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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

For full contact information and a brief bio, please see David's profile.

Please note that I am only able to provide legal advice to clients. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser cannot be considered to be solicitor-client privileged.

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The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Wednesday, April 02, 2008

Atlantic Canadian RCMP say search warrants are a time consuming hurdle 

The Royal Canadian Mounted Police in Atlantic Canada are complaining that the two major internet service providers in the region are requiring that police get a warrant before handing over customer information. The ISPs are of the view (correctly in my opinion) that the Personal Information Protection and Electronic Documents Act prevents them from disclosing subscriber information without a warrant.

CBC: Search warrants for child porn too slow, say RCMP

Child pornography investigations in Atlantic Canada are being held up by internet service providers who require search warrants before providing customer information, say RCMP.

In some parts of Canada, internet service providers will hand over information such as the name, address and phone number of a customer being investigated by police.

Const. Blair Ross, who works on child pornography cases on P.E.I., told CBC News Tuesday RCMP are short-staffed already, and getting a search warrant can take days or even weeks.

"As it stands here now in Atlantic Canada, the internet providers will not provide that unless we obtain judicial authorization, in other words, a warrant," said Ross.

"So before we even begin to investigate we have that hurdle to jump over, which is time consuming."

Protecting customer privacy

But the region's two main internet companies say they are concerned about customer privacy, and particularly legislation they are required to operate under. Both Aliant and Eastlink say if someone is in imminent danger the company will provide its customers' information right away, but most of the time police must have a warrant. Eastlink spokeswoman Paula Sibley said her company is aware some other Canadian ISPs require only a letter of request from police.

"We're not necessarily opposed to seeing things move in that direction," said Sibley.

"However, with the existing legislation that's in place, and also privacy legislation that we have to operate under, we've chosen to continue to ask for a warrant." Ross said RCMP could spend more time finding people involved with child pornography if ISPs provided information more quickly.

Then there's also the issue of the Canadian Charter of Rights and Freedoms, which at least in a recent case from Ontario, prevents law enforcement from using the information if it was obtained without a warrant. (See yesterday's post: Canadian Privacy Law Blog: Ontario Court considers warrantless requests for subscriber information.)

From my understanding of how child exploitation and child pornography investigations are usually carried out, the first contact with a suspected offender yields more than enough information to get a warrant. In R. v. Kwok (referred to in Ontario Court considers warrantless requests for subscriber information), the defendant sent the police officer photos that were clearly child pornography. There was no suggestion that the defendant was currently abusing a child, so no exigent circumstances existed. Had a warrant been sought, I have no doubt it would have been issued in that case. That information would probably have been enough to secure the ultimate conviction of the offender.

I have a serious concern with the following statement:

"So before we even begin to investigate we have that hurdle to jump over, which is time consuming."

To begin with, the Charter is not a "hurdle". It's there for a reason and that reason isn't to make life more convenient for agents of the state to get into people's personal information. And secondly, this suggests the police are looking for personal information before they begin an investigation. I appreciate the importance of investigations of this type, but it seems they should always have reasonable grounds to believe an offence has taken place and that the information they are seeking will lead to the identity of the offender before seeking personal information. The alternative is an unacceptable fishing expedition.

Note: The above are my own opinions and not those of any organization I may be associated with or represent.

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4/02/2008 08:49:00 AM  :: (1 comments)  ::  Backlinks
I couldn't agree with you more. It seems ludicrous to me that law enforcement would even think that a story like this might get them sympathy. It seems that more and more we hear from police about how their jobs need to be made easier and supporters constantly telling us if we did nothing wrong we have nothing to fear. To me that is no different then me staring at you through your windows and telling you as long as you do nothing wrong it shouldn't bother you. Well it does bother me and there is a long list of falsely accused and convicted in this country who were put in prison by lazy police and shoddy techniques.
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