Recently police were heard to be complaining about the Supreme Court’s 2014 decision in R. v. Spencer. I couldn’t help responding as follows, all of which is property of and was originally posted at AdvocateDaily.com
A Supreme Court ruling that put an end to law enforcement agencies being able to informally ask Internet Service Providers (ISPs) for subscriber information doesn’t prohibit police work, but sets minimum standards that police must follow, says Toronto criminal lawyer Graham Clark.
“This is to preserve the privacy of all individuals and to protect our fundamental freedoms as Canadians,” he tells AdvocateDaily.com.
Clark makes the comments as CBC News reports that police officers assigned to fight child pornography say the Supreme Court’s decision in R. v. Spencer, 2014 SCC 43,  S.C.R. 212, is hampering their ability to track down pedophiles and child sex abusers.
In a landmark decision in June 2014, the high court ruled that police must first obtain a production order or warrant from a judge. This stopped the practice of law enforcement requests to ISPs, including Rogers, Bell and Shaw, for subscriber information and made it necessary for officers to file paperwork that police say has sharply reduced the number of cases that can be pursued, says the public broadcaster.
In 2013, there were 1,038 informal requests sent to ISPs by the National Child Exploitation Co-ordination Centre, an RCMP-run agency in Ottawa that is a hub for police forces across Canada investigating Internet-based child sexual abuse, says the article.
“In the last six months of 2014, following the Supreme Court decision, the centre filed just 56 of these jurisdictional requests, indicating a sharp drop in the cases the RCMP are able to develop and a much thinner flow of investigative information about child sexual predators on the web,” says the CBC.
“On an operational level, the Spencer ruling and the broader ISP response are having an ongoing impact on law enforcement and criminal investigations,” says an internal RCMP report, obtained by CBC News under the Access to Information Act.
But Clark says if what police are saying is the SCC ruling has meant that they can no longer obtain private information they used to routinely access, the lawyer questions whether law enforcement agencies were regularly accessing private information that a judge wouldn’t have sanctioned and would now be contrary to the law.
He says the police issues are all a matter of perspective.
“Without any information about those requests to ISPs that police made prior to Spencer, it’s difficult to know whether any of those were frivolous requests based on insufficient grounds and intruded heavily into the privacy of a number of individuals,” he says.
“And if all that was done by police and no charges were laid, it is unlikely that the police conduct in question would ever be scrutinized.”
The high court’s decision to uphold Internet users’ privacy unless law enforcement can justify why they should access this information is a good thing and provides some accountability, says Clark.
And while the RCMP’s concerns about Spencer make good headlines, he says they are merely “grist for political rhetoric about the courts frustrating police doing their jobs.”