Ontario Court Justice William Gorewich ruled that Toronto police had violated the privacy rights of a Markham man, Arthur Kwok, when it used a warrantless PIPEDA request to identify him as the man who traded child pornography in a private chat room.
Some of the men caught in the Operation Penalty dragnet later invoked the Kwok decision in an attempt to get the courts to throw out the evidence against them.
Mr. Ward was one of the first to try, but in June, 2008, he failed and was found guilty. The Crown successfully argued that, to obtain an Internet connection, Mr. Ward had signed a term of service where Bell warned it could share personal information with police as required by law.
Other challenges failed on the same arguments.
The Supreme Court is now deciding the case of Mr. Spencer, which has similar issues.
When the Supreme Court heard the case last December, a recurring concern was the way the current system had developed, from arrangements between police and private sector to relying on the fine print of service contracts.
“The problem, I say, is that this deal between ISPs [Internet service providers] and the police is trying to serve the function of law, but it’s not law,” said Mr. Ward’s former lawyer, Jonathan Dawe, who was representing the Criminal Lawyers’ Association Of Ontario.
Two of the justices, Louis LeBel and Andromache Karakatsanis, wondered about the dynamic nature of IP addresses but the lawyers at the hearing were unable to provide technical details.
Justice Rosalie Abella, who asked the more probing questions about the police’s behaviour, wondered why detectives took a chance with PIPEDA requests, knowing it could be a grey legal area.
“Where is the sin in choosing the easier road if it’s legal?” Saskatchewan senior Crown prosecutor Anthony Gerein replied.
On Friday, the top court will rule if indeed the easier road is legal.