Protecting One’s Right To Public Privacy Against Modern Recording Technologies: The Possible Criminal Law Implications of Alberta v Local 401

On November 15, 2013, the Supreme Court of Canada (“SCC”) released its ruling in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, [2013] 3 SCR 733 [Local 401]. The Court unanimously held that Alberta’s Personal Information Protection Act,  SA 2003 c P-6.5 [PIPA] infringed the right to freedom of expression guaranteed by section 2(b) of the Charter and could not be justified under section 1.

The decision has potential to radically alter the scope of criminal and constitutional litigation involving “digital crimes.” This article attempts to underscore the key points of the decision as they may impact upon future criminal cases and explain how the concept of “public privacy” may bear upon them in particular.

Summary of the Case

Last year Anvish Nanda wrote a piece on TheCourt.ca about the facts, procedural history and disposition of the case. As such, I will review only the most salient aspects here.

In 2006, during a lawful strike, the United Food and Commercial Workers, Local 401, videotaped and photographed individuals crossing its picket line near the main entrance to a casino in Edmonton. It did this with the express intent of possibly placing these images and videos on a website called www.casinoscabs.ca.

Some individuals who knew they had been recorded in this manner filed complaints with the Alberta Information and Privacy Commissioner. No recordings were ever placed on the website (Local 401, para 5). The commissioner nevertheless concluded that the Union collected, used, and disclosed personal information about individuals without their consent with the intent of dissuading people from crossing the picket line.

Public Privacy In a Digital Era

The SCC’s decision underscored the importance of an individual’s right to privacy. The Court noted that the ability of individuals to control their personal information is “intimately connected to their individual autonomy, dignity and privacy” (para 19). These are “fundamental values that lie at the heart of a democracy” (para 19).

Moreover, these values and objectives are “increasingly significant in the modern context, where new technologies give organizations an almost unlimited capacity to collect personal information, analyze it, use it and communicate it to others for their own purpose” (para 20). Simply by appearing in public, “an individual does not automatically forfeit his or her interest in retaining control over the personal information which is thereby exposed” (para 27). This recognition is all the more important given “developments in technology that make it possible for personal information to be recorded with ease, distributed to an almost infinite audience, and stored indefinitely” (para 27).

The Court’s concern about “new technologies,” which make the recording and distribution of personal information so simple and ubiquitous, should transcend the narrow confines of the labour dispute in question. It is now commonplace for a variety of crimes to occur via electronic means. Police investigative techniques have similarly kept pace with modern technological developments. Many unsuspecting persons discover far too late that their “anonymous” online activity was in fact monitored by police cyber-squads.

Indeed, balancing the state use of evolving recording methods against the need to protect individual privacy rights has been the subject of several prior landmark decisions.

In R v Duarte, [1990] 1 SCR 30, an undercover officer electronically recorded a conversation with a suspect engaged in drug trafficking. The suspect did not realize he was being recorded and did not consent to the recording. The SCC held this was a violation of section 8 of the Charter. Parliament responded by enacting section 184.2 of the Criminal Code, RSC 1985 c C-46 which required prior judicial authorization in cases of state “one-party consent” recordings.

In R v Wong, [1990] 3 SCR 36, the SCC also recognized that one does not forfeit a claim to a reasonable expectation of privacy vis-à-vis the state, simply because one allows other persons into a zone of personal privacy. The RCMP installed a video camera without prior judicial authorization and monitored and recorded activities in a hotel room registered to Mr. Wong during an investigation into a possible gaming house. The Court found that the surreptitious video surveillance by the police of the hotel room without prior judicial authorization infringed section 8 of the Charter.

As stated by La Forest J., the “degree of privacy reasonably expected in a free society would be seriously diminished by unrestricted video surveillance by agents of the state.” Parliament yet again responded by enacting the “general warrant” provisions of the Criminal Code now found in section 487.01.

Two years later in R v Wise, [1992] 1 SCR 527, the SCC further recognized an individual’s expectation of privacy while engaged in public activity. The Court held that continual state electronic monitoring of the movements of a suspect’s vehicle on public highways violated that person’s rights under section 8 of the Charter. Parliament responded by enacting the “tracking warrant” provision found in section 492.1 of the Criminal Code.

Recently, this jurisprudence has further evolved as the Courts have begun to grapple with these principles in the online context. For example, in R v Ward, 2012 ONCA 660 [Ward], which addressed the lawfulness of an online investigative technique into persons suspected of downloading and sharing child pornography files over the internet, the Ontario Court of Appeal clarified 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” (Ward, para 72). Rather, anonymity, “to some degree at least,” remains a feature of much Internet activity, and may, depending on the totality of the circumstances, still retain constitutional protection (para 75).

Possible Future Implications of Local 401

The SCC’s powerful and unequivocal statements in Local 401 should weigh heavily on future cases where the Crown attempts to argue that appearing in an online (or other public) forum diminishes one’s reasonable privacy expectations. The Court’s further warning that the values underlying the need for privacy protection are “increasingly significant in the modern context,” given the “almost unlimited capacity” of new technologies to collect, analyze and transmit personal information, suggests a willingness on behalf of the Court to update and revitalize our constitutional protections for a digital era.

The Court’s first opportunity to do so will come when it renders its judgment in the appeal of R v Spencer, 2011 SKCA 144 later this year. The primary issue before the Court was whether or not one maintains a reasonable expectation of privacy in anonymous online activities. Spencer was alleged to have downloaded child pornography online, and the police obtained his subscriber information from his Internet Service Provider without a warrant. The Saskatchewan Court of Appeal ruled against his claim that his privacy rights under section 8 of the Charter had been violated.

If the SCC builds upon its prior jurisprudence and its recent decision in Local 401, it could very well breathe new life into the privacy rights of those engaged in online activities, and state emphatically that Canadians’ expectations of those rights should not be curtailed simply by virtue of the public nature of the internet.

As the Ontario Court of Appeal noted in Ward, decisions about privacy rights under section 8 of the Charter are really value judgments. Whether or not the values underlying contemporary Canadian society call for such a sweeping determination in the context of anonymous online activity, or something more restrained, has yet to be clearly answered. Local 401 suggests the Supreme Court may finally be ready to make such a historic determination.

Brock Jones is Crown Counsel, Crown Law Criminal (MAG – Ontario) and Adjunct Professor, Faculty of Law, University of Toronto. The views expressed in this article are his alone and do not reflect those of the Ministry of the Attorney General (Ontario) nor Crown Law Criminal.