It’s been a recurring theme around Ottawa for the past few months: the Conservative government butting heads with the Supreme Court of Canada. So palpable is the tension between the elected politicians on Parliament Hill and the country’s top judges, installed a few blocks west of them down Wellington Street, that there’s a tendency to read every ruling handed down by the court as a direct challenge to Prime Minister Stephen Harper. And so it was last week, when the court issued a landmark decision requiring police to obtain search warrants before they can gain access to information on individuals’ online activities from telecom companies that provide Internet service. The ruling was instantly interpreted as undermining some already controversial parts of the government’s proposed new law to combat cyberbullying.
There’s no question that the legislation, called Bill C-13, must be scrutinized in light of the court’s decision. At issue is the degree to which Canadians have a right to online anonymity. What’s not clear, though, according to lawyers who specialize in privacy issues, is exactly how the act might have to be changed, if at all, to bring it in line with what the judges found. Their unanimous decision requiring police to get a warrant to track what somebody does on the Internet came in the case of Matthew David Spencer, a Saskatchewan man who was convicted of possession of child pornography after police flagged illegal files downloaded to his computer’s address. If Bill C-13 had tried to give police investigating online bullying a way to seek that same sort of data without first asking a judge or justice of the peace for a warrant, lawyers agree it would never survive after the Spencer ruling.
But the federal cyberbullying bill doesn’t quite do that. Instead, the government proposes that when it comes to looking at “transmission data”—for instance, who a person has emailed but not the content of those emails—police should need to show only that they have “reasonable grounds for suspicion” to qualify for a warrant. That’s a less stringent standard than the “reasonable grounds for belief” that police must show in some other cases, such as when they want to search a house. Toronto lawyer Jill Presser, who represented the Criminal Lawyers’ Association in the Spencer case, says the difference between an officer suspecting and believing might not sound like much, but it means a great deal in a judge’s chambers. Reasonable belief, she says, must be based on a credible weighing of probabilities. “The officer’s own hunch isn’t going to satisfy the standard,” Presser says. “It can’t be, ‘I got that old tingle.’ ”
Still, even the less demanding requirement in Bill C-13, for an officer show a reason to suspect, provides for at least some oversight. In the Spencer case, the court was grappling with the fact that telecom companies were acquiescing to hundreds of thousands of requests every year from police by turning over transmission records, often called “metadata,” with no warrants at all. David Fraser, a Halifax lawyer who specializes in Internet, technology and privacy cases, says that since Bill C-13 doesn’t provide for warrantless access, the Spencer decision doesn’t necessarily invalidate it. On a deeper level, however, he sees a clash. “The philosophy that underlies the Supreme Court of Canada’s decision is significantly at odds with the privacy philosophy of the current government,” Fraser says.
The government’s stance, he says, has been that extending police powers for the Internet age is merely updating the rule book to take account of technological change. Since police now need only to show reasonable suspicion to get a warrant to see what telephone numbers a person has called, and how long those calls lasted, the government argues that same standard should apply to seeing an individual’s online transmission records. But Fraser says the court has now made clear that what Canadians do online potentially reveals much more than their phone records, which means the lower threshold for a warrant set in Bill C-13 is “not appropriate in light of the Supreme Court’s decision.” Presser frames the court’s findings this way: “Canadians have a reasonable expectation of privacy in their online movements.”
Yet she agrees that the Spencer ruling’s impact on Bill C-13 is not obvious. “The standard for the metadata warrant, whether it’s reasonable belief or reasonable suspicion, is an issue that a lot of lawyers are debating hotly right now,” she says. “That point might well be litigated in the future.” While Justice Minister Peter MacKay has been guarded about whether he sees any need to change Bill C-13, he hasn’t ruled it out. “We’ve been clear all along that any disclosure of information will be done in accordance with the law,” said Paloma Aguilar, MacKay’s press secretary. “The [court’s] decision has clarified the law in this area. We will review this decision and respect the ruling.”
Almost forgotten in all this is the main point of Bill C-13: making it illegal to distribute an intimate image of a person without their consent. On combatting that very different way that privacy can be violated online, along with decency, there’s a lot less argument.