individuals’ desperate situations for profit, or in connection with organized crime; it could also target individuals who are helping family or providing humanitarian assistance.
CCLA had intervened in the case to argue that the provision is both arbitrary and overbroad: It could criminalize a refugee mother who arrives in Canada with her baby, and a humanitarian aid worker. In addition, it could create the absurd situation in which a refugee protected under international law, could be rendered inadmissible to Canada for having engaged in the protected act of entering Canada, if he or she arrived with other refugees who were helping each other. CCLA was represented by Andrew I. Nathanson and Gavin Cameron (Fasken Martineau).
To read CCLA’s factum in this case click here.
To read the BC Court of Appeal decision click here.
By Abby Deshman
on April 11, 2014
The Supreme Court released its decision in R. v. Summers this morning, ruling that a broad range of circumstances may justify giving an individual enhanced credit for pre-trial detention at the time of sentencing. The Canadian Civil Liberties Association intervened in the case, arguing that individuals must not face a harsher sentence simply because they spent time in pre-trial detention or insisted on their right to a fair trial. In order to ensure that sentencing is fair, a wide range of circumstances – including the effective delay of eligibility for parole and early release that will automatically result from pre-trial detention – must be taken into account when determining how credit for pre-trial custody is calculated. The CCLA welcomes the court’s ruling, which upholds the fundamental principles of fairness in sentencing. As stated by the Supreme Court, “[a] system that results in consistently longer, harsher sentences for vulnerable members of society, not based on the wrongfulness of their conduct but because of their isolation and inability to pay, can hardly be said to be assigning sentences in line with the principles of parity and proportionality.”
The CCLA’s factum is available at http://www.scc-csc.gc.ca/factums-memoires/35339/FM060_Intervener_Canadian-Civil-Liberties-Association.pdf.
The Supreme Court’s decision can be accessed at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13586/index.do.
By Abby Deshman
on March 28, 2014
On March 27, 2014 the Supreme Court of Canada released its decision in Mission Institution v. Khela, a case that examined the scope of court review on a habeas corpus application and the disclosure obligations correctional authorities owe when an individual is involuntarily transferred to a higher security correctional facility. Habeas corpus is a centuries-old legal writ that is an essential safeguard against illegal and unconstitutional detention. As stated by the Supreme Court, it is “the strongest tool a prisoner has to ensure that the deprivation of his or her liberty is not unlawful.” On a habeas corpus application, once an individual has shown the court that a deprivation of liberty has occurred and there is a “legitimate ground” to question its legality, the government bears the burden of proving that the imprisonment is lawful.
The Canadian Civil Liberties Association intervened in the case to argue that habeas corpus must continue to be a broad, flexible and responsive remedy that gives the fullest access and opportunity to prisoners to challenge the lawfulness of their detention. Where a person is imprisoned through an unfair process, that imprisonment is unlawful – and individuals must be given enough information by authorities in order to know why their liberty is being restricted, and meaningfully answer any accusations against them.
The Supreme Court’s decision strongly upholds a robust habeas corpus review, and affirms that provincial courts can assess both the procedural fairness and the reasonableness of a decision in order to decide whether an individual’s detention is lawful. The Court also ruled that correctional authorities have significant disclosure obligations in an involuntary transfer context, and that information may only withheld “when the Commissioner has “reasonable grounds to believe” that should the information be released, it might threaten the security of the prison, the safety of any person or the conduct of an investigation.”
To read the CCLA’s submissions click here.
To read the Supreme Court’s decision click here.
By Peter Goffin
on March 20, 2014
On March 18, 2014, CCLA appeared in the Supreme Court of Canada as an intervener in the case of Kazemi v. Iran et al.; Iran et al. v. Hashemi (Supreme Court of Canada File No. 35034). The case concerns the right to pursue a civil remedy against foreign governments for alleged death by torture – a violation of peremptory norms of international law and jus cogens. CCLA argued that torture, a violation of jus cogens, is an exception to the State Immunity Act, which statute would otherwise prevent a civil suit against a foreign State. CCLA had also intervened in the lower court, the Quebec court of Appeal.
CCLA would like to thank Christopher A. Wayland and Simon Chamberland of McCarthy Tétrault LLP for their excellent work representing us in this case.
To read CCLA’s factum in this case, click here.
By Cara Zwibel
on March 17, 2014
CCLA has been granted leave to intervene in Loyola High School, et al. v. Attorney General of Quebec. This case, scheduled to be heard by the Court on March 24, 2014, is the second time that the Court will consider an issue related to the province of Quebec’s Ethics and Religious Culture (ERC) curriculum which was put in place several years ago when the province went through the process of moving away from a confessional system of education. Loyola, a private Catholic high school in Montreal, sought an exemption from the Minister of Education on the basis that it taught a course that was equivalent to the ERC course but was in keeping with its mission as a Catholic school. The Minister denied the exemption arguing, in part, that as a religious institution (and not an individual), Loyola could not make a freedom of religion claim under the Canadian Charter of Rights and Freedoms or the Quebec Charter of Human Rights and Freedoms.
While CCLA recognizes that freedom of religion is often thought of as an individual right, it also has significant associational and expressive aspects. Therefore, in certain cases, where a non-profit institution is primarily a vehicle through which individual members exercise their own freedom of religion, association and expression, the institution itself can make a claim under the Charter freedom.
Read CCLA’s factum in the case here.