Privacy interests in Canadian criminal law are an important aspect of the constitutional rights of individuals. Privacy interests can be understood as the reasonable expectations of privacy that a person has in a given situation, such as in their home, their personal communications, or their bodily integrity. Privacy interests are protected by section 8 of the Canadian Charter of Rights and Freedoms, which states that everyone has the right to be secure against unreasonable search or seizure. The Supreme Court of Canada has developed a framework for determining whether a search or seizure is reasonable, based on the balance between the state’s interest in law enforcement and the individual’s interest in privacy. The court has also recognized that privacy interests may vary depending on the context, such as the nature of the information, the location, and the manner of obtaining it.
Recently, in R. v. Bykovets the Supreme Court of Canada considered whether an internet user has a reasonable expectation of privacy in their internet protocol (IP) address. An IP address is a unique number that identifies an internet-connected device and enables the transfer of information online.
The case arose from a police investigation into fraudulent online purchases from a liquor store. The police contacted the third-party payment processing company that managed the store’s online sales and obtained the IP addresses used for the purchases without a warrant. The police then obtained a production order to compel the internet service provider to disclose the name and address of the customer for each IP address. One of them was registered to Mr. Bykovets, who was arrested and charged with various offences.
Mr. Bykovets challenged the police’s request to obtain the IP addresses from the payment processing company, alleging it violated his right against unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms. Section 8 protects privacy, including informational privacy. To establish a violation of section 8, Mr. Bykovets had to show that he had a reasonable expectation of privacy in his IP address and that the police’s request was a search.
The trial judge held that Mr. Bykovets did not have a reasonable expectation of privacy in his IP address because it did not reveal any personal information about him or his online activities. The trial judge also held that the police’s request was not a search because it did not intrude on Mr. Bykovets’ privacy interests. The Court of Appeal of Alberta upheld the trial judge’s decision.
The Supreme Court of Canada allowed Mr. Bykovets’ appeal in a 5-4 split. The majority, written by Justice Karakatsanis, held that Mr. Bykovets had a reasonable expectation of privacy in his IP address because it was capable of revealing intimate details about his identity, location, and online behaviour. The majority also held that the police’s request was a search because it invaded Mr. Bykovets’ privacy interests by obtaining information that he had shared with a third party in confidence. The majority concluded that the search was unreasonable because it was done without prior judicial authorization or any legal authority.
The dissenting judges, led by Justice Côté, disagreed with the majority’s analysis and would have dismissed Mr. Bykovets’ appeal. The dissenting judges held that Mr. Bykovets did not have a reasonable expectation of privacy in his IP address because it was not personal information but rather a functional tool to access the internet. The dissenting judges also held that the police’s request was not a search because it did not reveal anything about Mr. Bykovets’ private life or expose him to any risk of harm.
The decision in R. v. Bykovets has significant implications for internet privacy and police investigations in Canada. It clarifies the legal framework for determining when an internet user has a reasonable expectation of privacy in their online information and when the state needs a warrant to access it.
If you have been charged with a criminal offence in Saskatchewan where your privacy interests are at stake, please reach out to one of our trusted criminal lawyers at our Regina office.