Chapter 2: Canada’s Legal Framework for Lawful Access
Special Report on the Lawful Access to Communications by Security and Intelligence Organizations
Notable Jurisprudence
45. Jurisprudence plays a significant role in informing the boundaries of Canada’s legal framework. Most notably, several key decisions of the Supreme Court have shaped the understanding of what constitutes a reasonable expectation of privacy. The jurisprudence is such that law enforcement and intelligence agencies are generally required to obtain prior judicial authorization to collect a broad array of information related to communications in the context of investigative and information-gathering activities.
46. Reasonable Expectation of Privacy: Over the last decade, the Supreme Court has significantly expanded the scope of what gives rise to a reasonable expectation of privacy in the digital age. In R v Spencer (2014), the Supreme Court unanimously determined that the link between the identity of individual internet users and their use of the internet gives rise to privacy interests and that internet users have a reasonable expectation of privacy. Specifically, the Court found that basic subscriber information (BSI) based on a known internet protocol (IP) address provided insights into the personal life of internet users that they would reasonably expect to be private. Footnote 81 As such, the Court determined that a request for BSI amounts to a search and thus requires prior judicial authorization.
47. More recently, in R v Bykovets (2024), a 5-4 split decision of the Supreme Court determined that there is also a reasonable expectation of privacy associated with a person’s Internet Protocol (IP) address, and a request to a private company, such as a CSP, to obtain this identifier amounts to a search. Accordingly, law enforcement requires prior judicial authorization to obtain this information. Footnote 82
48. Disclosure in Criminal Matters: The Supreme Court has long since established the obligation of the Crown to disclose all relevant and material information, except that which is privileged, to the defence so that accused persons may make full answer and defence to any charges brought against them. Footnote 83 However, this legal duty to disclose can become a challenge in the context of national security criminal investigations, a problem generally known as the intelligence and evidence dilemma. Footnote 84 This dilemma is particularly acute in circumstances in which a shared sensitive tool or technique has been used to gather evidence, such as text messages among suspects who allegedly planned an attack.