Monday, June 09, 2014

Supreme Court to release warrantless ISP disclosure decision on Friday

The Supreme Court of Canada has just announced that it will release its decision in R. v. Spencer on Friday. For those concerned with "lawful access" and warrantless disclosure of telco customer information, this will be a biggie.

Here's the summary of the case ....

SCC Cases (Lexum) - Judgments to be Rendered in Appeals:

34644 Matthew David Spencer v. Her Majesty the Queen

Canadian Charter of Rights and Freedoms - Search and seizure - Whether the Court of Appeal erred in concluding that there was no reasonable expectation of privacy in the information attached to an IP address - If the appellant’s rights under s. 8 of the Charter were breached, whether the evidence gathered upon the execution of the search warrant should be excluded pursuant to s. 24(2) of the Charter - Whether the Court of Appeal erred in overturning the trial judge’s decision according to which the appellant did not have the requisite mens rea to commit the offence of making available child pornography, on the basis that the trial judge failed to consider the question of wilful blindness on the part of the appellant - Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(3).

The appellant downloaded child pornography from the Internet using a peer-to-peer file-sharing software program that connects users over the Internet. He stored child pornography in his shared folder and did not override the software’s default settings that made his shared folder accessible to other users from which they could obtain downloads of his files. A police officer searched his folder and discovered the pornographic files. The officer could not identify the owner of the folder but did determine that the Internet Protocol address being used by the owner of the folder had been assigned by Shaw Communications. The police wrote to Shaw and requested information identifying the assignee at the relevant time. Shaw identified the appellant’s sister. The police obtained a warrant and searched her residence, where they seized the respondent’s computer. The appellant was charged with possession of child pornography and making child pornography available.

Origin of the case: Saskatchewan

File No.: 34644

Judgment of the Court of Appeal: November 25, 2011


Aaron A. Fox, Q.C. and Darren K. Kraushaar for the appellant

Anthony B. Gerein for the respondent

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