Manitoba Court of Appeal Demands a Detailed Demonstration Before Divulging Digital Data

Security concept: blue opened padlock on digital background

The Manitoba Court of Appeal recently published its decision in ANCR v Shaw Communications Inc. in late September. In this case, Interpol Manchester United Kingdom had delivered information to the Winnipeg Police Service about a convicted sex offender who had possibly communicated with a Winnipeg child via Skype back in 2012. It is important to emphasize the word possibly; we will come back to this. The Winnipeg Police passed this information forward to the Child and Family All Nations Coordinated Response Network (ANCR), who then proceeded to conduct their statutorily mandated investigation in to the matter. To do so, they sought to obtain digital forensic records from Shaw Communications Inc. relating to the alleged contact. Shaw refused to provide the information without a court order.

The Court opened its ruling by posing the question of “how should we balance the desire to eliminate the horrors of child pornography and child luring with the need to protect our privacy in this expanding digital age?” Indeed, similar questions surrounding digital privacy rights seem to constantly present themselves. How much liberty should society be willing to sacrifice for the security of our most vulnerable?

“How should we balance the desire to eliminate the horrors of child pornography and child luring with the need to protect our privacy in this expanding digital age?”

There are two important things to take away from the Court’s decision. Importantly, the Court found that ANCR had the jurisdiction to require that persons or groups give it any information necessary that related to a child welfare investigation. In the event of someone failing to cooperate, it was within their ability to seek a court injunction to either enforce cooperation or declare somebody in contempt.

The second takeaway is what ultimately decided the case. The Court also found that choosing to enforce cooperation with ANCR’s investigations was a matter of judicial discretion that depended on the situation. Despite the mandate of ANCR to investigate matters of child welfare, their powers are still limited by the Canadian Charter of Rights and Freedoms. The modern expectation of internet privacy was thus an important balancing force in ANCR’s mandate. In particular, Section 8 of the Charter states that:

“8. Everyone has the right to be secure against unreasonable search or seizure.”

The Court reviewed the particular facts of this case, and highlighted several important factors that called in to question as to whether the requested information was actually of any use to the investigation. Notably, in the 2012 Skype chat with the sex offender, the Winnipeg user claimed to be 14. Assuming the claim was true, it is thus likely the person in question is now an adult no longer in need of any protection. Likewise, ANCR was not attempting to obtain subscriber information from the 2012 Skype chat, but instead from later activity of the Skype account that occurred in 2015 under a different IP address. It was unclear to the Court if this was because the 2012 information had since been deleted and was no longer available. Ultimately, ANCR did not successfully demonstrate how the requested information would further their investigation.

Although in this particular case internet privacy proved more important than child security, this was ultimately due to the fact that the information requested could not be demonstrated to be of any value to ANCR’s investigation. The Court was still very clear in stating that “protecting children from potential harm is an important social objective … However, even given the important social purpose served by child protection legislation, the duty to investigate upon suspicion cannot be unlimited.” In a more pressing and convincing situation concerning the safety of a child, the Court may very well have decided differently.

“Protecting children from potential harm is an important social objective … However, even given the important social purpose served by child protection legislation, the duty to investigate upon suspicion cannot be unlimited.”

 

This blog post was written by a CCLA-PBSC RightsWatch student. Opinions expressed do not necessarily reflect the views of the CCLA or PBSC.

About the Author

Ryan Poirier
Ryan Poirier holds a Bachelor of Arts from the University of Manitoba with a double major in both Political Studies and Economics. He has continued his education there and is now attending his first year of law school. Ryan has volunteered with political groups in the past and has a broad interest in the law, but finds criminal justice particularly interesting.