Mr. Ward's 'Unreasonable' Expectation Of Privacy Towards Data Held By His ISP

Is the anonymity of the Internet user unconditionally protected by the Canadian Charter of Rights and Freedoms' legal strongbox? In R. v. Ward, 2012 ONCA 660, the Court of Appeal for Ontario determined that it is not always the case and that there are limits to an Internet users' reasonable expectation of privacy.

In this case, Mr. Ward's expectation of privacy in his name and address held by his Internet Service Provider (ISP) was considered "unreasonable" in the context of an investigation for crimes of possession and trafficking of child pornography.

The RCMP's Information Request

The police, in the course of investigating child pornography crimes on the Internet, sometimes request and receive the names and addresses of customers from ISPs. These requests typically follow a protocol developed by the police and ISPs, and are made without seeking prior judicial authorization.

Here, the RCMP made such a request to Ward's ISP. More specifically, the police asked the ISP for the name and address of the customer associated with specific IP addresses that were used at specific times, on specific dates. Ward's ISP chose to cooperate. The information provided by the ISP, combined with other information gathered during the investigation, enabled the RCMP to obtain a search warrant for Ward's residence and computer. That search yielded over 30,000 images and 373 videos of child pornography.

Conviction by Trial Judge

The trial judge of the Court of Justice of Ontario determined that the police obtained information from Ward's ISP without violating his right to be secure against unreasonable search or seizure, as enshrined in section 8 of the Canadian Charter of Rights and Freedom(Charter). The trial judge thus admitted the evidence and Ward was convicted.

Measuring the Reasonable Expectation of Privacy

In order to decide whether Ward's constitutional right to be secure against unreasonable search or seizure was violated, the Court of Appeal had to determine if he had a reasonable expectation of privacy in respect of his subscriber information held by his ISP by considering the "totality of the circumstances".

More specifically, the Court examined three questions:

"What was the subject matter of the impugned state conduct, that is, what were the police after when they asked Bell for the subscriber information?"; "Did Mr. Ward have a subjective expectation that he could act with anonymity, at least with regard to the state, in his Internet activity?"...