How far police should be allowed to go in surveilling Canadians’ online activities is the subject Canadian civil liberties watchdogs are asking the Supreme Court of Canada to decide.
“If the police are given free rein to patrol these virtual spaces with disguised identities, anyone who signs in to one of these websites — regardless of where they are in the world — may be communicating with an undercover officer,” BC Civil Liberties Association (BCCLA) said in court documents “The chilling effect on privacy rights and fundamental freedoms would be dramatic.”
The association said the court’s decision “will have profound consequences for privacy and expressive freedom.”
The case under appeal involves the alleged entrapment of an Ontario man convicted of engaging what he believed were underage girls online for sex.
What didn’t know at the time was that he was communicating with a police officer posing as an underage girl.
York Regional Police posted fake advertisements in the “escorts” section of a classifieds website. When individuals responded, an undercover officer posing as an escort would disclose in the ensuing text chat that “she” was underage.
Those who arranged sexual services and a price were directed to a hotel room to complete the transaction. They are arrested and charged on their arrival.
Ramelson was convicted of three offences.
After several court cases, it was decided there was entrapment, resulting in the case heading to Canada’s high court.
Now, that court is being asked to decide the proper analysis to be applied in determining whether a virtual space is properly defined to meet the standard of a bona fide police inquiry.
The BCCLA said the case is, in part, about how deeply Canadians are willing to allow the state to surreptitiously intrude into online spaces.
The association said privacy and expression rights of many are impacted when police target online space.
“Where individuals fear that there is an undercover officer hiding behind every username, surveilling their virtual activities, they will be much more guarded in sharing their thoughts with their digital community,” the association said.
What that means for police surveillance is that police must be targeting a specific space and not motivated by an improper purpose (such as racial profiling), the association said.
Police must have a clear connection between the criminal activity for which there is reasonable suspicion and the criminal activity targeted, added the association.
“The fact that the police may have reasonable suspicion that communication for the purchase of adult sexual services is occurring does not give them a licence to offer opportunities for the much more serious offences of child luring or communicating for the purposes of purchasing underage sexual services,” the BCCLA said.
The association argues the right to privacy is the right to be left alone, the right to go about one’s business without risk of being subject to clandestine state investigatory techniques.
“This right is central to concepts of liberty and democracy,” the association argues. “It is especially significant in the virtual world, where individuals have come to expect a degree of anonymity as they gather online in large numbers, unconstrained by geography and physical capacity.”
Online spaces are increasingly becoming places where people find a sense of community, share similar worldviews, religious beliefs, cultural practices or life experiences, regardless of geographic location, according to the BCCLA.
The watchdog said the targeted space shouldn’t be overly broad and that it should be an individual and not the space or location that is targeted. Such investigations disproportionately impact people guilty of no offence, the group said.
“In these appeals, it is significant that ‘a considerable majority’ of the people who were impacted by the police investigative technique had no interest or involvement in seeking the services of an underage sex worker,” the association said.
