



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Ward, 2012 ONCA 660

DATE:  20121002

DOCKET: C50206

Winkler C.J.O., Doherty and Goudge JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Ward

Appellant

Jonathan Dawe, for the appellant

Michal Fairburn, for the respondent

James Stribopoulos and Lindsay Daviau, for the
    intervener, the Canadian Civil Liberties Association

Heard: January 12, 2012

On appeal from the convictions entered by Justice Randall
    W. Lalande of the Ontario Court of Justice on August 8, 2008.

Doherty J.A.:


I



[1]

Access to, the possession of, and trafficking in child pornography over
    the Internet present serious and pressing societal problems.  Easy entry to the
    Internet, from almost anywhere, the international nature of the trade in child
    pornography, and user anonymity combine to make effective law enforcement
    difficult.

[2]

The police, in the course of investigating child pornography crimes on
    the Internet, sometimes request and receive the names and addresses of
    customers from Internet Service Providers (ISP).  The police make this
    request following a protocol developed by the police and the ISPs, but without seeking
    or obtaining any prior judicial authorization.  Using information gathered from
    other sources and the information provided by the ISP, the police can connect a
    customers account to specific Internet activity.  That connection may assist
    in developing reasonable and probable grounds to obtain a search warrant for
    the customers residence and computer.  Those searches may in turn lead to the discovery
    of child pornography, and the arrest and prosecution of the customer for child
    pornography offences.

[3]

The police practice of seeking and obtaining customer information from
    ISPs and using that information to obtain search warrants has been
    constitutionally challenged as an unreasonable search and seizure in several
    cases.  The majority of the cases have held that a customer does not have a
    reasonable expectation of privacy in the information provided by the ISP:
e.g.
see
R. v. Trapp
, 2011 SKCA 143, 377 Sask. R. 246, Ottenbreit J.A.,
    concurring;
R. v. Spencer
, 2011 SKCA 144, 377 Sask. R. 280, Caldwell
    J.A., concurring;
R. v. Wilson
, [2009] O.J. No. 1067 (S.C.);
R. v.
    Vasic
(2009)
, 185 C.R.R.
    (2d) 286 (Ont. S.C.);
R. v. Brousseau
, 2010 ONSC 6753, 264 C.C.C. (3d)
    562; and
R. v. McNeice
, 2010 BCSC 1544.  Others have recognized a
    reasonable expectation of privacy in the information, but have held that the
    police acted reasonably in obtaining the information without prior judicial
    authorization: see
Trapp
, Cameron J.A., for the majority.  Some cases
    have found a violation of s. 8 of the
Canadian Charter of Rights and
    Freedoms
:
e.g.
see
R. v.  Kwok
(2008)
, 78 W.C.B. (2d) 21 (Ont. C.J.);
R. v. Cuttell
,
    2009 ONCJ 471, 247 C.C.C. (3d) 424.  This court addresses the constitutionality
    of this police practice for the first time.  I would hold that in the
    circumstances presented here, the appellant has not established a reasonable
    expectation of privacy.


II



overview and position of the
    parties

[4]

The police, in the course of a child pornography investigation, sought
    the name and address of a customer (sometimes referred to as subscriber
    information) from Bell Sympatico, a Canadian ISP.  Bell Sympatico chose to
    co-operate with the police and provided what turned out to be the appellants
    name and address.  That information, combined with other information gathered
    by the police during their investigation, enabled the police to obtain a search
    warrant for the appellants residence and his computer.  That search yielded
    over 30,000 images of child pornography, along with about 373 videos containing
    child pornography.  The appellant was charged with one count of possession of
    child pornography and one count of accessing child pornography.

[5]

At trial, the appellant defended the charges exclusively on the basis
    that the search of his residence and computer violated his rights under s. 8 of
    the
Charter
,
and that s.
    24(2) of the
Charter
required the exclusion of the evidence found in
    the search.  The trial judge rejected the
Charter
claim and admitted
    the evidence:
R. v. Ward
, 2008 ONCJ 355, 176 C.R.R. (2d) 90.  Convictions
    followed and the appellant was sentenced to 11 months imprisonment and three
    years probation.  He appealed his convictions and sentences, but has abandoned
    his sentence appeal.

[6]

The appellant raises two grounds of appeal.  Both repeat the arguments unsuccessfully
    advanced at trial.  First, the appellant submits that he had a reasonable
    expectation of privacy in his subscriber information held by Bell Sympatico and
    that his constitutional right to be free from unreasonable search and seizure
    was violated when Bell Sympatico, at the request of the police, turned that
    information over to the police.  The appellant contends that the police acted unconstitutionally
    in requesting and obtaining that information without prior judicial
    authorization, other lawful authority, the appellants consent or exigent
    circumstances.

[7]

The appellant further submits that the information obtained through the
    unconstitutional seizure of his subscriber information was used to obtain the
    search warrant for his residence and computer and that without the subscriber
    information the police could not have obtained the warrant.  It follows, the appellant
    argues, that if the subscriber information was obtained unconstitutionally, the
    search warrant is invalid, rendering the search of the appellants residence and
    seizure of his computer unlawful and contrary to s. 8.

[8]

Finally, the appellant contends that the fruits of the search should
    have been excluded under s. 24(2).  As it is common ground that without the
    seized evidence the Crown had no case, the appellant asks the court to quash
    the convictions and enter acquittals.

[9]

The appellants second argument focuses on the adequacy of the contents
    of the information sworn to obtain the search warrant (ITO), and assumes that
    the police had lawfully obtained the appellants subscriber information from
    Bell Sympatico.  The appellant submits that the totality of the evidence relied
    on in the ITO did not provide grounds upon which a justice of the peace, acting
    judicially, could issue a search warrant.  As with the first ground of appeal,
    the appellant contends that if this argument succeeds, the search and seizure violate
    s. 8, the evidence should be excluded under s. 24(2), and acquittals must
    follow.

[10]

The Crown responds that the trial judge correctly found that the
    appellant had no reasonable expectation of privacy in respect of his subscriber
    information held by Bell Sympatico.  Absent a reasonable expectation of
    privacy, there could be no breach of the appellants rights under s. 8 when the
    police acquired that information from Bell Sympatico.  On the second issue, the
    Crown submits that on a review of the entirety of the ITO, there were ample
    grounds upon which the justice of the peace could, acting judicially, issue the
    warrant.  Finally, the Crown argues that if either of the appellants arguments
    succeeds, the fruits of the search of the appellants residence and the seizure
    of his computer should not be excluded under s. 24(2) and the convictions
    should stand.

[11]

The grounds of appeal do not require any discussion of the factual merits
    of the allegations.  The exclusion of the evidence under s. 24(2) of the
Charter
was the appellants only hope for acquittals.  If the evidence was admissible,
    the appellants guilt was established beyond any reasonable doubt.


III



issue #1: did the appellant have a reasonable expectation of
    privacy in the subscriber information

A.

the trial judges reasons

[12]

The trial judge correctly recognized that the appellant could not
    successfully advance a s. 8 claim unless he could demonstrate that he had a
    reasonable expectation of privacy in respect of the subscriber information held
    by Bell Sympatico.  The trial judge, again correctly, understood that in
    determining whether the appellant had demonstrated a reasonable expectation of
    privacy, he had to consider the totality of the circumstances, including
    whether the appellant had a subjective expectation of privacy in respect of
    that information: see
R. v. Tessling
, 2004 SCC 67, [2004] 3 S.C.R. 432,
    at paras. 18-19;
R. v. Patrick
, 2009 SCC 17, [2009] 1 S.C.R. 579, at
    paras. 26-27; and
R. v.

Gomboc
, 2010 SCC 55, [2010] 3 S.C.R.
    211, at para. 18, Deschamps J., concurring, at paras. 77-78, Abella J.,
    concurring.

[13]

The trial judge focussed his analyses on three factors.  First, he noted
    that the requests for assistance made by the RCMP and Bell Sympaticos cooperation
    with those requests conformed to the federal legislation governing disclosure
    of customer information to law enforcement by private sector organizations such
    as Bell Sympatico.

[14]

Second, the trial judge referred, at some length, to the terms of the
    service agreement between the appellant and Bell Sympatico, and the documents
    related to that service agreement.  That agreement addressed both Bell
    Sympaticos commitment to maintaining the confidentiality of client information,
    and its willingness to disclose client information to law enforcement
    authorities in connection with criminal investigations involving allegations of
    the criminal misuse of Bell Sympaticos services.

[15]

Lastly, the trial judge emphasized the nature of the information turned
    over to the RCMP by Bell Sympatico.  In his view, that information, the
    appellants name and address, was not the kind of information that would reveal
    intimate personal details or lifestyle choices.  The trial judge concluded his
    analysis of the totality of the circumstances at para. 68 of his reasons:

[T]he name and address was in the hands of a third party.  The
    third party was entitled to measure its obligation to maintain confidentiality
    over personal information in accordance with its contractual arrangement with the
    subscriber.  Although the applicant had a subjective expectation of privacy, I
    find in looking at the totality of the evidence that there was no objective
    reasonable expectation of privacy.  In other words the subjective expectation
    was not objectively reasonable having regard to all contextual factors and the
    totality of the circumstances.

[16]

The trial judges finding that the appellant had no reasonable
    expectation of privacy in the subscriber information decided the s. 8 claim
    against the appellant.  The trial judge had no need to go on and consider the
    reasonableness of the police conduct in obtaining the information from Bell
    Sympatico.

B.

The totality of the circumstances IN THIS
    CASE

[17]

As the trial judges reasons demonstrate, the totality of the
    circumstances engaged in this case has technical, investigative, legislative and
    contractual components.  I will examine each separately.  In doing so, I have
    tried to remain within the four corners of the trial record, although counsel,
    in an effort to educate the court (or at least one member of the panel), did refer
    to some aspects of the operation of the Internet, which they agreed were common
    knowledge.

[18]

I refer specifically to the need to stay within the evidentiary record,
    usually a self-evident proposition, because a review of other cases that have addressed
    this same issue suggests an understanding of the nature of an Internet protocol
    address (IP address) that is different than that offered by the evidence in
    this case.  Some cases indicate that the IP address is unique to that
    subscriber,
e.g.
,
Kwok
, at para. 8, and that armed with
    subscriber information and an IP address the police can compile a history of
    [the subscribers] activity on that network:
Trapp
, at para. 36,
    Cameron J.A., for the majority, at para. 78, Ottenbreit J.A., concurring.  As
    outlined below, the evidence in this case does not support the contention that
    IP addresses are unique to individual subscribers or that combining an IP
    address with subscriber information allows the police to compile a history of a
    persons activity on the Internet.  On this record, what is revealed is more in
    the nature of a snapshot than a history of ones Internet activity.

(i)

The Technical Information

[19]

The Internet, as a global system of computer networks, has become an
    increasingly important tool for the exchange of information.  Internet use for
    a variety of reasons is ubiquitous in todays society.  In many ways, the
    Internet has become the new library, shopping mall, theatre, meeting hall, and
    enumerable other venues all rolled into a single global venue available at the users
    fingertips wherever he or she might be.

[20]

Generally speaking, access to the Internet is provided to individual
    subscribers through an ISP.  A subscriber connects to the ISP network which in
    turn connects the subscriber to the Internet.  The subscriber pays a fee for
    that service.  There are a number of Canadian ISPs, including Bell Sympatico.

[21]

An IP address is a multi-digit numerical identifier that is
    automatically and randomly assigned by an ISP to a subscriber when the
    subscribers computer device connects to the Internet.  For example, one of the
    IP addresses identified on this appeal was 69.159.6.125.  There are over 4.3
    billion IP addresses worldwide.  IP addresses are reused and are not unique to
    individual subscribers, although at any given point in time, an IP address will
    be assigned to a specific subscriber.

[22]

IP addresses belong to an ISP and are controlled by that ISP.  The
    service agreement between Bell Sympatico and the appellant reflects the nature
    of an IP address in these terms:

Any IP address ... is the property of Your Service Provider at
    all times, and may be changed or withdrawn at any time in the sole discretion
    of Your Service Provider.

[23]

The ISP records the dates and times that its IP addresses are assigned
    to its subscribers.  These records identify the subscribers accounts on which
    the Internet was accessed at particular times.  However that does not
    necessarily mean that the subscriber himself or herself was using the computer
    connected to the Internet at that time, or that it was even the subscribers
    computer that was connected to the Internet.  A wired or wireless network may
    link multiple computers to a central device referred to as a shared access
    point.  When more than one computer is accessing the Internet through a shared
    access point at the same time there are additional technical issues that may
    arise.  However, this case is not concerned with multiple computers sharing an
    access point.

[24]

IP addresses are usually assigned randomly and can be changed by the ISP
    at any time.  An IP address is generally assigned by the ISP when a subscriber
    connects to the Internet.  The same IP address may last for the duration of the
    Internet connection or it may change during the same connection.  A subscriber
    will usually receive a new IP address each time he or she connects to the
    Internet.  It is unlikely that a subscriber will be assigned the same IP
    address on two different connections to the Internet.  However, subscribers who
    leave their computer or device connected to the Internet continually could use
    the Internet on separate occasions while retaining the same IP address.

[25]

The dynamic nature of an IP address is demonstrated in the details of
    the requests for information made in this case.  The police asked Bell
    Sympatico for the name and address of the subscriber associated with an IP
    address used on June 16, 2006 between 06:09:24 and 06:09:48, a span of 24
    seconds.  The other two requests relating to connections made on July 2 and
    July 6 referred only to a single point in time.  The information requested
    could not, in and of itself, reveal to the police anything about the
    subscribers computer activity before or after the three connections referred
    to in the requests.

[26]

The IP address being used at any particular point in time to connect a computer
    or a wired or wireless network to specific content on the Internet can be
    determined in various ways.  As happened in this case, some website operators
    record the IP addresses of users who access their site.  Those operators might
    choose to share that information with the police.  If the police have a
    specific IP address, they can, by accessing a website that is available to the
    public, identify the ISP that controls that IP address and a geographic
    location where it is being used.  In this case, three IP addresses were
    identified as belonging to Bell Sympatico at Sudbury.

(ii)

The Investigation

[27]

Carookee.com is a website that has operated out of Germany since 2001.  It
    offers online forums open to the general public on a wide variety of topics,
    such as politics and sports.  Individuals can create their own forum or page,
    or they may use an existing forum to post messages and exchange information.  The
    website includes about 25,000 pages.  Persons who access the website can do so
    anonymously, by utilizing anonymous e-mail addresses.

[28]

In July 2006, the owner of the website filed a criminal complaint with
    the German police alleging that some 28 pages on the website were being used to
    exchange child pornography files.  German authorities investigated and found
    that there were child pornographic images on 17 of the pages on the website.

[29]

The German authorities, by reference to the IP addresses provided to
    them by the owner of the website, determined that some of the child
    pornographic material was being accessed through Canadian ISPs.  In August or
    September 2006, the German authorities forwarded a list of 229 IP addresses and
    the times and dates associated with the accessing of the child pornography to
    the RCMP, along with copies of the related child pornography.  By accessing a
    public website, the RCMP determined that three of the IP addresses belonged to
    Bell Sympatico and were connected to the Sudbury area.  The three IP addresses
    and the relevant times and dates of the Internet connections were:

·

IP address 69.159.6.125 between 06:09:24 and 06:09:48 on June 16,
    2006;

·

IP address 69.159.10.48 at 04:35:40 on July 2, 2006; and

·

IP address 69.159.7.45 at 06:06:04 on July 6, 2006.

[30]

Access to the carookee.com site required a person to provide an e-mail
    address.  The three connections described above had been made using temporary
    e-mail addresses obtained anonymously.

[31]

On November 22, 2006, the RCMP sent letters of request to Bell Sympatico
    asking for the subscriber information of the subscriber assigned the three IP
    addresses at the times set out above.  The request indicated that it was being
    sent in accordance with s. 7(3)(c.1) of the
Personal Information
    Protection Electronic Documents Act
, S.C. 2000, c. 5 (
PIPEDA
).
     I will discuss that request in more detail below.

[32]

Bell Sympatico chose to comply with the requests.  Bell Sympatico
    provided the name and address of the subscriber  the appellant, David Ward.  It
    did not provide any other information.

[33]

After receiving the subscriber information, the RCMP contacted the
    Sudbury Police.  Detective Constable Burtt took carriage of the investigation
    for that force.  He viewed the images that had been provided to the RCMP by the
    German authorities.  The first incident, on June 16, 2006, involved the
    accessing of six images, each depicting a prepubescent boy with an erect penis.
     The second and third incidents, on July 2 and July 6, 2006, involved the
    downloading of an image of a prepubescent boy with an erect penis.  The same
    image was downloaded on both dates.  Detective Constable Burtt was satisfied
    that all of the images accessed on the three dates fell within the legal
    definition of child pornography.

[34]

Detective Constable Burtt and others on the Sudbury Police force conducted
    further investigations.  Several sources confirmed that the appellant lived at
    the residence.  Another officer was also able to confirm that the appellant lived
    alone, had a computer, did not employ a wireless network, and was a customer of
    Bell Sympatico.  Armed with this information, the information provided by the
    German authorities, knowledge of the nature of the images, and the subscriber
    information provided by Bell Sympatico, the Sudbury Police applied for a search
    warrant.

[35]

On May 23, 2007, the Sudbury Police obtained a warrant to search the
    appellants residence.  They executed the warrant the next day, while the
    appellant was home alone.  When the police entered the house, they saw child
    pornography on the appellants computer screen.  The police seized four
    computers and related material.  Forensic analysis revealed over 30,000 images and
    373 videos of child pornography.

(iii)

The Legislative Context:
PIPEDA
and the
Criminal Code

[36]

Several Canadian ISPs, including Bell Sympatico, have developed a
    protocol in conjunction with various Canadian law enforcement agencies to be
    used when those agencies are seeking subscriber information associated with the
    use of a specified IP address at a specific date and time.  The protocol
    applies to child sexual exploitation investigations: see Suzanne Morin, 
Updated: Business Disclosure of Personal Information
    to Law Enforcement Agencies
:
PIPEDA
and the CNA Letter of Request Protocol,
Privacy Pages: CBA National and
    Privacy Access Law Section Newsletter
(November 2011), pp. 1-20.

[37]

Under the protocol, the police send a requesting letter to the ISP
    identifying the requesting officer, indicating that the officer is conducting
    an investigation in relation to child exploitation offences under the
Criminal
    Code
, and seeking disclosure of the last known customer name and address
    of an account holder associated with a specified IP address used at a specific date
    and time.  The letter states that the request is made pursuant to s. 7(3)(c.1)
    of
PIPEDA
.  The officer identifies his authority for the request by
    reference to the legislation governing the particular police force and the
    common law police powers.  The letter provides no details of the specific
    investigation.

[38]

The requesting letter contains a space where the information sought by
    the police can be inserted by the ISP.  If the ISP chooses to provide that
    information, it fills in the space and returns the letter to the requesting
    officer.

[39]

In this case, Bell Sympatico received requests, referable to each of the
    three IP address connected to images of child pornography.  These requests
    complied with the protocol.  Bell Sympatico chose to cooperate with the
    requests, inserted the appellants subscriber information in the letters and
    returned them to the RCMP.

[40]

PIPEDA
, the statutory authority referred to in the form letter,
    is federal legislation governing the collection, use and disclosure of customers
    personal information in the private sector.
PIPEDA
applies to any
    organization  a broadly defined term in the Act  that collects, uses or
    discloses the personal information  again a broadly defined term in the Act
     in the course of their commercial activities:
PIPEDA
, ss. 2 and 4.
PIPEDA
applies to Bell Sympaticos disclosure of its customers

personal information.

[41]

PIPEDA
recognizes and seeks to protect an individuals right to
    privacy in respect of personal information provided to organizations.  At the
    same time,
PIPEDA
acknowledges that disclosure of that information by
    those organizations will in some circumstances be reasonable and appropriate.  The
    dual rationale underlying the legislation is reflected in s. 3:

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 and the need of organizations to
    collect, use or disclose personal information for purposes that a reasonable
    person would consider appropriate in the circumstances.

[42]

Subsection 5(3) further confirms reasonableness as the touchstone of permissible
    disclosure of personal information under the Act:

An organization may collect, use or disclose personal
    information only for purposes that a reasonable person would consider are
    appropriate in the circumstances.

[43]

Subsection 5(1) of
PIPEDA
requires that an organization, like
    Bell Sympatico, comply with the obligations set out in Schedule 1 of the Act.  That
    schedule details the Principles Set Out in the National Standard of Canada
    Entitled
Model Code for the Protection of Personal Information
,
    CAN/CSA-Q830-96.  The principles found in Schedule 1 begin from the premise
    that an organization cannot disclose personal information obtained from a customer
    without the knowledge and consent of the customer. As s. 3 and s. 5(3) acknowledge,
    however, disclosure is appropriate in certain circumstances.  Subsection 7(3)
    of the Act sets out circumstances in which an organization may, if it chooses
    to do so, disclose a customers personal information without the customers knowledge
    or consent.  Some of the circumstances described in s. 7(3) contemplate
    disclosure to governmental authorities, including the police.   For present
    purposes, the relevant disclosure provision is s. 7(3)(c.1)(ii):

7. (3) For the purpose of clause 4.3 of Schedule 1, and despite
    the note that accompanies that clause,
an

organization
    may disclose personal information without the knowledge or consent of the
    individual if the disclosure is

...

(c.1)
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....  [Emphasis added.]

[44]

In this case, the letters of request sent by the RCMP to Bell Sympatico
    identified the government institution making the request  the RCMP;
    identified the lawful authority for the request  the
Royal Canadian
    Mounted Police Act
, the Royal Canadian Mounted Police Regulations, and the
    common law; and indicated that the disclosure was requested only for the
    purpose of an investigation in relation to child sexual exploitation offences
    under the
Criminal Code
, a law of Canada.

[45]

The disclosure contemplated by s. 7(3) is discretionary.  The
    organization asked to make disclosure of customer records must exercise that
    discretion in accordance with the overarching principle enunciated in s. 5(3)
    of
PIPEDA
.  The disclosure must be for purposes that a reasonable
    person would consider are appropriate in the circumstances.  In exercising
    that discretion, the organization is entitled to consider factors such as the
    nature of the investigation, and the nature of the information requested: see
    Andrea Slane & Lisa M. Austin, Whats in a Name? Privacy and Citizenship
    in the Voluntary Disclosure of Subscriber Information in Online Child
    Exploitation Investigations (2011) 57 Crim. L.Q. 486, at pp. 496-498.

[46]

The trial judge found, at para. 57 of his reasons, and the parties and the
    intervener agree, that
PIPEDA
does not create any police search and seizure
    powers.  I agree with this interpretation.
PIPEDA
sets out the
    circumstances in which organizations may lawfully choose to disclose personal customer
    information, which must normally be kept confidential, to third parties
    including, in some circumstances, the police.

[47]

Crown counsel acknowledges that nothing in
PIPEDA
empowers the
    state to interfere with an individuals rights under s. 8 of the
Charter
.
     It does not follow that because an organization can disclose information to
    the state under
PIPEDA
that an individual has no privacy interest as
    against the state in that information for the purposes of s. 8.  The terms of
PIPEDA
are, however, relevant to the s. 8 analysis to the extent that they speak to
    the existence and scope of a reasonable expectation of privacy in respect of information
    in the hands of an organization operating under the auspices of
PIPEDA
.

[48]

Subsection 487.014(1) of the
Criminal Code
is also germane
    given the disclosure regime established by
PIPEDA
:

For greater certainty, no production order is necessary for a
    peace officer ... enforcing or administering this or any other Act of
    Parliament to ask a person to voluntarily provide to the officer documents,
    data or information that the person is not prohibited by law from disclosing.

[49]

Subsection 487.014(1) seems to state the self-evident, perhaps
    explaining the opening phrase for greater certainty.  The section provides
    that where a person is not prohibited by law from disclosing information, the
    police may request disclosure of that information without prior judicial
    authorization.  Read with
PIPEDA
, s. 487.014(1) allows the police,
    without obtaining prior judicial authorization, to ask an organization for information
    which that organization is lawfully entitled to disclose under
PIPEDA
.

[50]

With respect to the contrary opinion reached by the majority in
Trapp
,
    at para. 66, I do not read s. 487.014(1) as creating or extending any police
    search or seizure power.  The police request identified in the section,
    standing alone, is not a search or seizure.  The request, coupled with the
    voluntary cooperation with the request by the third party holder of the
    information, may or may not be a search or seizure depending on whether a
    claimant can establish a reasonable expectation of privacy in the information
    as against the state.  That determination will depend on an assessment of the
    totality of the circumstances.  Legislative provisions affecting either the
    police authority to request the information from third parties,
e.g.
s. 487.02(1), or the third partys ability to voluntarily disclose that
    information to the police,
e.g. PIPEDA
, are relevant to the reasonable
    expectation of privacy inquiry but do not create police powers to search or seize.

[51]

The appellant does not challenge the constitutionality of either
PIPEDA
or s. 487.014(1).

(iv)

The Service Agreement

[52]

The relationship between Bell Sympatico and the appellant was governed
    by a service agreement and related documents setting out the terms on which Bell
    Sympatico agreed to provide services, including Internet connection, to the
    appellant.  The contract between Bell Sympatico and the appellant is a classic
    contract of adhesion.  Bell Sympatico unilaterally set the terms of the service
    agreement and related documents.  If the appellant wanted the service provided
    by Bell Sympatico, he had to agree to Bell Sympaticos terms.

[53]

The terms of the service agreement included the following:

You will not use the Service in a manner that is contrary to
    any applicable law or regulation, and you will abide by Your Service Providers
    policies, including without limitation the Acceptable Use Policy, which set forth
    additional rules that govern your activity in connection with the Service.

[54]

The Acceptable Use Policy (AUP) attached to the service agreement
    provided that any violation of the AUP constituted a violation of the service
    agreement that could result in termination of the agreement.  The AUP
    specifically prohibited:

5.
Uploading or downloading
, transmitting, posting,
    publishing, disseminating, receiving, retrieving, storing or otherwise
    reproducing, distributing or providing access to information, software, files
    or other material which ... (ii) are defamatory, obscene,
child pornography
or hate literature....

...

11.     Transmitting,
    posting, receiving, retrieving,
storing or otherwise
    reproducing, distributing or providing access to any program
or information

constituting
or encouraging
conduct
that would constitute a criminal offence
.

12.     Violating
    or breaching any applicable law.  [Emphasis added.]

[55]

Paragraph 17 of the service agreement put the appellant on notice that
    Bell Sympatico reserved the right:

from time to time to monitor the Service electronically ... and
    to
disclose any information necessary to satisfy any
    laws, regulations or other governmental request
from any applicable
    jurisdiction,
or as necessary to operate the Service or
    to protect itself or others.
[Emphasis added.]

[56]

In the AUP, Bell Sympatico made it clear that it would:

offer full co-operation with law
    enforcement agencies
in connection with any investigation arising from a
    breach of this AUP.  [Emphasis added.]

[57]

The service agreement also addressed the privacy features Bell Sympatico
    offered to its customers.  In the agreement, Bell Sympatico undertook to
    protect its clients personal information in a manner that was consistent
    with Bell Customer Privacy Policy and the Bell Code of Fair Information
    Practices.  While it is not entirely clear, it would appear that the name and
    address of a customer, standing alone, would not qualify as personal
    information for the purposes of Bells privacy policy and practices.

[58]

The service agreement further provided that customers like the
    appellant, by subscribing to the service, consented to the collection, use and
    disclosure of their personal information as described in Bell Sympaticos
    policies and practices, unless the customer specifically withdrew that consent
    by completing an opt-out form.  There is no evidence that the appellant
    opted out.

C.

legal analysis

(i)

A Broad and Purposive Interpretation of s. 8

[59]

Before examining the specific issues raised on this appeal, it is
    important to describe the jurisprudential landscape on which the issue raised
    by this ground of appeal must be resolved.  I begin with the language of s. 8. 
    It declares with eloquent simplicity that:

Everyone has the right to be secure against unreasonable search
    or seizure.

[60]

Section 8 stands as a shield against unjustified state intrusions on
    personal privacy:
R. v. Kang-Brown
, 2008 SCC 18, [2008] 1 S.C.R. 456,
    at para. 8.  Section 8 recognizes and constitutionally protects every persons
    right to live his or her life free of government intrusion except to the extent
    that the intrusion is reasonable.  Personal privacy, broadly construed,
    includes control over ones body and bodily substances (physical privacy),
    control over certain places such as ones residence (territorial privacy), and
    control over information about the person and/or his activities (informational
    privacy):
Tessling
, at paras. 20-24.

[61]

The fundamental importance of personal privacy cannot be denied. 
    Personal privacy is a prerequisite to individual liberty, security,
    self-fulfilment and autonomy.  Personal privacy is also a precondition to the
    maintenance of a thriving democratic society:
R. v. Dyment
, [1988] 2
    S.C.R. 417, at pp. 427-428;
R. v. Wong
, [1990] 3 S.C.R. 36, at pp.
    45-46;
R. v. Wise
,
[1992]
    1 S.C.R. 527, at p. 558, La Forest J., dissenting (but not on this point);
R.
    v. Plant
, [1993] 3 S.C.R. 281, at pp. 292-293; and
Tessling
, at
    paras. 12-16.

[62]

Section 8, like all
Charter
rights, must be interpreted broadly
    so as to best achieve the purpose underlying the right.  As set out above, the protection
    of personal privacy from unreasonable state intrusion is the primary purpose of
    s. 8:
Hunter v. Southam Inc.
, [1984] 2 S.C.R. 145, at pp. 158-159;
Dyment,
at p. 253.

[63]

The purposive and broad interpretation of s. 8 is evident in the
    jurisprudence of the Supreme Court of Canada.  Several facets of that
    jurisprudence are germane to this case.  To begin with, the concepts of search
    and seizure are not defined by reference to the nature of the state conduct in
    issue, but primarily by reference to the effect of that conduct on the reasonable
    expectation of privacy of those targeted by the conduct:
R. v. Evans
,
    [1996] 1 S.C.R. 8, at para. 11;
R. v. Buhay
, 2003 SCC 30, [2003] 1
    S.C.R. 631, at paras. 33-34;
R. v. Law
, 2002 SCC 10, [2002] 1 S.C.R.
    227, at para. 15;
Wise
, at p. 538;
Tessling
, at para. 18; and
Gomboc
, at para. 77, Abella J., concurring.

[64]

Thus, while from the police perspective, it could be said that they merely
    asked Bell Sympatico for its assistance and Bell Sympatico volunteered its
    cooperation, from the appellants perspective, the police, through their
    request and Bell Sympaticos cooperation, acquired personal information about the
    appellants computer use that the appellant claimed he was reasonably entitled
    to expect would not be made available to the police without some prior judicial
    authorization.  If the appellant had a reasonable expectation of privacy with respect
    to the information, the police acquisition of that information falls within the
    meaning of search and seizure for the purposes of s. 8 even though the state
    conduct was in no way coercive and Bell Sympatico voluntarily turned over the
    information.

[65]

A purposive reading of s. 8 also requires that the court identify the
    subject matter of the alleged search, not narrowly in terms of the physical
    acts involved or the physical space invaded, but rather by reference to the
    nature of the privacy interests potentially compromised by the state action.  Thus,
    in
Patrick
, at para. 29, the court described the target of the search,
    not as the appellants garbage bags left on the street, but rather as the appellants
    personal information that could be gleaned from an examination of the contents
    of the
garbage bags.  In
Kang-Brown
, at para. 58, the court described the target of the search by the
    sniffer dog as the contents of the bag sniffed, and not merely the air
    surrounding the bag.  Similarly, in
Tessling
and in
Gomboc
, the court characterized searches
    by reference to the information that could potentially be revealed about
    activities with the home and not simply as information about electricity or
    heat consumption within the home.

[66]

The proper characterization of the subject matter of
    the state conduct is important in this case.  Ms. Fairburn, for the Crown, drawing
    on the analysis of the trial judge and that found in the concurring reasons of
    Ottenbreit J.A. in
Trapp
, at paras. 119-124
    and 134, contends that the police acquired only the appellants name and
    address, information that was readily available to the public and could not
    possibly be viewed as private or confidential by anyone.  Ms. Fairburn further
    submits that the nature of the information obtained by the police from Bell
    Sympatico does not change because, when combined with information the police
    had obtained lawfully from other sources, it connects the appellant to certain
    Internet activity.

[67]

With respect to Ms. Fairburns submissions, delivered with her
customary clarity, her description of the target of the state action
    as the appellants name and address is akin to the suggestion that the air
    around the bag was the target of the search conducted by the sniffer dog in
Kang-Brown
.  That characterization does not describe what the police were really
    after, or what the appellant claims was within his reasonable expectation of
    privacy.

[68]

The police did not want the subscriber information so
    as to be able to identify the appellant as a customer of Bell Sympatico.  That
    fact alone was of no value to the police.  Nor does the appellant contend that
    he has a reasonable expectation of privacy with respect to the fact that he is
    a client of Bell Sympatico.  The police wanted the information because they
    believed it could potentially identify the appellant as the person who had anonymously
    accessed child pornography on three separate occasions over the Internet.  Translated
    into the content neutral language required for the purposes of s. 8, the police
    wanted the information because of what it could potentially tell them about the
    appellants Internet activity on three occasions.  They sought to connect an
    identity to certain activity: see Slane & Austin,
at pp. 500-503
.

[69]

I agree with Mr. Dawe, counsel for the appellant, that
    the reasonable expectation of privacy inquiry must be framed in terms of
    whether the police could access information capable of revealing details about
    the appellants Internet activities. I cannot, however, go so far as Mr. Dawe,
    and counsel for the intervener, who relying on the comments of Cameron J.A. in
Trapp
,
    at paras. 32-37, argue that the information sought by the police would provide
    an electronic roadmap of the appellants travels on the Internet.  That
    description, while consistent with the language used in
Trapp
, at para.
    36, goes beyond the evidentiary record in this case.  Adapting the interveners
    metaphor to the evidence adduced here, I would say that the police sought
    information capable of putting the appellant at a specific place, at a specific
    time in the course of his travels on the Internet.

[70]

The privacy claim advanced by the appellant raises a
    further important point about the scope of the privacy right protected by s. 8. 
    The appellant is arguing that he had a reasonable expectation that he could
    access and use the Internet anonymously and that s. 8 protects him against state
    access to information in the hands of third parties that would allow the state
    to identify the appellants activities on the Internet, unless the state can
    satisfy the reasonableness requirement of s. 8.  The appellant in essence
    claims that his privacy rights under s. 8 protect his anonymity while engaged in
    certain activities, even activities in public venues.

[71]

Personal privacy is about more than secrecy and confidentiality.  Privacy
    is about being left alone by the state and not being liable to be called to
    account for anything and everything one does, says or thinks.  Personal privacy
    protects an individuals ability to function on a day-to-day basis within
    society while enjoying a degree of anonymity that is essential to the individuals
    personal growth and the flourishing of an open and democratic society.

[72]

In
Wise
, at p. 538, the court recognized an individuals
    expectation of privacy while engaged in very public activity.  The court held
    that continual state electronic monitoring of the movements of an individuals
    vehicle on public highways violated that persons reasonable expectation of
    privacy.  I take the court to have held that in Canadian society people can
    reasonably expect that they can move about on public highways without being
    identified and continually monitored by the state.  If the state chooses to
    engage in that kind of invasive conduct, it must be able to meet the
    constitutional requirements of s. 8.
Wise
holds that while the public
    nature of the forum in which an activity occurs will affect the degree of
    privacy reasonably expected, the public nature of the forum does not eliminate
    all privacy claims.

[73]

The concept of privacy underlying
Wise
is described by
    Professor Westin as public privacy:  Alan F. Westin,
Privacy and Freedom
(New York: Athenum, 1967), at p. 32.  He explains the relationship between
    anonymity and personal privacy in these terms, at p. 31:

The third state of privacy, anonymity, occurs when the
    individual is in public places or performing public acts but still seeks, and
    finds, freedom from identification and surveillance.  He may be riding a
    subway, attending a ball game, or walking the streets; he is among people and
    knows that he is being observed; but unless he is a well-known celebrity, he
    does not expect to be personally identified and held to the full rules of
    behaviour and role that would operate if he were known to those observing him.
In this state the individual is able to merge into the
    situational landscape.   Knowledge or fear that one is under systematic
    observation in public places destroys the sense of relaxation and freedom that
    men seek in open spaces and public arenas.
[Emphasis added.]

[74]

I think that s. 8 encompasses the concept of public privacy described
    above.
[1]
Surely, if the state could unilaterally, and without restraint, gather
    information to identify individuals engaged in public activities of interest to
    the state, individual freedom and with it meaningful participation in the
    democratic process would be curtailed.  It is hardly surprising that constant unchecked
    state surveillance of those engaged in public activities is a feature of many
    dystopian novels.

[75]

By going on the website carookee.com, the appellant engaged with others
    in a public forum that was open to literally anyone around the world.  The
    appellant did so, however, anonymously.  Anonymity to some degree at least is
    a feature of much Internet activity:
Warman v. Wilkins-Fournier
, 2010
    ONSC 2126, 100 O.R. (3d) 648, at para. 20 (Div. Ct.).  Depending on the
    totality of the circumstances, his anonymity may enjoy constitutional
    protection under s. 8.

[76]

A purposive approach to s. 8 also dictates that personal privacy claims
    be measured as against the specific state conduct and the purpose for that
    conduct.  Section 8 is not about protecting individual privacy at large or as
    between non-state actors.  Section 8 focuses on personal privacy claims in
    relation to state intrusions said to infringe on that personal privacy:
Gomboc
,
    at para. 34,
Deschamps J., concurring.
Because the
    focus is on state intrusion and the purpose of the intrusion, Canadian
    jurisprudence has emphatically rejected the risk analysis featured in
    American Fourth Amendment jurisprudence:
e.g.
see
R. v. Duarte
,
    [1990] 1 S.C.R. 30, at p. 48;
Wong
, at p. 45.  According to that
    jurisprudence, voluntary disclosure to third parties defeats Fourth Amendment
    claims:
e.g.
see
Smith v. Maryland
, 442 U.S. 735 (1979), at pp.
    743-744;
United States v. Miller
, 425 U.S. 435 (1976), at pp. 442-443;
    and Robert W. Hubbard, Peter DeFreitas & Susan Magotiaux, The Internet 
    Expectations of Privacy in a New Context (2001) 45 Crim. L.Q. 170, at pp. 177-185.
[2]

[77]

Under the Canadian jurisprudence, a person, by allowing others into a
    zone of personal privacy, does not forfeit a claim that the state is excluded
    from that same zone of privacy.  Nor does allowing a state actor within a zone
    of personal privacy for a specified purpose, automatically foreclose a claim of
    privacy as against the state should it enter that same zone of privacy for
    another purpose:
R. v. Colarusso
, [1994] 1 S.C.R. 20, at p. 55;
Law
,
    at paras. 19-22;
Thomson Newspapers Ltd. v. Canada
, [1990] 1 S.C.R.
    425;
Gomboc
, at paras. 100-102, McLachlin C.J.C. and Fish J.,
    dissenting (but not on this point);
R. v. DAmour
(2002), 166 C.C.C.
    (3d) 477 (Ont. C.A.), at para. 57; and
R. v. Cole
, 2011 ONCA 218, 105
    O.R. (3d) 253, at paras. 74-78.  On the purposive interpretation of s. 8, it is
    no answer to the appellants s. 8 claim to assert that because the appellant
    willingly surrendered the relevant information to Bell Sympatico, he assumed
    the risk that Bell Sympatico would share the information with the police.

[78]

In holding that the risk that Bell Sympatico would share the information
    does not necessarily defeat a s. 8 claim, I do not suggest that the
    relationship between the appellant and Bell Sympatico, particularly as it
    related to any agreement concerning the disclosure of information, was not
    relevant to the appellants privacy claim.  I mean only to say that willing
    disclosure to third parties is not determinative of the existence of a legitimate
    privacy claim under s. 8.

(ii)

Section 8 Protects Only Reasonable Expectations of Privacy

[79]

Despite the centrality of personal privacy to the relationship between
    the individual and the state under the Canadian constitution, personal privacy,
    like any other individual right, cannot be absolute in a democratic society. 
    Ones right to be left alone by the state must be balanced against other
    legitimate competing societal interests, including the need to effectively
    investigate crime:
Hunter
, at pp. 159-160;
Tessling
, at
    paras. 17-18.  In
Hunter
, Dickson J. described the balance in these
    terms:

The guarantee of security from unreasonable search and seizure
    only protects a reasonable expectation.  This limitation on the right
    guaranteed by s. 8, whether it is expressed negatively as a freedom from
    unreasonable search and seizure, or positively as an entitlement to a
    reasonable expectation of privacy, indicates that
an
    assessment must be made as to whether in a particular situation the publics
    interest in being left alone by government must give way to the governments
    interest in intruding on the individuals privacy in order to advance its
    goals, notably those of law enforcement.
[Emphasis added.]

[80]

The s. 8 jurisprudence strikes the balance between individual privacy
    and competing state interests by constitutionally protecting only privacy
    claims that are founded on a
reasonable expectation of privacy
and by
    prohibiting only state intrusions upon reasonable expectations of privacy that
    are
unreasonable
:
Tessling
, at paras. 17-18.

[81]

How then is one to determine whether a claimant has a reasonable
    expectation of privacy?  In
Tessling
, at para. 42, Binnie J. observes
    that [e]xpectation of privacy is a normative rather than a descriptive
    standard.

[82]

By normative, I understand Binnie J. to mean that in determining
    whether an individual enjoys a reasonable expectation of privacy, the court is
    making a value judgment more than a finding of fact in the traditional sense.  When
    the court accepts the contention that a person has a reasonable expectation of
    privacy, the court is in reality declaring that the impugned state conduct has
    reached the point at which the values underlying contemporary Canadian society dictate
    that the state must respect the personal privacy of individuals unless it is
    able to constitutionally justify any interference with that personal privacy.

[83]

The normative nature of the reasonable expectation of privacy inquiry has
    been underscored in several pronouncements from the Supreme Court of Canada beginning
    in
Wong
, at pp. 45-46, where La Forest J. described the inquiry in
    these terms:

[W]hether, by the standards of privacy that persons can expect
    to enjoy in a free and democratic society, the agents of the state were bound
    to conform to the requirements of the
Charter
when effecting the
    intrusion in question.

[84]

In
Patrick
, at para. 14, Binnie J. stressed the long-term
    consequences on personal privacy of the impugned state action in assessing the
    privacy claim:

Privacy analysis is laden with value judgments which are made
    from the independent perspective of the reasonable and informed person who is
    concerned about the long-term consequences of government action for the
    protection of privacy.

[85]

Most recently in
Gomboc
, Deschamps J., at para. 34, in her
    concurring reasons, captured the normative nature of the inquiry in these terms:

Thus, the fact that the person claiming an expectation of
    privacy in information ought to have known that the terms governing the
    relationship with the holder of that information allowed disclosure may not be
    determinative.  Rather, the
appropriate question is
    whether the information is the sort that society accepts should remain out of
    the states hands because of what it reveals about the person involved, the
    reason why it was collected, and the circumstances in which it was intended to
    be used
.  [Emphasis added.]

[86]

The courts have approached the reasonable expectation of privacy inquiry
    by asking whether the claimant had a subjective expectation of privacy and, if
    so, whether in all of the circumstances that expectation was reasonable:
e.g.
see
R. v. Edwards
, [1996] 1 S.C.R. 128, at para. 45;
R. v. Nolet
,
    2010 SCC 24, [2010] 1 S.C.R. 851, at para. 30.  While both questions help to focus
    the inquiry on the specific facts of the case and the values underlying s. 8, neither
    question captures the entirety of the reasonable expectation of privacy
    inquiry.  Section 8 is concerned with the degree of privacy needed to maintain
    a free and open society, not necessarily the degree of privacy expected by the
    individual or respected by the state in a given situation.  As Binnie J. put it
    in
R. v. A.M.
, 2008 SCC 19, [2008] 1 S.C.R. 569 at para. 33, s. 8
    protects the privacy interests that:

the citizen subjectively believes
ought
    to be respected

by the government
and that
society is prepared to recognize
as reasonable.... 
    [Emphasis added; citation omitted.]

[87]

The fact that the paranoid target of a search has no expectation of
    privacy cannot negative his s. 8 rights: see
Tessling
, at para. 42.  Nor
    can ubiquitous state intrusions upon privacy render expectations of privacy
    unreasonable for the purposes of s. 8: see
Patrick
, at para. 14.  The ultimate
    question is whether the personal privacy claim advanced in a particular case
    must, upon a review of the totality of the circumstances, be recognized as
    beyond state intrusion absent constitutional justification if Canadian society
    is to remain a free, democratic and open society: see James A. Q. Stringham,
    Reasonable Expectations Reconsidered: A Return to the Search for a Normative
    Core of Section 8? (2005) 23 C.R. (6th) 245.

[88]

As has repeatedly been said, the reasonable expectation of privacy
    inquiry is contextual and looks at the totality of the circumstances:
Edwards
,
    at paras. 31-45;
Tessling
, at paras. 19 & 31; and
Patrick
,
    at para. 26.  Importantly, this contextual examination has no regard to the
    product of the challenged search or seizure.  The inquiry is framed in broad
    and neutral terms:
Wong
, at p. 50; see also
Buhay
, at para.
    19;
Patrick
, at para. 32.  The question is not whether the appellant
    had a reasonable expectation that he could access and possess child pornography
    anonymously. The question is whether the appellant had a reasonable expectation
    that he could anonymously access the Internet on his computer without the state,
    with the cooperation of the appellants ISP, being able to find out what he had
    accessed.

(iii)

The Application of the Principles to this Case

[89]

The appellant presents his privacy claim as informational in nature.  He
    asserts a right to privacy as against the state in certain information held by
    a third party, Bell Sympatico.  The appellant maintains that the right to
    privacy over that information arises because if the information is disclosed to
    the state, the state will be able to identify some of the appellants Internet
    activity and thereby obtain personal information that could reveal intimate
    details about the appellants lifestyle and personal choices: see
Plant
,
    at p. 293.  Given that the information provided to the police by Bell Sympatico
    ultimately revealed the appellant as the person who accessed child pornography
    on three occasions, it is difficult to argue with the contention that the
    information provided by Bell Sympatico had the potential to open doors into
    very private aspects of the appellants lifestyle.

[90]

I agree with the parties that the issue is properly framed in terms of a
    claim to privacy in information.  In so holding, I do not ignore the fact that
    the activity was carried out in the appellants residence thereby potentially
    raising a territorial privacy claim of the highest order.  However, the
    physical location where the Internet activity occurred seems entirely
    incidental to the activity itself.  The appellants privacy claim comes down to
    an assertion of a reasonable expectation of anonymity when on the Internet. 
    The anonymity claim is tied to the nature of the activity, not to the location
    where the activity occurs.  For that reason, this case is distinguishable from
    cases like
Tessling
and
Gomboc
in which the activities
    potentially revealed to the police had a strong physical connection to the
    claimants residence.

[91]

Not only is the appellants privacy claim advanced in relation to
    information, that information was obtained from a third party, Bell Sympatico,
    who had acquired it from the appellant in the course of a commercial
    relationship.  The Supreme Court of Canada has addressed this kind of privacy
    claim in
Plant
,
Tessling
and
Gomboc
.  Those cases
    identify a number of factors relevant to the reasonable expectation of privacy
    inquiry.  I propose to examine the factors that are important in the
    circumstances of this case by addressing three questions:

·

What was the subject matter of the impugned state conduct, that
    is, what were the police after when they asked Bell Sympatico for the
    subscriber information?

·

Did the appellant have a subjective expectation that he could act
    with anonymity, at least with regard to the state, in his Internet activity?

·

If so, was that expectation objectively reasonable?

(a)

The Target of the Police Action

[92]

As discussed earlier, the police were after information that would potentially
    identify the appellant, not merely as a Bell Sympatico subscriber, but a person
    who had engaged in certain activities on three specific occasions on the
    Internet.  The information sought by the police would strip the appellant of
    his Internet anonymity on those three occasions.  This characterization of the
    target of the police action is not in any way altered because the information
    provided by Bell Sympatico would not conclusively identify the appellant as the
    person engaged in those activities.  The information would connect his account
    to those activities and go some distance to identifying him as the person
    involved in those activities.

[93]

Information that has the very real potential to reveal activities of a
    personal and private nature is, in my opinion, information which tends to
    reveal intimate details of the lifestyle and personal choices of the
    individual:
Plant
, at p. 293.  It follows that information that has
    the potential to reveal activities of that kind may be deserving of
    constitutional protection.  The nature of the information does not, however,
    mean that it automatically attracts constitutional protection under s. 8.  The
    totality of the circumstances must be considered.  Where the information has
    been given by the claimant to a third party who in turn provides it to the
    police, the relationship between the claimant and that third party as it
    relates to the information is of critical importance.  I will turn to that
    relationship after addressing the appellants subjective expectation of
    privacy.

(b)

The Subjective Expectation of Privacy

[94]

The trial judge found that the appellant had a subjective expectation of
    privacy in respect of his subscriber information.  When, as in my view it
    should be, the information is characterized as information revealing the
    appellants Internet activity, there can be no doubt that he had a subjective
    expectation of privacy.  The appellant did not reveal his identity when
    accessing the sites and used temporary anonymous email addresses suggesting a
    clear intention to conceal his identity even further.  The Crowns submission
    that the appellant was not fussed about keeping his name and address private
    misses the distinction between identifying the appellant as a Bell Sympatico
    subscriber and identifying the appellants Internet activity.  I think the
    appellant was clearly fussed about keeping his identity private as it related
    to his Internet activities.

(c)

Is the Expectation Objectively Reasonable: The
    Relationship
Between
the Appellant and Bell Sympatico

[95]


The appellant and Bell Sympatico had a
    commercial relationship whereby Bell Sympatico provided a variety of services,
    including Internet access to the appellant for a fee.  Unlike for example a
    doctor-patient relationship, there was nothing inherently confidential in the
    relationship between Bell Sympatico and the appellant.  In the private law
    context, their relationship, including any obligation Bell Sympatico had to
    maintain the confidentiality of information provided by the appellant, was
    governed by the terms of the service agreement between Bell Sympatico and the
    appellant, related documents referred to in the service agreement, and the terms
    of
PIPEDA
.  As
Gomboc
demonstrates, it is necessary to look
    at the controlling contractual and legislative provisions when determining whether
    a person has a reasonable expectation of privacy in information that a third
    party service provider has given to the police.

[96]

To properly describe the relationship between the appellant and Bell
    Sympatico, one must first properly characterize Bell Sympaticos relationship
    with the police insofar as the request for the appellants subscriber
    information is concerned.  On this record, Bell Sympatico was not an agent of
    the police.  Bell Sympatico had information in its possession over which it
    clearly had an interest.  Bell Sympatico was not compelled by any statute to
    provide the information to the police.  It chose to do so when faced with a
    very specific and narrow request and when made aware of the nature of the
    investigation: see
Gomboc
, at para. 42, Deschamps J., concurring
[3]
;
    see also
McNeice
, at paras. 41-45.

[97]

Like any service provider, Bell Sympatico had a legitimate interest in
    preventing the criminal misuse of its services, particularly in circumstances
    where the misuse effectively constituted the
actus reus
of a crime. 
    That interest may be seen as purely a self-interest or, perhaps more
    appropriately, as a form of civic engagement reflecting a corporate
    commitment to assist in law enforcements struggle to rid the Internet of child
    pornography:  see
Gomboc
, at paras. 41-42, Deschamps J., concurring; Slane
    & Austin, at p. 490.

[98]

The normative nature of the reasonable expectation of privacy analysis and
    the value judgments that underlie that analysis require that Bell Sympaticos
    legitimate interests, whether described as self-interest, civic engagement, or
    both, be taken into account in determining whether the appellant had a reasonable
    expectation of privacy in respect of the information held by Bell Sympatico.  A
    reasonable and informed person considering whether society would find it
    reasonable for the appellant to have a reasonable expectation of privacy in his
    subscriber information would take into account Bell Sympaticos legitimate
    interests in voluntarily disclosing that information to the police when that
    disclosure would assist in an investigation of the alleged criminal misuse of
    Bell Sympaticos services, assuming the disclosure was not prohibited and would
    not violate any laws or the terms of applicable customer agreement.

[99]

Bell Sympaticos legitimate interest in disclosing customer information
    to the police finds expression in the terms of
PIPEDA
.  Those terms
    contemplate reasonable disclosure of customers personal information and
    recognize a discretion to disclose personal information to the police in the
    course of an investigation if the prerequisites of the disclosure provision are
    met:
PIPEDA
, ss. 3, 5(3) and 7(3)(c.1)(ii).


[100]

Setting aside the contractual terms for the moment, I think
    the reasonable and informed person identified by Binnie J. in
Patrick
,
    at para. 14, would view a customers reasonable expectation of privacy in his
    or her subscriber information to be circumscribed by the service providers
    discretion to disclose that information to the police where it was both
    reasonable to do so and a
PIPEDA
compliant request for disclosure had been made by the police.

[101]

The requests made in
    this case complied with s. 7(3)(c.1)(ii) of
PIPEDA
.  In considering whether Bell Sympatico acted
    reasonably in disclosing the information, the nature of the information sought is
    relevant.  The police request was specific and narrow.  They sought only the
    clients name and address.  That information in and of itself revealed nothing personal
    about the appellant or his Internet usage.  The request was also narrow in the
    sense that it identified three specific instances of Internet activity.  By
    disclosing the subscriber information to the police, Bell Sympatico would not
    be telling the police anything about the clients Internet activities at any
    time other than three times identified in the requests.

[102]

I think it is also significant
    that the request referred specifically to the investigation of child
    exploitation offences under the
Criminal Code
.  Bell Sympatico was entitled to have regard to the
    nature of the offences being investigated when it decided whether to disclose
    the information.  These offences are obviously serious.  They victimize
    children, a very vulnerable element of the community and one which the
    community, as a whole, has a responsibility to protect.  Further, Bell
    Sympaticos service was an integral and essential component of the offences
    being investigated.  In a very real sense, the power and anonymity of the
    Internet allows these kinds of offences to be committed.  The alleged
    perpetrator had gained access to this powerful and anonymous tool through the
    services provided by Bell Sympatico.  The strong and direct connection between Bell
    Sympaticos services and the commission of the crimes under investigation would,
    in my view, make it all the more reasonable to expect that Bell Sympatico would
    cooperate with the police request for subscriber information.

[103]

In stressing the nature
    of the offence under investigation, I do not fall into the trap of judging the
    appellants privacy expectation by reference to the nature of his activity. 
    The nature of the offence under investigation is relevant to the reasonableness
    of Bell Sympaticos response to the police request.  The nature of the activity
    that would actually be revealed to the police by the information provided by
    Bell Sympatico is not germane to the reasonable expectation of privacy
    inquiry.

[104]

I see some analogy between
    my reliance on
PIPEDA
and the reliance of Abella J. in her concurring reasons in
Gomboc
on the terms of a regulation that allowed the
    utility supplier to provide information to the police absent an express request
    for confidentiality by the client.  As Abella J. did in
Gomboc
, I look to legislation, the constitutionality of
    which is not challenged, and which by its terms speaks to the circumstances in
    which the third party holder of the information may disclose that information
    to the police as informing the degree of privacy that persons ought reasonably to
    expect in our society.

[105]

My analysis of the
    impact of
PIPEDA
on
    the reasonable expectation of privacy inquiry is somewhat at odds with that of Cameron
    J.A. who considered the provincial equivalent to
PIPEDA
in
Trapp
, at paras. 49-54.  I agree with Cameron J.A. that
    the reasonable expectation of privacy inquiry must proceed on the basis that
    the service provider will exercise a meaningful measure of independent and
    informed judgment in deciding whether to make the disclosure requested by the
    police: at para. 55.  However, I am satisfied that having regard to the nature
    of the disclosure requested in this case, and the nature of the crimes being
    investigated, that the reasonable informed person would accept that it was reasonable
    for the ISP to make the disclosure requested.  If disclosure by the ISP was a
    reasonable response to the request then, in these circumstances, the
    appellants privacy claim in the face of the request is not objectively
    reasonable.

[106]

I come finally to the
    contractual terms.  Unlike the provision in
Gomboc
, there is no legislative authority underlying the
    terms of the service agreement between Bell Sympatico and the appellant.  Also,
    the caution sounded by Deschamps J. in
Gomboc
, at para. 33, against reliance on the terms of
    contracts of adhesion when deciding constitutional rights has application here.

[107]

The contractual provisions in this case tend to
    reinforce my reliance on
PIPEDA
as indicative of the nature of the appellants reasonable expectation
    of privacy.  Like
PIPEDA
,
    the contractual terms speak both of Bell Sympaticos duty to protect the
    privacy of clients information and its willingness to disclose information in
    relation to investigations involving the alleged criminal misuse of its
    services.  That willingness clearly qualifies any duty of confidentiality
    assumed by Bell Sympatico.  While there is no single provision in the agreement
    or related documents that spells out Bell Sympaticos willingness to disclose
    information to the police as clearly as did the regulation under consideration
    in
Gomboc
, the overall
    thrust of the documentation is to the same effect.  In particular, the Accepted
    Use Policy (AUP) makes it clear that uploading or downloading child
    pornography is a breach of the AUP and that Bell Sympatico would offer full
    cooperation with law enforcement agencies in connection with any investigation
    arising from a breach of this AUP.  That cooperation would, it seems to me,
    obviously extend to the disclosure of subscriber information which, by the
    terms of the service agreement, could be disclosed if 
[n]ecessary
    to satisfy any laws, regulations or other governmental request ... or as
    necessary ... to protect ... others.

[108]

My
    review of the terms of the service agreement and related documents reinforces
    my view that a reasonable and informed person would not expect that society
    should recognize that the appellant had a reasonable expectation of privacy in
    respect of the subscriber information held by Bell Sympatico.

[109]

I
    stress that the conclusion in this case is based on the specific circumstances
    revealed by this record and is not intended to suggest that disclosure of
    customer information by an ISP can never infringe the customers reasonable
    expectation of privacy.  If, for example, the ISP disclosed more detailed
    information, or made the disclosure in relation to an investigation of an
    offence in which the service was not directly implicated, the reasonable
    expectation of privacy analysis might yield a different result.  Similarly, if
    there was evidence that the police, armed with the subscribers name and
    address, could actually form a detailed picture of the subscribers Internet
    usage, a court might well find that the subscriber had a reasonable expectation
    of privacy.  Those cases will be considered using the totality of the
    circumstances analysis when and if they arise.

issue #2: the adequacy of the
    ito

[110]

The
    appellants second ground of appeal challenges the information to obtain the search
    warrant (ITO) that authorized the search of the appellants residence and
    computer.  Counsel argues that even if all of the material contained in the ITO
    was properly included in that document, it did not provide sufficient grounds
    upon which the warrant could be issued.  Counsel places heavy reliance on
R.
    v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253.  In
Morelli
, the
    court found that a warrant authorizing the search of an individuals computer
    for child pornography ought not to have been issued as it did not provide
    grounds upon which a justice of the peace could reasonably believe that the
    named person possessed child pornography on his computer.

[111]

The
    appellant made a similar argument at trial but did not have the benefit of
Morelli
. 
    The trial judge found that the ITO contained sufficient grounds upon which the
    justice of the peace acting judicially could issue the warrant.  He concluded that
    many of the appellants arguments demonstrated only that the grounds in the ITO
    did not establish that the appellant had committed the offences referred to in
    the ITO.  The trial judge correctly pointed out that the ITO need only provide
    reasonable grounds to believe that evidence relating to the offences would be
    found in the searches.  The appellants ultimate culpability was irrelevant to
    whether the warrant should issue.

[112]

The
    standard of review applicable to this argument is well settled.  The trial
    judge was obliged to determine whether there were grounds upon which the
    issuing justice could grant the warrant.  This court applies the same
    deferential standard:
R. v. Garafoli
, [1990] 2 S.C.R. 1421, at p. 1452.
Morelli
is an example of the application of the well-established
Garafoli
standard of review to the particular facts of that case.
Morelli
breaks no new jurisprudential ground.

[113]

This
    ITO is very different from the ITO found to be deficient in
Morelli
. 
    Most significantly, this ITO provided strong evidence from which it could be
    inferred that someone using the appellants computer at his residence had
    accessed or downloaded child pornography on eight instances, six on June 16,
    2006 and one each on July 2 and 6, 2006.  These allegations, in my view, provided
    a basis upon which the justice could infer that there was a reasonable
    probability that child pornography had been accessed and stored on the computer. 
    Unlike
Morelli
,
the
    police in this case sought the warrant both in respect of the offence of
    accessing child pornography and the offence of possessing child pornography.  In
Morelli
, the police sought a warrant only in respect of the possession
    charge.

[114]

The
    ITO also provided extensive technical evidence to the effect that files
    downloaded by the appellant on the computer could be recovered by police
    technicians even if the appellant had made efforts to delete those files.  This
    evidence offered some basis for an inference that the prohibited material
    remained on the computer long after it was downloaded and could be recovered if
    the police were given access to the computer.

[115]

The
    affiant also provided detailed evidence based on his first-hand experiences
    about the practices of individuals who access and possess child pornography on
    their computers.  He indicated that often these individuals kept images for long
    periods of time and rarely deleted collections.  I see no reason why this
    kind of evidence, rooted in the officers personal experience, could not
    provide some assistance in determining whether the warrant should be granted.  I
    bear in mind that the officers opinion did not stand alone.  There was other
    reliable evidence that this computer had been used to access child pornography
    on three occasions over a three-week period suggesting use of the computer by
    someone with an interest in child pornography.

[116]

The
    technical evidence and the officers opinion evidence provided a basis upon
    which a justice of the peace could reasonably infer that there was a reasonable
    probability that the child pornography that had been accessed on the computer
    some ten months earlier was still on the computer and could be retrieved by the
    police.  That is all that was needed to justify the issuance of the warrant. 
    This ground of appeal fails.


IV



conclusion

[117]

I
    would dismiss the appeal.

RELEASED:
WW  OCT 02 2012

Doherty J.A.

I agree W. Winkler
    C.J.O.

I agree S.T. Goudge
    J.A.





[1]
In
T
essling
, at para. 40, Binnie J. states a
    person can have no reasonable expectation of privacy in what he or she
    knowingly exposes to the public.  In my view, this comment is not directed at
    cases where the person acts anonymously:
s
ee also
Wise
, at p. 558, La Forest J., dissenting
.



[2]
The risk analysis favoured in the American case law would doom
    the appellants argument since the subscriber information was willingly
    disclosed to the appellants ISP:
e.g.
see
U
nited
    States
v. Perrine
, 518
    F. 3d 1196
(10th Cir. 1998)
, at
pp.
1204-
120
5;
U
nited
    States
v. Bynum
, 604
    F. 3d 161
(4th Cir. 2010)
, at
p.
164.

Recently, in
United States v. Jones
, 565 U.S. ___
    (2012), Sotomayor J., in a concurring opinion, suggested that the risk analysis
    approach was ill suited to the digital age in which people reveal a great deal
    of information about themselves to third parties in the course of carrying out
    mundane tasks.  She opined that it may be time to reconsider the courts
    approach to privacy claims under the Fourth Amendment.



[3]
The dissent in
Gomboc
views the utility company as having
    been conscripted to assist the police.  This conclusion seems to be based on
    the utility companys installation, at the request of the police, of a special
    device used to generate, record and disclose the relevant information.  Here,
    Bell Sympatico did nothing other than provide information from its
database
.


