October 20, 2010: Supreme Court of Canada Justice Thomas Cromwell plays the piano in the dining room of the Supreme Court in Ottawa. Dave Chan for Globe and Mail.DAVE CHAN/The Globe and Mail
The Supreme Court was right on Friday to reassert the search-warrant principle in the electronic age. Customers of an Internet service provider, said the court, have a reasonable expectation that their subscriber information for an IP address will be private. Companies should not blithely and routinely hand it over to the police, without a judicial authorization.
In this case, Shaw Communications Inc. voluntarily gave a police officer such information about a suspected – and as it turned out, actual – collector of child pornography, Matthew Spencer. Constable Darren Parisien knew there was some doubt about whether a warrant was needed, but he acted in good faith. And once he identified the suspect's house, he quite properly obtained a search warrant to enter the house.
The federal government's Bill C-13, the misnamed Protecting Canadians from Online Crime Act, if it is passed, would confirm the warrant requirement. Under C-13, a police officer applying for judicial authorization of access to the subscriber information for the IP address would presumably face the lesser threshold of "reasonable suspicion," rather than the more demanding standard of reasonable and probable grounds for a search warrant. Either way, they'd have to show evidence and seek the approval of a judge.
Over the past few months, Canadians have been treated to a growing barrage of stories about the ways in which agencies of government are able to get extralegal access to information about Canadians' phone and e-mail accounts. The court reminded us that this is at odds with our most fundamental constitutional principles. For government to access your private information, a judge's authorization should normally be required.