n a 5-4 decision in R. v. Bykovets, the Supreme Court of Canada ruled that police must get a warrant before accessing IP addresses during an investigation.
The decision builds on the court’s 2014 decision in Spencer that ruled that information attaching itself to an IP address has a reasonable expectation of privacy. This now extends to the IP address itself.
Kyla Lee, a lawyer with Acumen Law Corporation in Vancouver and chair of the CBA’s criminal justice section, admits surprise at the outcome because IP addresses have attracted little privacy interest in the past.
“They gave a really good description of why we have privacy rights, and how they have to be viewed by the courts, that is going to inform a lot of section 8 and privacy-related applications in the future,” Lee says, pointing to the court’s comment about how once breached, privacy rights cannot be restored.
…
Lee appreciates this view of privacy, and hopes it will be good for the defence bar.
Lee suggests that there could be a delay in completing trials due to the need for additional voir dires and scheduling them on specific issues. “These trials involving digital evidence are necessarily going to necessarily take a little bit longer because of these additional challenges,” she says. “But this probably also means that maybe fewer cases are going to come before the courts.”
