Digital Privacy and Drug Decriminalization Litigation in BC

 

Understand the groundbreaking shift in digital privacy through an engaging conversation with Michael Mulligan of Mulligan Defence Lawyers as we dissect a recent Supreme Court of Canada judgment. The verdict is reshaping how we perceive privacy concerning our IP addresses, which, as it turns out, are windows into our personal lives and not just innocuous identifiers. Michael walks us through the complexities of a case that has set a new standard: law enforcement agencies must now secure a warrant before obtaining IP data. This discussion is a must-hear for anyone eager to grasp the profound implications for our constitutional rights in this digital age.

Venture into the heated debate over British Columbia’s approach to drug possession decriminalization with a critical eye on the Restricting Public Consumption of Illegal Substances Act. We dissect the political chess game involving the provincial government’s legislation, the backlash from harm reduction advocates, and the subsequent legal scuffles that led to an interim injunction. The episode paints a vivid picture of the tug-of-war between law enforcement, public health, and community well-being, highlighting the ongoing struggle and its wider implications for drug policy in the region. Stay tuned for a detailed analysis of these pressing issues, informed by the latest legal developments and social dynamics.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.

 

Legally Speaking Mar 8, 2024

 

Adam Stirling [00:00:00] It is time for Legally Speaking with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Morning, Michael. How are we doing?

Michael T. Mulligan [00:00:07] Hey. Good morning. I am doing great. Always good to be here.

Adam Stirling [00:00:09] So interesting stories on the agenda this week, including an expectation of privacy with respect to an IP address. How does the law work with that?

Michael T. Mulligan [00:00:18] Well, we have had some significant clarity from the Supreme Court of Canada in terms of how the law is going to work, at least going forward with respect to IP addresses. And by way of a little bit of background, an IP address would be like an address assigned to a computer or cell phone or other device that’s connected to the internet.

Adam Stirling [00:00:38] hmm.

Michael T. Mulligan [00:00:39] It would it is not quite like a phone number, but it would be used to route information to and from a particular device. Right. That is how the packets of information would wind up, when you request something at your computer and not mine.

Adam Stirling [00:00:54] Yeah.

Michael T. Mulligan [00:00:56] And the particular case from the Supreme Court of Canada dealt with the issue of whether people have a reasonable expectation of privacy with respect to their IP address. And the reason that is an important question, is that it’s the starting point for an assessment as to whether somebody has a constitutional right to privacy with respect to that information. Everyone has under the charter, section eight. You have a right to be free from unreasonable search and seizure. And in some cases, that’s kind of obvious what that might mean. Like, if the police don’t have a warrant and they kick your door in and rummage through your bedroom drawers and find some something illegal.

Adam Stirling [00:01:39] Yeah.

Michael T. Mulligan [00:01:39] That would be pretty clearly a breach of your reasonable expectation of privacy. You have the expectation of privacy in your bedroom. And that is what would require the police or the state to obtain a search warrant before conducting that kind of a search. And the issue for the Supreme Court of Canada was, do you have a reasonable expectation of privacy with respect to your IP address? And it is clear that your expectation of privacy extends to more than simply a physical place.

Adam Stirling [00:02:10] mm hmm.

Michael T. Mulligan [00:02:11] So, for example, let’s say the police decided they wanted to read all of your hospital records. And they went in and managed to get them without obtaining prior judicial authorization to do that. That pretty clearly would be a breach of your reasonable expectation of privacy. Right. And so, that could have an impact on whether that evidence could be used against you in a trial.

Adam Stirling [00:02:33] mm hmm.

Michael T. Mulligan [00:02:33] And this case of the fact pattern involved, an investigation into fraudulent online purchases from a liquor store. That is what the police were investigating.

Adam Stirling [00:02:42] Yeah.

Michael T. Mulligan [00:02:42] And to do that investigation, they started by not getting a warrant or any, authorization from a judge and just contacted the, processing company, the credit card processing company, and said, look, we would like your records as to the IP addresses used, for these transactions. And the company obliged and turned those over to the police. And once the police have that IP address information to know okay, which IP address was used to make this purchase? They were then able to make further inquiries to connect that to the accused. And so that’s, and at trial the lawyer for the accused said, hey, there was no warrant obtained for this. My client has a right to privacy with respect to that information and the police should have gotten a search warrant, to get that information from the processing company. The trial judge and the Court of Appeal heard the case. Both disagreed. They said no, you don’t have any expectation of privacy with respect to that information. And so that’s when that is what went to the Supreme Court of Canada. And the majority of the Supreme Court of Canada started by pointing out this said, look, “the internet has shifted much of human experience from physical spaces to cyberspace. It is grown to encompass public squares, libraries, markets, banks, theatres, concert halls and become the most expansive cultural artefact or species was ever created.” Right. So obviously some understanding there.

Adam Stirling [00:04:13] Yeah.

Michael T. Mulligan [00:04:13] About just how important and central the internet is to everyone’s life. And then the other thing, which was significant in the court’s analysis of this was a recognition and I think it’s a correct one, that sometimes information about, for example, an IP address is more than what it seems, because on one level you might say, well, who cares about these numbers assigned to you, by your internet service provider? What does that matter? How would you have an expectation of privacy about.

Adam Stirling [00:04:41] Yes.

Michael T. Mulligan [00:04:42] But as the majority found, the majority found. It reveals much more than that. Because with that information, you can make inquiries to find out all sorts of things about what a person might be doing, what books reordering, what websites, where you’re going to, what political information, where you’re reading about. It would reveal all kinds of, potentially very private information, if the government can simply, without a warrant or any authorization, just find out that information because it allows for those other things to be revealed. And we see that happening sometimes in the background by private companies. Right. You wind up with things like, why am I getting, you know, a bunch of, you know, searched for baby clothes and suddenly I’m getting a bunch of ads for infant formula from a whole bunch of people. What’s going on here? How does Amazon and Walmart know what I’m thinking? And that is an example of the sort of, insight you could get into somebody’s private activity with that information and so on that with that background and that analysis, the Supreme Court of Canada found that you do indeed, have an expectation of privacy with respect to, your IP address. And the court found that as a result of that conclusion, it’s going to remove discretion from private companies about whether they’re going to turn that information over to the government, without obtaining a warrant. And what it will mean in the future is if the police or some other government agency wants to get information about what IP addresses were used to do something or other. That could be anything from, you know, a criminal investigation to, you know, maybe somebody wants to find out who’s engaged in some controversial political activity. For example, you can imagine all sorts of reasons why the government might want to know, you know, who’s involved in the trucker protest or what websites are they going to, or what else are they doing or doing?

Adam Stirling [00:06:40] Yes.

Michael T. Mulligan [00:06:41] The going forward, this means that there’s going to be judicial oversight over obtaining that kind of information. It’s going to be treated in the same way as if the government wants to, or the police or some other region of government wants to go and read through your medical files, or other information, that a person would have a reasonable basis to think, hey, that’s going to be kept private. It’s kind of shocking that the police could be thumbing through that without some oversight and approval.

Adam Stirling [00:07:10] Yeah.

Michael T. Mulligan [00:07:11] And the court pointed out that, you know, this isn’t some completely onerous requirement. We’re now in the age where, for example, police can apply for a warrant remotely. They call it a tell a warrant.

Adam Stirling [00:07:26] yeah.

Michael T. Mulligan [00:07:26] And it means that. Look, you can do this, you can get this information. And if you have a legitimate need for it, and you can establish to the satisfaction of a judge or another judicial official that, there’s a reason, this IP address information ought to be turned over to you. You can get approval to do that, and you can conduct your legitimate investigation. But, yeah, we are at an end, to the idea that that sort of information can be just obtained, on request, leaving it up to whatever large internet company might be out there in terms of whether they wish to turn that over to the government. And so, it’s a very important decision. And even if you didn’t know what, your IP address was before we started talking about it, the essence of the decision is that there is going to be some further scrutiny over obtaining information that allows, would allow, the police to track what you’re doing online. And so, I think that’s a positive development. And the development, which is in keeping with the opening insight from the Supreme Court of Canada about just how significant the internet has become, and why it is a person would have, an expectation of privacy, with respect to information that could be used to track what they’re doing. And if the government wants to get into that, they’re going to need to satisfy a judge that there’s a reason to do that.

Adam Stirling [00:08:47] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking we’ll continue in just a moment on CFAX 1070.

[00:08:54] COMMERCIAL.

Adam Stirling [00:08:54] We continue with Legally Speaking, with Michael Mulligan, with Mulligan Defence Lawyers. IP address privacy. Up next, law in politics and the province failing in an attempt to appeal an interim injunction in a matter you and I have discussed before. Michael. What’s happening?

Michael T. Mulligan [00:09:11] Yes, we have. And so, this is the dealing with what the province is so entitled, the Restricting Public Consumption of Illegal Substances Act, which is really a bit of a misnomer as we’ve talked about previously. It should really be called the Restricting Public Consumption of Illegal Substances Act if asked individually by the police first act. The background here, I think, is required to understand why that is, what exactly is going on and what just happened. So, the background of all of this, as the Court of Appeal judge that heard this application for leave to appeal set out, is that the province, of course, has been dealing with a public health emergency with respect to drugs. The provincial government asked the federal government for an exemption, under the control drugs and. Substances Act, in order to effectively decriminalize possession of drugs that would otherwise be illegal. The federal government obliged the provincial government’s request and granted that exemption in B.C. for a three-year period starting January of 2023 and runs to January 31st, 2026. After that was done there was obviously, not obviously, there was an increase in social disorder. The federal government responded in part by excluding some places from that exemption. They excluded schools, childcare facilities, playgrounds, spraying, weeding pools, skate parks and so forth. And so that’s what’s happened. The provincial government then, passed that act that we just talked about, this restricting Public Consumption of Illegal Substances Act, which purports to say, don’t use drugs in various other places like beaches and parks and sports fields. Now, the underlying problem with the legislation is that it’s improbable, but the underlying essence of this legislation is it’s intended to really do nothing other than make a political statement. And that’s apparent when you read it because the act doesn’t, in fact, prohibit anyone from using anything, anywhere sports fields, beaches, parks, or anywhere else, unless the police first show up, ask you to stop doing that, and you refuse. Only in that circumstance could you be issued a ticket or commit an offence. The police specifically said that the Offence Act does not apply to this piece of legislation. So, the legislation, if it ever comes into effect, would be sort of like the legislation that would prohibit smoking in a restaurant. But what it would mean then would be like saying you cannot smoke in a restaurant, for example, but nothing can happen to you if you do, unless the police first show up at the restaurant, ask you to stop smoking, and you individually refuse the request to stop smoking, then you could get a ticket. That’s what this act would amount to. Despite that obvious feckless nature of that piece of legislation, it’s been challenged constitutionally, by the Harm Reduction Nurses Association, arguing that there would be, irreparable and arguing there would be harm if people can’t use drugs in all of those, places that are listed, even when the police show up and say, stop that. And so, there was this application for an interim injunction to stop the legislation coming into effect until there could be a hearing about whether it’s constitutional or not. And the Nurses Association was successful in getting that interim injunction, in part because even though the chief judge, hearing the case, concluded that, yes, you have to assume that legislation is for some useful public purpose. There really wasn’t much you could point to in terms of, well, what, what harm is going to befall, the province or the public if the police or don’t have the authority to show up and say individually, please stop doing that. And then if a person refuses, issuing them a ticket. And so, because the test for an interim injunction starts with that, sort of is there some sort of a balancing of convenience and whether there’s irreparable harm. There was an interim injunction put in place so the province couldn’t start trying to implement this legislation. What’s happened since then, is the provincial government, you know, Premier Eby and others.

Adam Stirling [00:13:34] mm hmm.

Michael T. Mulligan [00:13:35] Have been effectively now pointing to that decision. They’re saying that’s why there’s this social disorder. It’s not us. If only we could bring in this act, this would all be cleared up. So, they’ve used it as an opportunity to try to shift blame for the negative external consequences of their decision to decriminalize drugs without treatment facilities or adequate treatment facilities. They’re now clearly trying to, blame the, court decision for that, those problems and without the background that we’ve just talked about, you know, if you don’t carefully look at, well, what was this legislation or what did in fact have done anything, people might be persuaded that that so, and so having had that decision, the province decided to ask for permission to appeal that interim order, the one that stops the legislation from coming into effect until they have the argument in court about it.

Adam Stirling [00:14:32] mm hmm.

Michael T. Mulligan [00:14:32] But you can’t just appeal something because you don’t like it to the Court of Appeal for this kind of what’s called an interim order. It’s not like the final decision in the case. It’s just sort of a temporary thing while the case is being decided. You need to get permission from a judge of the Court of Appeal to be allowed to do that, because the Court of Appeal doesn’t want to be plugged up, with appeals running in parallel before the case is even finished. Right.

Adam Stirling [00:14:58] Yep.

Michael T. Mulligan [00:14:58] You’re not going to appeal the result. They’re just saying we don’t want this interim thing happening. And so, the province went to the Court of Appeal and asked for that permission to appeal it, and they were refused permission to appeal it. And the reason for that, there’s a well-established test about, you know, what is in the public interest. When should the Court of Appeal agree to hear one of these interim appeals? They can appeal about just a temporary order before the case is finished.

Adam Stirling [00:15:26] Yeah.

Michael T. Mulligan [00:15:27] And one of the important things that, the Court of Appeal judge found in terms of just saying no, you can’t do this, is an assessment of whether it’s just a good use of resources, because, of course, the case hasn’t been argued. We don’t have a final decision on it. It doesn’t make sense to launch this kind of parallel process in the Court of Appeal, arguing about the interim thing when you haven’t just gotten on with dealing with the case on its merits. And the Court of Appeal judge that refused the province leave to appeal pointed out a few things, including the fact that, the province had not even filed, complete pleadings like they haven’t responded to the claims setting out why they see the claim shouldn’t succeed. Found that the province had not filed evidence in the court below, but what they say would be the harm of not allowing this piece of law on the face of it, useless legislation to come into effect.

Adam Stirling [00:16:24] hmm.

Michael T. Mulligan [00:16:25] And so found that having given them the approval to appeal this thing would just be a waste of time, right. You just create a bunch of unnecessary processes. And so, it essentially told them, no, get on with it. Go back and argue your case. And so, that’s what’s going on. That’s why the province was told no. And another thing to point out is that this was not going to be this interim decision is not going to be something that goes to the Supreme Court of Canada, no matter how, unhappy the province might be about it. The court would be going to the Supreme Court of Canada, Supreme court of Canada has legislation setting out what kind of appeals it can hear. It also needs to give approval. It can hear appeals about final decisions. It doesn’t hear appeals about interim orders. And you would need to satisfy the Court of Appeals, Supreme Court of Canada, leaving aside that problem, that this was somehow some matter of national importance, that is to say, the temporary order stopping this while the hearings being held and there’s virtually zero chance of that happening. And so, what’s happened now is it’s back to the Supreme Court, B.C. Supreme Court, to now have the argument about the merits of this constitutional claim. But listen very carefully to the discourse about this and how the province is speaking about it.

Adam Stirling [00:17:52] yeah.

Michael T. Mulligan [00:17:53] Particularly in the context where, as the Court of Appeal pointed out here, the province was not seeking to expedite the hearing of the appeal, had not filed evidence, about why they see there’s some harm that would befall, the public if this piece of legislation didn’t come into effect. They haven’t even filed their pleadings at the time that that application was made or at the time this application for leave to appeal was heard.

Adam Stirling [00:18:16] Interesting.

Michael T. Mulligan [00:18:16] And so it has the distinct impression that there’s some…

Adam Stirling [00:18:22] perhaps….

Michael T. Mulligan [00:18:22] to allow the province to say it’s the court’s fault. Don’t blame us. All would be fine if we were just allowed to bring into effect this piece of legislation that would allow police to go and ask people individually to stop using drugs at the beach, for example. And so, you just have to think about that yourself. I think, is that really going to solve what’s going on? No, but that’s what’s happening. That’s who’s asked for it. That’s the current state of the litigation.

Adam Stirling [00:18:49] And we have, just over four minutes left, bill seven for 2024, the Social Development and Poverty Reduction Statutes Amendment Act.

Michael T. Mulligan [00:19:00] That just rolls off the tongue, doesn’t it?

Adam Stirling [00:19:02] Doesn’t it.

Michael T. Mulligan [00:19:03] So holy smokes. There’s I think the minister was on CFAX, talking about this, just the other day.

Adam Stirling [00:19:11] Yeah.

Michael T. Mulligan [00:19:11] And this is a, this amendment act that, long word salad, does a number of things. One of them is to amend the Poverty Reduction Strategy Act, which I’m sure people have never heard of before. But who could not be in favour of reducing poverty and having a strategy that seems like a good idea. And that’s an active for a while, and it involves an obligation on the minister responsible to come up with strategies to reduce poverty. Sort of odd that you have any legislation at all saying that that would ordinarily be the sort of thing you would have a mandate letter written to a minister to get on with this.

Adam Stirling [00:19:46] Yes.

Michael T. Mulligan [00:19:46] But nonetheless, we have this and this particular section that I noted when I was reading through the legislation sets out, what the minister must consider, which groups the minister must consider, when deciding on strategy about poverty. And it’s quite remarkable. And it’s remarkable to me in the context of the fact that one of the universal values we used to seem to have was sort of an idea of equality, that sort of settled in section 15 of the Charter, treating people equally irrespective of, you know, various personal characteristics. There is an exception to that of the charter which allows for affirmative action programs. And so that is why this list is quite remarkable. And I want you to think carefully about it and think, who’s missing from this list? And who’s missing from this list, I thought tied in, well, with some of the public controversy that’s been swirling around Google’s latest effort, at artificial intelligence. And they’ve got in some hot water because for, whatever reason they might have, they, released an AI which would refuse to publish any picture of a white person. Basically.

[00:21:01] I saw that in some case, it’s odd?

Michael T. Mulligan [00:21:03] Yeah. People would put in a request for things like draw a picture of Nazi soldiers from the Second World War, and it would produce pictures of, like, Asian women and black men dressed up in Nazi uniforms.

Adam Stirling [00:21:15] Yeah.

Michael T. Mulligan [00:21:16] Or other examples where there just wouldn’t be what’s expected. But here’s what we have in 2024 legislation. Here are the groups. And just think what is not included, which group might be missing here. So here is what the minister must consider. According to this legislation: “children and young adults, women, first Nations meeting and any white people, black persons, persons of colour, persons whose gender identity or expression is not cisgender, persons living with disabilities, persons living in rural and remote communities, immigrants, refugees, 2SLGBTQiA+ persons, seniors, persons and families working and earning low incomes, persons receiving social assistance, persons with experience of abuse and trauma, persons living with mental illness or addiction in any prescribed group.” So just think about that for a moment. What has been included in that group? The only group that might that is not included in the list here would appear to be white men living in an urban environment that are not immigrants, not refugees, are, not cisgender.

Adam Stirling [00:22:25] hmm.

Michael T. Mulligan [00:22:26] And, do not have a disability. And they’re not in a remote place, and they’re not young and they’re not old. And so, it’s just a remarkable thing that in 2024, that is what how legislation is drafted. And we’ve moved a very long way from what would be contemplated by, for example, section 15 of the Charter in terms of treating people equally without regard to various listed factors or like race, national or ethnic origin, colour, religion and so forth.

Adam Stirling [00:22:54] Yes.

Michael T. Mulligan [00:22:54] And we’ve moved to a place where the legislation is now drafted. It’s drafted to specifically require consideration of all of the listed groups, which is reported, which would be probably permissible under the affirmative action exception to that equality requirement. But that’s where we move to in 2024. And I just thought that was a remarkable thing in terms of how that’s being addressed and how that relates to that other recent story about what we’re doing in the interest of trying to ameliorate legitimate, concerns. But what does that effectively amount to? So that’s the amendment to the legislation, requiring the minister to consider a poverty reduction strategy. And that is what they are required to consider if this passes.

Adam Stirling [00:23:45] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking, during the second half of our second hour every Thursday. Thanks, as always.

Michael T. Mulligan [00:23:51] Thank you so much. Have a great day.

Adam Stirling [00:23:52] You too. Bye now.

Automatically Transcribed on March 11, 2024 – MULLIGAN DEFENCE LAWYERS