TURNING BREADCRUMBS INTO DIALOGUE

AN INSTITUTIONAL JUSTIFICATION FOR R V BYKOVETS

Abstract

The Supreme Court of Canada concluded in R v Spencer that individuals maintain a reasonable expectation of privacy in their internet service provider (ISP) subscriber information. Ten years later, the Court in R v Bykovets built upon this ratio by concluding that state access to an accused’s internet protocol (IP) address—a step preceding any application to produce ISP subscriber information—also attracts a reasonable expectation of privacy. While ISP subscriber information necessarily reveals online activity, the majority held that an IP address itself attracts a reasonable expectation of privacy despite private information only being revealable if further investigative steps were taken. A narrow dissent concluded that the reasonable expectation of privacy inquiry should take its hue from the ability of the precise information sought to reveal inherently private information. As IP addresses themselves only reveal the name of the issuing ISP, no reasonable expectation of privacy could arise from obtaining an IP address from a third party. Given the force of this objection, it is prudent to consider whether a different justification—based on the appropriate relationship between courts and legislatures when crafting criminal procedure rules—can provide an alternative defence of the majority’s conclusion. While institutional considerations bolster the majority’s decision, I also maintain that Parliament should respond to Bykovets and Spencer with narrowly tailored laws permitting limited access to IP addresses and ISP subscriber information on administrative demand.