The Court of Appeal for Ontario released an important privacy-related decision 9 Aug. that confirms the judiciary's belief that society's use of, and reliance on, technology like smart phones, tablets and laptops attracts a very high expectation of privacy.
In 2020, two separate and unrelated travelers entered Canada. Based on subjective beliefs rather than objective reasonable suspicion, border officers asked the travelers to provide access to the numerous technological gadgets they were carrying. Both men were charged with possessing and importing explicit images of children.
The court decided the standard used was not strong enough for impeding on the extremely high expectation of privacy we have for our devices — even at the border.
Its decision states, "While sincerity is a good start, it is just not enough. Our Charter requires more because Canada's border control interests temper but do not eliminate or gut its protections. A reasonable search in this context requires a reasonable suspicion, meaning objective facts that establish a reasonable possibility that officers will find evidence of border law violations on the device."
In analyzing why it was easy for these judges to conclude people have an extremely high expectation of privacy for these devices, they said, "Millions of Canadians travel internationally each year with their personal computers, tablets, and smartphones. The contents of these devices attract some of the strongest privacy interests known to law because they are a window into their users' lifestyles, beliefs, interests, desires, relationships, finances, health, and much more."
Now, just because the Charter rights of the accused were violated did not mean they received automatic acquittals. In fact, the conviction at the trial of one traveler was upheld, and the acquittal of the other accused was remanded back to the trial judge for a new trial. A good result, in my view, considering the heinous crimes they were charged with.
But the privacy-related aspect of the case comes on the heels of other recent cases, even from the Supreme Court of Canada, which consistently conclude our extensive use and reliance on technology in today's society requires the law to evolve and recognize that this new way of living contains, in many respects, objective expectations of privacy.
I'm about to start teaching again in the fall. I've now got yet another case to discuss. There are so many now, I may need to add an extra class or two.
Have a good weekend, and make sure to enjoy every last bit of the summer while you can.
Kris Klein, CIPP/C, CIPM, FIP, is the managing director, Canada, for the IAPP.