Privacy and Civic Duty in R v Ward: The Right to Online Anonymity and the Charter Compliant Scope of Voluntary Cooperation with Police Requests

Abstract

R v Ward was the third recent Canadian appellate court decision on warrantless police access to internet customer names and addresses. All three cases involved unsuccessful claims under section 8 of the Charter. Ward’s claim failed because the cooperation by his internet service provider (ISP) with police was held to be reasonable, defeating the reasonableness of his expectation of privacy.

In an era marked by increasing pressure on private actors to participate in law enforcement, the stakes are high for the future of online privacy protection under the Charter. The author argues that the Ontario Court of Appeal’s approach in Ward, while promising, must be further developed in order to protect the democratic values at the heart of section 8. Ward deserves credit for allowing private actors to consider both their customers’ privacy and their own interests in assisting law enforcement. The Court of Appeal’s analysis of the triangular relationship between police, defendant and ISP set principled limits on a private actor’s ability to negate a defendant’s reasonable expectation of privacy by cooperating with the police.

However, the analysis of the reasonableness of the ISP’s actions was based on a specific legislative standard. It could not fully reflect section 8’s normative values, because that standard is contingent on the legislation and is not universally applicable. To remedy this problem, the author proposes a free-standing reasonableness obligation for third parties. While Ward appeared to endorse this concept, it did not go far enough. An explicit free-standing obligation would ensure that private actors’ discretion in cooperating with police investigations will be evaluated on the privacy standards we expect in a democratic society.

Keywords: privacy, anonymity, cooperation, police, online