Romaniuk's
Search Warrants Considered

Privacy Information Requests

This is an unsettled area of law

Privacy Act
or
PIPEDA
(Personal Information Protection and Electronic Documents Act)

• In this case officers used the Privacy Act to obtain records. "... we are not satisfied that the search or seizure of the documents used to prove the forgery was illegal or unreasonable. We are satisfied that the judge properly directed himself in law as to the validity of the disclosure of documents under the PA and the reasonable absence of the appellant’s privacy with regard to the false medical documents that he is alleged to have forged. In its legitimate quest to protect an individual’s privacy, the law does not go so far as to allow an individual to shelter the evidence of his or her crimes in an inviolable sanctuary, to the detriment of collective rights {para 14}
  [Savaria, M.; CMACC," app dism'd; SCC].
• In an obiter comment mentioning most of the cases below an appeal court noted: "Whether the PIPEDA precludes the police from requesting and obtaining customer-related information from businesses is far from settled {para 74};
  [Ballendine, K.D.; BCCA].
• "I agree with the Applicant that disclosure of the name and municipal address, to someone who possesses the IP address, may provide the holder of the IP address with “details of the lifestyle and personal choices of the individual {para 54}." Hence the information held by internet service providers is Charter protected
  [Vasic, C.; OSCJ].
  Also review [Beitel, A.; 2011 CarswellOnt 10049, 2011 ONSC 5394; {para 87}; OSCJ, Cuttell, D.; {para 21}; OCJ, S.W.F.; OCJ, Kwok, A.; [2008] O.J. No. 2414; OCJ, Re S.C.; {para 11}; OCJ].
  Contra: "Account information, per se, reveals very little about the personal lifestyle or private decisions of the occupant’s of the defendant’s residence other than they have chosen to have some form of internet connection installed in that residence. Moreover, the prevalence of wireless and handheld technology makes a particular address an even less significant fact so far as internet use is concerned, since that use is no longer tied to a land line tied to a particular address {para 24}
  [Wilson, M; [2009] O.J. No. 1067; OSCJ]."
  Also review: [Brousseau, P.; {paras 32-37}; OSCJ, McGarvie, S.J.; 2009 CarswellOnt 500; {para 37}; OCJ, McNeice, K.G.; {para 44} BCSC, Spencer, M.D.; {para 17}; SKQB (August 31, 2009), aff'd; SKCA, Stucky, D. (2006); {paras 22-23}; OSCJ and Verge, C.; 2009 CarswellOnt 501; {para 44}; OCJ].
• "In my view, the applicant had no reasonable expectation of privacy in the information provided by Bell considering the nature of that information. One’s name and address or the name and address of your spouse are not “biographical information” one expects would be kept private from the state. It is information available to anyone in a public directory and it does not reveal, to use the words of Sopinka J in [Plant, R.S. SCC], “intimate details of the lifestyle and personal choices or decisions of the applicant"
  [Wilson, M.; [2009] O.J. No. 1067; {paras 42 and 43} OSCJ].
• Solicitor-client privilege can be asserted when a privacy information request is made. This applies to both federal {Blood Tribe, paras 31 and 33} and provincial legislation {Newfoundland, para 90}
  [Blood Tribe 2008; SCC and Newfoundland and Labrador (A.G.) v. Newfoundland and Labrador (I.P.C.); SCNLTD].
  Also review solicitor-client privilege - case law.
• The results of requests for information made under privacy statutes, here under the provisions of PIPEDA were admissible for use in an ITO, when the third party information provider has an agreement with its customer indicating that it will comply with such a request
  [Lo, D.; 2011 CarswellOnt 12268, 2011 ONSC 6527; {para 49}; OSCJ, Vasic, C.; {para 55}; OSCJ and Ward, D.; {para 66}; OCJ].
  However, when there is no evidence that such an agreement exists before the courts, the evidence is inadmissible, and should not be included in an ITO [Cuttell, D.; {para 21}; OCJ and Kwok, A.; [2008] O.J. No. 2414 (unreported); OCJ].
  Contra:, but with acknowledgement that as of 2009 Saskatchewan's s. 29 Freedom of Information and Protection of Privacy Act, S.S. 1990-91, c. F-22.01; has not been designated by its legislature to be compatable with PIPEDA, the Court disagreed stating that the legislation "... and its regulations, as they exist, have sufficient clarity and precision for the accused and investigators to be properly apprised of their legal status {para. 15}
  [Trapp, B.A.; SKPC, aff'd; SKCA]."
• Airline passenger lists are not subject to PIPEDA in a criminal law context {paras 14-15}. The entity breaching PIPEDA may be civilly liable, but there is no breach of the Charter in this particular context
  [Chehil, M.S.; NSCA, UNDER APPEAL; SCC
• In this case the police were provided the original copies of an automobile rental form. The rental company turned it over on the verbal request of a police officer. The rental company had a privacy waiver clause in the agreement allowing it to do so. The Court commented: "However, in terms of the issues on this voir dire, the statement in the Privacy Policy that a renter’s information may be disclosed to law enforcement agencies where required or authorized by law accords with PIPEDA {para 44}." Hence the evidence was admissable
  [Siemens, L.; SKPC].
• Corporations that supply authorities with information pursuant to requests made under the Federal Personal Information Protection and Electronic Documents Act {PIPEDA} could put themselves into the position of acting as agents for the state. "If RBC had been acting as an agent of the police, it would not be entitled to rely upon PIPEDA as a basis for collecting personal information that the police could otherwise only obtain by means of a search warrant or production order {para 51}. Here, however, the bank's employees conducted an independant investigation into a fraud, using PIPEDA requests, and presented their findings to police
  [Royal Bank v. Welton; OSCJ", affirmed under appeal as: [Royal Bank of Canada v. Ren, C.; OCA, app dism'd; SCC].
  Review the Agents of the State section.
• Here police asked the front desk clerk at a hotel who the occupants of a certain room were. The defence argued that the information should have been properly obtained via a privacy of information request {para 25}, and then used the resulting reply in an ITO for a General Search Warrant. That argument was rejected by the court on the basis that the police could have obtained the same information by way of observation, hence there was not a breach of a Charter right. "This is not the type of personal information where there was a subjective presumption of privacy by the occupants of Room 229 {para 40}
  [Adusei, S.P.; NLTD]." Also review [Tan, K.B.; {paras 29-31}; BCSC].
  Contra, the renting of a motel room and filling out of a registration form gave rise to a very high expectation of privacy. A warrant is required for the search of such records
  [Duong, H.; [2006] O.J. No 4524; OSCJ]. Also review [Della Penna, R.N.; 2006 BCPC 611; {para 136}; BCPC].
• "I find that Detective Krawczyk did not breach any of the accused’s rights to be free from unreasonable search and seizure when he used Quail’s GigaTribe account to view and download the files being offered for sharing by Paper123boy. By clicking on these thumbnails that were shown on Quail’s GigaTribe account, he was merely accepting the offer to download that had been extended by Paper123boy to an anonymous contact. He did not search the hard drive to which those files resided {para 114}
  [Caza, J.D. (Ruling Re: Voir Dire #1); BCSC]."
• Information provided to the government, here via an application to obtain a licence to run a hog farm, is not seized by the government, even though the applicant was compelled to give that information to the government in order to obtain the licence. The information could be obtained by a member of the public pursuant to a privacy information request in any event
  [Metz Farms; NBQB].
• "The police were in lawful possession of the accused’s cell phone number. With the phone number and the accused’s name, the police could ascertain over the Internet, as any member of the public could, whether the accused was a subscriber to a specific wireless service. Armed with that information, the police by search warrant would be in a position to obtain the identical cell phone records from Rogers as they did based upon the information chip retrieved from the cell phone {para 54}
  [Cole , A.; OSCJ]."
• Information that raises suspicions of criminal behaviour found in a personnel file, by persons with authority to have access to those files, can be turned over to authorities for investigation, without the authorities making a privacy information request
  [Cruz, D.J. ; {para 22}; CM].
• For an obiter instance, where the court considered a breach of the Privacy Act see
  [McCullough, G.B.; {paras 11(b)(2) and 24-25} SKQB].
• Review Prior Written Agreement to Search.
"The police were in lawful possession of the accused’s cell phone number. With the phone number and the accused’s name, the police could ascertain over the Internet, as any member of the public could, whether the accused was a subscriber to a specific wireless service. Armed with that information, the police by search warrant would be in a position to obtain the identical cell phone records from Rogers as they did based upon the information chip retrieved from the cell phone.

END OF SEARCHES AUTHORIZED
BY OTHER STATUTES SECTION

Page PR 32