R. v. Spencer: anonymity, the rule of law, and the shrivelling of the biographical core.

• Author: Hunt, Chris D.L.
• Position: Canada

The Supreme Court of Canada's recent decision in R. v. Spencer is likely to become a landmark decision on informational privacy. Spencer addressed the issue of whether an Internet user charged with possession and distribution of child pornography had a Charter-protected privacy interest in his Internet subscriber information. A unanimous Supreme Court answered this question in the affirmative, primarily because such information could lead to the identification of a user carrying out intimate or sensitive activities in circumstances where the user would believe that his or her activities would be earned out anonymously. The immediate practical consequence of Spencer is that police will henceforth be required to obtain prior judicial authorization before requesting a person's Internet subscriber information--a holding that squarely contradicts a number of recent appellate court decisions. In this comment, the authors argue that Spencer is likely to have a significant, and possibly transformative, impact on section 8 jurisprudence. In their view, the Court's recognition of "anonymity" as an independent value underlying section 8 of the Charter leads to a more robust account of privacy--an account that is more consistent with theoretical approaches to the concept. The authors argue that the recognition of a right to anonymity may also serve to support the rule of law by refocusing the section 8 analysis on unwanted scrutiny by the state. In addition, an emphasis on the right to anonymity may lead to a diminished role for the analytical device known as the "biographical core". The authors conclude their comment with a discussion of the Court's decision to admit the impugned evidence under section 24(2) of the Charter, arguing that the Court placed too much emphasis on the legal uncertainty surrounding the search.

Le jugement recent de la Cour supreme du Canada dans R. c. Spencer s'annonce en tant que decision historique en ce qui a trait au caractere prive des renseignements personnels. La Cour devait. decider si un internaute reconnu coupable de possession et de distribution de pornographie juvenile jouissait neanmoins d'un interet en matiere de vie privee protege par la Charte concernant ses renseignements d'abonne aux services Internet. C'est d'une seule voix que la Cour supreme a repondu par l'affirmative, principalement parce que de tels renseignements permettent d'identifier un utilisateur s'adonnant a des activites intimes ou confidentielles alors que ce dernier croit agir sous le couvert de l'anonymat. Il s'ensuit que les policiers auront dorenavant a obtenir une autorisation judiciaire avant de recueillir les renseignements d'abonne aux services internet d'un individu--une decision qui contredit ouvertement plusieurs jugements recemment rendus par differentes cours d'appel canadiennes. Dans cette etude, les auteurs soutiennent que Spencer aura probablement un impact significatif, et possiblement transformateur, sur la jurisprudence relative a l'article 8. A leur avis, la reconnaissance par la Cour de > comme valeur independante soustendant l'article 8 de la Charte entraine une notion plus robuste de la vie privee--plus coherentes avec la doctrine de l'article 8. Les auteurs soutiennent que la reconnaissance d'un droit a l'anonymat pourrait egalement servir a epauler la primaute du droit en recentrant l'analyse de l'article 8 sur les surveillances indesirables de l'Etat. En outre, une insistance sur le droit a l'anonymat pourrait entrainer un role attenue du dispositif analytique des >. Les auteurs concluent leur commentaire en discutant de la decision de la Cour d'admettre la preuve contestee en vertu de l'article 24(2) de la Charte. Ils soutiennent notamment que la Cour a donne trop d'importance a l'incertitude juridique liee a la fouille.

Introduction I. The Background and Facts II. The Supreme Court of Canada's Decision III. Critical Reflections on R. v. Spencer A. Anonymity: A Neglected Dimension of Section 8 B. Anonymity and the Rule of La w C. Anonymity mid the Shrivelling Biographical Core IV. The Relevance of Legal Uncertainty to the Exclusion of Evidence Conclusion Introduction

The Supreme Court of Canada's recent decision in R. v. Spencer (1) is likely to become a landmark decision on informational privacy. Spencer addressed the thorny question of whether an Internet user has a constitutionally protected privacy interest in Internet subscriber information. The unanimous Court answered this question in the affirmative, primarily on the basis that such information could lead to the "identification of a user with intimate or sensitive activities being carried out online" in circumstances where the user would believe that his or her "activities would be anonymous." (2)

Viewed narrowly, the Court's decision in Spencer could be read as little more than an incremental extension of a recent trend favouring a broad and purposive approach to section 8 of the Charter (3) in the context of modern information storage techniques. (4) The immediate practical consequence of Spencer is that police will henceforth be required to obtain prior judicial authorization before requesting a person's Internet subscriber information--a holding that squarely contradicts three recent appellate courts that came to the opposite conclusion. (5) But what of Spencer's importance for section 8 of the Charter more generally? In our view, a close reading of Spencer signals a more fundamental shift in analysis and arguably portends a significant departure from recent case law.

In this comment, we argue that Spencer is likely to have a significant, and possibly transformative, impact on section 8 jurisprudence. Spencer marks the first occasion that the Supreme Court has recognized an independent normative role for the concept of anonymity when deciding whether an individual has a constitutionally protected privacy interest. Although scholars have frequently defined the concept of privacy with reference to anonymity, the Supreme Court's pre-Spencer jurisprudence had not done so, preferring instead to focus its analysis on the concepts of confidentiality and control of information when deciding whether section 8 was engaged.

We argue that the Court's recognition of anonymity, as a normative value protected by section 8 of the Charter, is significant in at least three respects. First, the recognition of anonymity as an independent value leads to a more conceptually robust account of privacy. Much of the leading scholarship treats anonymity as one of the irreducible elements of privacy. The right to anonymity is, for instance, invoked in support of the right to be free from unjustifiably intrusive forms of state surveillance. Arguably, the section 8 jurisprudence to date has been impoverished by the Court's failure to give independent normative force to anonymity as an important aspect of privacy--a shortcoming Spencer undeniably overcomes.

The Court's recognition of anonymity is significant for a second and related reason: it may go some distance in answering those observers who have criticized the Court for neglecting the rule of law in developing its section 8 jurisprudence. Scholars such as Lisa Austin have argued that courts have focused too much on the content of information when assessing privacy claims, and have paid insufficient attention to the importance of preserving the rule of law. (6) Although anonymity and the rule of law are distinct concepts, they share a common concern about ensuring that individuals are free from unregulated state scrutiny. By recognizing anonymity as a discrete aspect of privacy, the Court's decision in Spencer may have positive implications for the relationship between privacy and the rule of law, and portends an important and principled amplification of the protection already afforded by section 8 of the Charter.

A third, and arguably no less significant, reason that Spencer is important is that it signals a more limited role for the analytical device known as the '"biographical core" in the section 8 analysis. The biographical core refers to the notion that a Charter-protected interest in information will be more or less likely to be recognized depending on whether the information itself can be characterized as intimate or capable of revealing inferences about personal lifestyle choices. Over the years, the jurisprudential fortunes of the biographical core have waxed and waned, leading to uncertainty about both its precise meaning and its importance in determining whether section 8 is engaged. In Spencer, the biographical core barely received passing mention--and this notwithstanding the fact that it was virtually determinative of the issues in the lower courts. We argue below that this lack of engagement by the Court serves to minimize the concept's overall importance in the section 8 analysis, and conclude that this, coupled with the recognition of anonymity as a constitutionally protected aspect of privacy, may sound the death knell for the biographical core. In short, post-Spencer, the quality of the information is no longer the central focus of section 8; rather, or at least equally, it is the individual's interest in being free from unwanted scrutiny that determines whether a Charter-protected privacy interest is engaged.

The comment concludes with a brief discussion of the Court's analysis of section 24(2) of the Charter. In keeping with a number of recent decisions, (7) the Court, having found a Charter violation, declined to exclude the evidence. The Court noted that the law was uncertain and that, in this instance, the investigating officers reasonably believed that they were acting lawfully. In our view, the Court's conclusion on section 24(2) represents an overly permissive attitude toward the Charter violation in issue. The jurisprudence increasingly suggests that investigators may assume that they have free license to perform warrantless searches unless and until a...