R. v. Brousseau, 2010 ONSC 6753

CITATION : R. v. Brousseau, 2010 ONSC 6753 COURT FILE NO.: 0392/08 DATE: 20101210 SUPERIOR COURT OF JUSTICE - ONTARIO RE: HER MAJESTY THE QUEEN, Respondent - And - PATRICK BROUSSEAU, Applicant BEFORE: Justice Croll COUNSEL: A. Spiegel, for the Crown/Respondent R. Fedorowicz, for the Defence/Applicant HEARD: November 9, 10, 12, 2010 R U L I N G on S E C T I O N 8 M O T I O N Introduction [ 1 ] The Applicant Mr. Brousseau is charged with the offences of possession of child pornography, making child pornography available, and making child pornography. The date of these alleged offences is May 28, 2007.

He is also charged with possession of child pornography on June 13, 2007. [ 2 ] The Applicant has brought an application alleging that his

section 8 Charter right has been violated, and seeks an order that the evidence seized following this violation be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms , ( Charter ). [ 3 ] In particular, the Applicant seeks to challenge the admissibility of evidence that was seized as a result of a search warrant executed at his home on June 13, 2007. The Applicant alleges that, because the police obtained subscriber information from Rogers Incorporated (Rogers) without a warrant or subpoena that identified him as a user of a specific internet protocol (IP) address, his right pursuant to

section 8 of the Charter was violated. He further submits that, since the information the police obtained in violation of his

section 8 right was the foundation for the subsequently issued search warrant, the evidence obtained pursuant to the search warrant oughtto be excluded from this trial pursuant to section 24(2) of the Charter. The Background Facts [4] On May 28, 2007, the police identified a computer using the IP address 74.99.175.130 with an active connection to the GnutellaNetwork. The police officer undertaking this computer activity was D/C Purchas. D/C Purchas was able to determine that the identifiedcomputer was actively involved in the possession and downloading of child pornography.

Specifically, D/C Purchas was able to establisha direct connection with that computer and browse the shared folder in which he found nine files consistent with child pornography.

Hedownloaded and viewed one of these files and confirmed it to be child pornography. [5] The police conducted an online Domain Name System (DNS) check and received information that the IP address 79.99.175.130was registered to the internet service provider (ISP) Rogers in the Toronto area. [6] On that same day, May 28, 2007, the police emailed a “Letter of Request for Account Information Pursuant to a Child SexualExploitation Investigation” to Rogers, requesting the subscriber information for the user of that particular IP address at the relevant time.The request was made under the authority of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5(PIPEDA). [7] Later on May 28, 2007, the police received a response from Rogers that the subscriber to that particular IP address was theApplicant and provided his home address. [8] Based on the subscriber information obtained by the police from Rogers, on June 12, 2007, the police obtained a warrant undersection 487 of the Criminal Code, R.S.C. 1985, c.

C-46, to search the Applicant’s home. The police executed the warrant on June 13,2007 and seized certain items, including documents, a computer and several CDs/DVDs that contain alleged child pornography.

Section 8 Privacy Right [9]

Section 8 of the Charter states: “Everyone has the right to be secure against unreasonable search and seizure.” In Canada(Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc., (SCC), [1984] 2 S.C.R. 145 atpp. 159-160, the Supreme Court of Canada explained this right as follows: The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the rightguaranteed by

Section 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as anentitlement to any “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situationthe public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’sprivacy in order to advance its goals, notably those of law enforcement. [10] Thus, the first issue for determination is whether the Applicant has established, on a balance of probabilities, that he had areasonable expectation of privacy in the place searched or the items seized. [11] In order to address this question, it is important to ascertain the information in which the Applicant asserts he had a reasonableexpectation of privacy.

This was the fundamental initial question posed in R. v. Ewanyshyn, an unreported 2009 decision of the Court ofQueen’s Bench of Alberta. [12] In this case, D/C Purchas was able to connect directly with the Applicant’s computer using the Gnutella Peer to Peer network,which is an open source, public, file sharing computer network. In the Information to Obtain the Search Warrant, D/C Purchas explainedhow, using the Peer to Peer technology, he was able to browse the shared folder on the Applicant’s computer and determine that itcontained the alleged child pornography.

In fact, it was the Applicant’s use of the Peer to Peer network, technology that facilitatessharing of files, that allowed D/C Purchas to locate the alleged pornography. As was the case in Ewanyshyn, given that the Applicantavailed himself of file sharing software, I am of the view that it cannot be said that he had a reasonable expectation of privacy in theshared computer file. As stated in Ewanyshyn at para. 20, “the police learned of the contents of this computer because of the peer-to-peer software of the computer, and not because any name or address was given to them by Shaw, Mr.

Ewanyshyn’s ISP.” In other words,anyone knowledgeable about navigating the internet could have accessed this shared computer file and found this information. [13] In addition, the determination by the police that the Applicant’s IP address belonged to Rogers did not infringe upon anyreasonable expectation of privacy of the Applicant, as this is also readily available public information. [14] The real issue is whether the Applicant had a reasonable expectation of privacy in his name and address that he provided toRogers, and that Rogers then gave to the police, enabling them to obtain the warrant to search his home and his computer. [15] In R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128, the Supreme Court of Canada considered the nature of

section 8and held that a reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. It went on to statethat when assessing the totality, relevant factors include the following:

i) Presence at the time of the search; ii) Possession or control of the property or place searched; iii) Ownership of the property or place; iv) Historical use of the property or item;

v) The ability to regulate access, including the right to admit or exclude others from the place;

vi) The existence of a subjective expectation of privacy; and vii) The objective reasonableness of the expectation. [16] In R. v. Plant, (SCC), [1993] 3 S.C.R. 281, the issue was whether Mr. Plant had a reasonable expectation ofprivacy in the computer records that revealed the electricity consumption at his home.

In determining that he had no reasonableexpectation of privacy, the Supreme Court stated at p. 293: In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect abiographical core of personal information which individuals in a free and democratic society would wish to maintain and control fromdissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices ofthe individual.

The computer records investigated in the case at bar while revealing the pattern of electrical consumption in the residencecannot reasonably be said to reveal intimate details of the appellant’s life since electricity consumption reveals very little about thepersonal life style or private decisions of the occupant of the residence. [17] In R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, the Supreme Court considered whether the Applicant had a reasonableexpectation of privacy in FLIR imaging which revealed the heat profile emanating from a house.

In that case, the Court focused onwhether or not the FLIR imaging data, in and of itself, could be said to reveal information touching on Tessling’s “biographical core.” Itconcluded that since the information from the FLIR imaging alone revealed nothing about the Applicant’s personal activities, theinformation could not attract s. 8 protection. [18] R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569 was a recent case of a sniffer dog being used to conduct random searches ofstudent backpacks in a school gymnasium. The dog reacted to one of the backpacks, and the police opened it without a warrant andfound drugs.

The student was charged with possession of marijuana and psilocybin for the purpose of trafficking. The Supreme Courtconfirmed that there were two unreasonable searches, namely the informational search conducted by the sniffer dog and the actual searchof the backpack. In this decision, the Court stated that the various categories of information (including ‘biographical core of personalinformation’) are a useful analytical tool, but not are not intended to be a conclusive classification of informational privacy.

Position of the Applicant [19] The Applicant submits that the warrant to search his home was unlawfully obtained because the police did not have lawfulauthority to acquire the private information from Rogers that was critical to obtaining the search warrant. [20] The Applicant relies on, among other cases, R. v. Kwok, [2008] O.J. No. 2414 (C.J.) and R. v. Cuttell, 2009 ONCJ 471, 247C.C.C. (3d) 424, both decisions of the Ontario Court of Justice. [21] In Kwok, the court held that there was a reasonable expectation of privacy in the name and address of a subscriber to an IPaddress.

However, it is noted that in Kwok, the IP address that led to the search warrant was obtained in the course of a chat roomconversation between the accused and the police. In the case at bar, there was no online chatting nor exchange of email. Rather, the IPaddress that the police traced back to the Applicant as a subscriber was a part of every communication that was sent out each time theApplicant utilized his connection to the internet. [22] As well, in Kwok, there was no evidence about the contractual agreement between Mr. Kwok and Rogers with respect to keepinginformation private.

Similarly, in Cuttell, there was no specific evidence before the court regarding the nature of the contract betweenMr. Cuttell and Bell. Indeed, Pringle J. in Cuttell noted at para. 3 that had such a contract existed, it might have altered expectationsrelating to privacy. Position of the Crown [23] In short, the position of the Crown is that in this case, subscriber name and address is not biographical core information in whichthe Applicant reasonably would expect to have a privacy interest.

When the nature of this information is coupled with the terms of theApplicant’s agreement with Rogers, the Crown submits that there is no reasonable expectation of privacy in the information disclosed byRogers. In addition to seeking to factually distinguish Kwok from the case at bar, the Crown also observes that its conclusion wasexplicitly rejected by both the Court of Queen’s Bench of Saskatchewan in R. v. Spencer, 2009 SKQB 341, [2009] S.J. No. 798 and thisCourt in R. v. Wilson, [2009] O.J. No. 1067 (S.C.J.), and has been questioned on other occasions.

Analysis [24] I return to the principles articulated in Edwards. Plant and Tessling. [25] The search occurred neither in the Applicant’s presence nor at his home; rather, the alleged search was at the office of Rogers. It is accepted that as a subscriber, the Applicant could not regulate access to the offices of Rogers. This fact weighs against the existenceof a reasonable expectation of privacy. [26] The subject matter was in the hands of Rogers. Was this information subject to an obligation of confidentiality? [27] In this case, the Rogers Yahoo! Hi Speed End User Agreement provides as follows: (

i) Paragraph 4(

b) prohibits Rogers users from using the services to post, upload, transmit, disseminate or otherwise make availableobjectionable information, including without limitation, any transmissions constituting, assisting or encouraging conduct that wouldconstitute a criminal offense, give rise to civil liability, or otherwise violate any municipal, provincial federal or international law, orderor regulation; (ii) Paragraph 13(

b) stipulates, among other things, that the customer does not own the IP address, and that it may be modified,

changed or removed without notice to the customer; (iii) Paragraph 15(

a) regulates content and provides as follows: Rogers may monitor or investigate content or your use of our networks.We may also access, preserve or disclose information to comply with the legal process in Canada or foreign jurisdictions. It goes on toprovide that Rogers reserves the right to move, remove or refuse to post any information or materials, in whole or in part, that we decideare unacceptable, undesirable, or in violation of this Agreement; (iv) Paragraph 16(b)(ii) addresses Suspension/Termination for Cause.

It provides that service can be terminated or suspendedimmediately, without notice, for, among other reasons, breach of any term of the agreement and when Rogers suspects that the servicesaccount or equipment is the subject of improper use. [28] Paragraph 29 of the Rogers Terms of Service document is entitled “Confidentiality of Your Information”, and begins as follows:Unless you provide express consent, or disclosure is required pursuant to a legal power, all information regarding you kept by us, otherthan your name, address and listed telephone number, is confidential and may not be disclosed by us to anyone other than… [emphasismy own] [29] The introductory provision of paragraph 29 is followed by a number of possible recipients of information, which includes a lawenforcement agency whenever Rogers has reasonable grounds to believe that the user has knowingly supplied them with false ormisleading information, or when the user is otherwise involved in unlawful activities. [30] In my view, these two contractual documents disclaim any suggestion of privacy or confidentiality in the information held byRogers.

Thorburn J. reached the same conclusion with respect to an identical clause in a Rogers contract in R. v. Vasic (2009), (ON SC), 185 C.R.R. (2d) 286 (Ont. S.C.J.) at para. 56. [31] The Applicant submits that the contract he signed with Rogers is essentially a waiver of his constitutional right to privacy.

Hisposition is that, in order to be upheld in court, the waiver would have to be explicitly read and understood by him and, moreover, hewould have to have some bargaining power in the formation of the contract. [32] I note at the outset that there is no evidence to support the contention that the Applicant did not understand what he was agreeingto. In any event, this was simply a contract with Rogers – not a waiver of constitutional rights. The contract provided that Rogers wouldnot divulge information, apart from the Applicant’s name, address and telephone number, unless required to do so by law.

In thissituation, agreeing to allow one’s name and address to be released does not amount to a waiver of constitutional rights. I note that LeitchJ. in R. Wilson, supra, citing both Plant and McCombs J.’s decision in R. v. Lillico (1994), (ON SC), 92 C.C.C. (3d)90 (Ont. Gen.

Div.), held that “while a third party commercial enterprise ought to be expected to maintain privacy in confidentialcustomer information, that information would not include subscriber names and addresses.” In my view, this statement is directlyapplicable to the facts of this case, and counters the Applicant’s assertion that this contract amounted to a waiver of constitutional rights. [33] In addition, the police technique of requesting the information from Rogers was not intrusive in relation to the Applicant’sprivacy interests.

As already noted, according to the terms of the End User Agreement, the Applicant was expressly denied anyproprietary claim over his IP address, which remains the exclusive property of Rogers. [34] Does the subscriber information on its own does reveal any core biographical information? As stated by Nadel J. in R. v. Friers,2008 ONCJ 740, [2008] O.J. No. 5646 at para. 23, a “name alone says very little about the intimate details of the lifestyle and personalchoices of an individual.” (See also R. v. Wilson, supra, which also, at para. 32, explicitly extends this sentiment to addresses; R. v.Stucky, [2006] O.J.

No. 108, [2006] O.T.C. 30 (S.C.J.); R. v. Brown, [2000] O.J. No. 1177, [2000] O.T.C. 232 (S.C.J.); R. v. Cole, [2006]O.J. No. 1402, [2006] O.T.C. 341 (S.C.J.). [35] The Applicant suggests that the decisions in Friers and Wilson, among others, ignore the refinement of the category ofinformation articulated in A.M. As stated, in A.M., the Supreme Court held that categories of information are a useful analytical tool andnot a classification intended to be conclusive of the analysis of informational privacy.

It went on to state: …Not all information that fails to meet the “biographical core of personal information” test is thereby open to the police. Wiretaps targetelectrical signals that emanate from a home; yet it has been held that such communications are private whether or not they disclose core‘’biographical” information…The privacy of such communications is accepted because they are reasonably intended by their maker tobe private: R. M. Pomerance, “Shedding Light On the Nature of Heat: Defining Privacy in the Wake of R. v.

Tessling” (2004) 23 C.R.(6th) 229. [My emphasis.] [36] It was important for the Supreme Court to express that the category of information should not be conclusive in light of the rapidadvance of technology, and the untold potential ways for various types of personal information to be revealed. The example of theelectrical signals that are targeted by wiretaps makes this point well. However, in my view, the authorities relied upon by the Crown donot rely solely upon the classification of the information in reaching their conclusions as to the applicability of

section 8. In those cases,it was a tool or a factor in their respective analyses, but not the sole determinant as other factors were also considered. Similarly, in myanalysis, the category of information is a significant factor, but not a conclusory one.

I also note that in Ewanyshyn, the court referredspecifically to A.M., and as such, it can be inferred that the court was aware of the Supreme Court’s comments about the use ofcategories of information. [37] In this case, I am not persuaded that the Applicant’s name and address that the police received from Rogers revealed anypersonal lifestyle choices about the Applicant to the police. It is basic commercial information.

In my view, it was not the name andaddress that revealed private personal detail; it was the computer files that the Applicant knowingly shared through his use of the Peer toPeer network that disclosed his personal choices. [38] In considering the objective reasonableness of an expectation of privacy in information in the hands of third parties, it is alsonecessary to examine the relevant provisions of PIPEDA. In this case, the request for the information from Rogers was made undersection 7(3) (c.1) of PIPEDA.

[ 39 ] The purpose of PIPEDA is set out in

section 3 of the Act which provides as follows: The purpose of this

Part is to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information for purposes that a reasonable person would consider appropriate in the circumstances. [ 40 ] Section 7(3) of PIPEDA states that “an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is”: (c.

i) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that…. (ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law…. [ 41 ] It cannot be in dispute that the police must investigate crime; that is their duty: see Hill v Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41 , [2007] 3 S.C.R. 129 at para. 55 .

In my view, when D/C Purchas sent the Letter of Request for Account Information Pursuant to a Child Exploitation Investigation to Rogers, he was acting in the lawful execution of his duties to investigate crime, prevent crime and apprehend criminals. [ 42 ] PIPEDA grants authority to an organization to use and disclose information that it has collected for the purpose of assisting with an investigation of the contravention of the laws of Canada. There is no requirement for a court order. Upon receipt of this request, Rogers could have refused to provide the information. The evidence of Mr.

Lorne Ellison, an investigator in the Law Enforcement Support group at Rogers, was that save for investigation into child exploitation or in exigent circumstances, Rogers will require a warrant or a subpoena to produce information. [ 43 ] It is also not in dispute that the enactment of PIPEDA was focused on protecting the privacy rights of Canadians.

However, I do not read the legislation as requiring that the police obtain judicial pre-authorization prior to information being disclosed when the organization, such as an ISP like Rogers, has the lawful authority to disclose as long as it has reasons to believe there is an investigation relating to the enforcement of a law of Canada. [ 44 ] In this regard, I note that in her 2007 Customer Name and Address Information Consultation Document, the Privacy Commissioner of Canada noted the Canadian government’s clarification of the overall intent of

section 7 of PIPEDA : The government wishes to confirm that the purpose of s. 7 (3)(c.

l) is to allow organizations to collaborate with law enforcement and national security agencies without a subpoena, warrant or court order. Organizations who share information with government institutions, including law enforcement and national security agencies, in accordance with the requirements of this provision, are doing so in compliance with PIPEDA .

Office of the Privacy Commissioner of Canada, Customer Name and Address Information and Address Information Consultation Document: Response of the Office of the Privacy Commissioner of Canada to Public Safety Canada by Jennifer Stoddart, Privacy Commissioner of Canada, (Ottawa: Office of the Privacy Commissioner of Canada, 2007). [ 45 ] The Applicant submits that the overriding policy consideration behind PIPEDA is the privacy of personal information and that its terms do not confer lawful authority on the police to conduct a warrantless search.

With respect, I do not consider the request for information to be a warrantless search.

Section 7 of PIPEDA is a permissive provision that allows an organization to provide the requested information. The organization, as well, could refuse to provide the information. In this case, as part of their investigation, the police simply asked for information from a third party that is not bound by an obligation of confidentiality to the Applicant.

In my view, this is something that the police must routinely be allowed to do as part of their job. (See also the conclusions in Wilson , supra , at para. 38.) [ 46 ] I also turn to the Applicant’s subjective expectations, again one of the Edwards factors to be assessed along with the other considerations. In this case, there has been no evidence to persuade me as to the Applicant’s subjective expectation of privacy.

Conclusion [ 47 ] In sum, on the totality of the circumstances, I find the Applicant had no reasonable expectation of privacy in the information, that is, his name and address, provided by Rogers to the police. [ 48 ] Rather, the Applicant of his own accord used a file sharing system that enabled the police to look at the files on his computer.

The provisions in the Rogers documents repudiate the suggestion of confidentiality in these circumstances, given that Rogers specifically indicates, among other things, that it can disclose information to comply with legal process and to ensure compliance with its user agreement. These factors in my view distinguish this case from Kwok ; however, in any event, I respectfully disagree with the conclusion in Kwok . The information at issue, that is, the Applicant’s name and address, is general information routinely exchanged as part of commercial interactions.

It does not affect his dignity, integrity or autonomy, nor does it reveal that biographical core of personal information to which the cases refer. The request was made under the authority of PIPEDA , and responded to by Rogers in accordance with its own administrative policies. [ 49 ] Accordingly, all of these factors lead me to find that there has been no breach of the Applicant’s

section 8 right. 24(2) Analysis [ 50 ] If I am in error in my

section 8 analysis, and in the interest of completion, I turn briefly to section 24(2) of the Charter , and the effect of admitting the evidence on society’s confidence in the justice system, in accordance with the principles set out in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353.

Seriousness of the State Conduct [ 51 ] In my view, if there was a

section 8 breach, the police action in requesting the information is at the low end of the seriousness scale. They requested the information pursuant to the PIPEDA protocol. Moreover, the Rogers contractual documents allow for disclosure of the information, and the investigative procedure used has been judicially considered and held not to constitute a

section 8 search in a number of cases. In particular, at the preliminary inquiry, D/C Purchas testified that he has made this type of request well over a hundred times to Rogers, Bell or other service providers and that his requests have never been refused. These facts display no pattern of negligent, much less deliberate, disregard for Charter rights; rather, they suggest that D/C Purchas was acting in good faith throughout. Impact on the Charter Protected Rights of the Accused [ 52 ] In my view, if there was a

section 8 breach, the impact on the Applicant’s rights was minimal. The information obtained was already in the commercial records of a third party. The search occurred at the Rogers office, in a reasonable and unobtrusive way. This is not information for which an individual enjoys a high expectation of privacy, such as a private home, nor is it information that demeans his dignity. The information was ultimately discoverable had Rogers not complied with the PIPEDA request. [ 53 ] I also reject any suggestion that the facts in this case are analogous to R. v.

Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253, where Justice Fish observed at para. 2 that “[i]t is difficult to imagine a more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.” In this case, the privacy interest to be considered is the Applicant’s name and address, not the contents of his computer. Society’s Interest in Adjudication on the Merits [ 54 ] The information obtained is highly reliable documentary evidence that connects the Applicant's name and address to the IP address observed by the police to have been involved in child pornography.

The evidence is crucial to the case. There is a strong societal interest in ensuring that those who transgress the law are brought to trial. In my view, the truth seeking function of the criminal trial would be better served by the admission of the evidence. As well, I reject the suggestion that the long-term reputation of the justice system would suffer because of admission of the evidence in this case, evidence obtained following a police officer’s good faith conduct during the investigation of a serious crime. [ 55 ] For all these reasons, I conclude that even had there been a

section 8 breach, the application to exclude the evidence should be dismissed. ___________________________ CROLL J. DATE: December 10, 2010