In United States v. Jones<\/em>,[1]<\/sup><\/a> Justice Alito observed that \u201c[i]n the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical.\u201d[2]<\/sup><\/a> Given the limited resources of government, storing mass amounts of data or conducting regular surveillance of everyday activities was not economically feasible. With the onset of the digital age, this reality was thoroughly undermined.[3]<\/sup><\/a> Both government and corporate entities now frequently employ rapidly advancing and complex technologies, which permit the gathering and storing of incredible amounts of information about individuals.[4]<\/sup><\/a><\/p>\n This novel legal terrain has given rise to a general debate in the American literature about whether courts or legislatures are institutionally better equipped to meet the challenges presented by technological advancement.[5]<\/a> Courts have been shown to have two main weaknesses. First, the rapid evolution of digital technologies often results in judges rendering outdated decisions.[6]<\/a> Second, because of the \u201cunusually complex\u201d nature of digital technologies, judges operating within the adversarial system often receive inadequate evidence upon which to develop principled rules.[7]<\/a> This is unsurprising since there is no guarantee that the parties to a proceeding have sufficient technological knowledge or resources to explain the intricacies of a complex technology.[8]<\/sup><\/a> Legislatures are arguably better equipped to respond given their greater informational capacity and ability to pass laws expediently.[9]<\/a><\/p>\n Others counter, however, that in practice legislatures are often unable or unwilling to update \u201cobviously flawed and outdated provisions.\u201d[10]<\/a> These difficulties are explained by identifying structural impediments to passing legislation, as well as special interest influence on legislatures, including majoritarian influence stemming from a dislike of criminal suspects.[11]<\/a> Even though judges tend to craft broad rules to give future courts flexibility in assessing novel circumstances, judicial rule-making at least allows for the incremental, evolutionary development of policy in response to changing technological and social circumstances.[12]<\/sup><\/a> As a result, these scholars argue that courts are better suited to govern privacy interests in complex search technologies.[13]<\/sup><\/a><\/p>\n The Canadian literature has identified similar problems with respect to judicial governance of digital technologies.[14]<\/a> Unfortunately, however, only a limited amount of scholarship has explored Canada\u2019s legislative ability to create laws governing digital devices.[15]<\/a> These authors conclude that Parliament has risen to the challenge of governing privacy in the digital age.[16]<\/a> Their conclusions, however, derive from Parliament\u2019s first few legislative responses to complex technological issues that arose from litigation under section 8 of the Charter<\/em>.[17]<\/a> As more difficult problems have arisen since these initial legislative reactions, more sustained study of parliamentary capacity to address the unique challenges of governing digital privacy is necessary.<\/p>\n As I conclude below, the initial academic optimism about Parliament\u2019s abilities in this regard was unwarranted. Parliament often passes digital privacy laws that are broad and indeterminate, leaving it to the courts to develop a framework for governing digital privacy intrusions. Where Parliament enacts laws tailored to address a narrow aspect of digital privacy, these laws often become stagnant, lead to incoherent results, or both. As courts are struggling to create informed rules within the adversarial framework, either legislatures must take a much more active role, or they must provide courts with better tools to decide issues relating to complex technologies. I contend that the latter approach is preferable since Parliament\u2019s institutional constraints will likely continue to prevent it from legislating quickly and coherently in response to the use of new and complex technologies. Instead, I maintain that courts and Parliament should work together to ensure judicial development of the law is expedient, coherent, and even-handed.<\/p>\n This article is divided into three parts. In Part I, I outline my methodology for exploring the institutional capacity of legislatures to govern digital privacy as opposed to courts. In Part II, I analyze Parliament\u2019s legislation governing complex and rapidly shifting technologies, asking whether this legislation responds quickly and coherently to technological change, and without undue influence. I conclude that Parliament suffers from many of the same weaknesses attributed to Congress in the American literature, although to varying degrees. Part III closes by using the article\u2019s findings to develop a normative framework for governing digital privacy. Contrary to much of the literature on institutional choice, I maintain that Canadian courts should play a significant role with respect to governing digital technologies, at least in the context of criminal procedure.<\/p>\n The term \u201cdigital technology\u201d refers to electronic tools, systems, or devices that generate, store, or process data. Although my study primarily focuses on Parliament\u2019s legislative responses to digital technologies, other complex and rapidly developing technologies raise similar governance concerns and, therefore, are also appropriate objects of study.[18]<\/a> As I explain in Part II, Parliament\u2019s legislative responses to these types of technologies have been enacted piecemeal over the last several decades. This time period provides ample opportunity to test parliamentary capacity to respond to digital privacy concerns.<\/p>\n In my review of the statutes, I seek to answer three main questions. First, I inquire as to whether Parliament has reacted quickly to developments in digital technologies. As noted above, this is one of the main weaknesses of allowing courts to create rules with respect to digital technologies. Judges operating within the adversarial system can only address technological issues when criminals or police have used new technologies in a legally relevant way.[19]<\/a> Even after a technology is considered by a court, the appeals process will delay confirmation of any rule rendered at trial.[20]<\/a> If Parliament reacts no more quickly than courts, this consideration will hold little sway in determining who is better capable of governing digital privacy.<\/p>\n Second, I will assess whether Parliament\u2019s responses have led to incoherent or unintended results. Again, this is a main critique of allowing courts to regulate digital technologies. Courts not only face time constraints when rendering decisions,[21]<\/a> they are also limited to consideration of the evidence submitted at trial.[22]<\/a> Because adversarial proceedings tend to produce inadequate evidence of the operation of digital technologies, courts are prone to render decisions without vital information.[23]<\/a> However, if Parliament is receiving inadequate evidence, conducting insufficient study, or passing laws in haste, it is likely that mistakes will also be found in its statutory scheme. If mistakes are made, its relative institutional competence will be undermined.<\/p>\n Finally, it is necessary to ask whether Parliament is subject to undue influence by special interest groups or ignores privacy interests to appeal to majoritarian bias. This is an important question in the context of search and seizure law, as prominent academics have questioned whether such concerns arise at all in the criminal law context.[24]<\/a> Even if such concerns arise, others ask whether these concerns apply to novel search technologies, which are disproportionately owned by members of social classes that have few encounters with the criminal law.[25]<\/a> If these concerns prove to be founded, and Parliament is unduly influenced, the value of judicial independence will assist courts in tailoring more balanced responses to governing digital privacy.<\/p>\n This inquiry is undertaken through the lens of public choice theory. Public choice theory applies microeconomics to political decision-making. Its broad contribution is to illustrate how the rational actor model applies to political actors.[26]<\/sup><\/a> Public choice theorists reject the assumption that political actors always act in the public interest, and seek to explain political behaviour by viewing political actors as \u201cegoistic, rational, utility maximizer[s].\u201d[27]<\/sup><\/a> Public choice theory is frequently used to explain inaction[28]<\/sup><\/a> and anomalous action (often caused by lobbyist influence[29]<\/sup><\/a>) by legislatures. Applying this theoretical framework to complex search technologies will allow for a reasoned conclusion concerning why Parliament reacts in the manner it does with respect to said technologies.<\/p>\n Before embarking on this study, it is also prudent to explain what is not <\/em>the subject of inquiry. First, I limit my study to federal criminal laws; including provincial legislation would make the study overly broad. As will become evident, Parliament\u2019s post-Charter<\/em> criminal legislation includes sufficient case studies to shed general light on the normative capacity of Canadian legislatures to govern privacy, at least in the criminal law context. Second, my study excludes national security legislation. To investigate the speed, coherence, and public choice theory questions central to my study requires broad access to records related not only to the development of the laws, but also to how those laws are interpreted and acted upon. Generally speaking, such information is not sufficiently available. As one author aptly puts it, \u201c[a]bsent whistle-blowers, it is almost impossible to develop enough understanding of the intelligence agencies and their practices to identify what should even be negatively framed in the first place.\u201d[30]<\/a><\/p>\n To assess Parliament\u2019s ability to govern digital privacy, I have divided my analysis into three sections. The first considers whether Parliament responded quickly to a technology that arose in the jurisprudence or was widely used by the public. Whether the response was intelligible or had significant gaps will be the subject of the second inquiry. The third inquiry will assess whether public choice concerns have arisen when Parliament passes digital privacy laws. I offer institutional explanations for Parliament\u2019s successes and failures at each interval.<\/p>\n The adoption of the Charter<\/em> resulted in a series of assertive decisions interpreting the scope of section 8, which protects against \u201cunreasonable searches and seizures.\u201d[31]<\/a> Perhaps unsurprisingly, Parliament\u2019s response was somewhat lagging in the first decade, as it also had to respond to a plethora of other Charter<\/em> decisions. Despite the challenge of responding to the judicial interpretation of a new bill of rights, Parliament initially reacted relatively quickly to fill gaps in the law on several occasions. In later years, however, institutional limitations prevented timely, if any, legislative response.<\/p>\n The passage of the Protection of Privacy Act<\/em>[32]<\/a> introduced what is now Part VI of the Criminal Code<\/em>.[33]<\/a> With this change, Parliament followed in the footsteps of its American counterpart and provided a comprehensive scheme for governing interceptions of private communications.[34]<\/a> It defined \u201cprivate communications\u201d as \u201cany oral communication, or any telecommunication, that is made … under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it.\u201d[35]<\/a> However, with the onset of communications technologies, the limitations of Part VI\u2019s ability to respond to privacy and law enforcement concerns were repeatedly exposed.[36]<\/sup><\/a><\/p>\n One of the first challenges posed to the scope of Part VI arose from its application to analog pagers.[37]<\/sup><\/a> At least two courts concluded that these technologies did not attract a reasonable expectation of privacy, thereby precluding the need for an intercept warrant.[38]<\/sup><\/a> Two reasons formed the basis for this conclusion. First, it was possible that a third party would overhear the recorded messages when played back on the pagers\u2019 speakers.[39]<\/a> Second, it was also possible for third-party pagers to access recorded messages by tuning into the same frequency as the receiving party\u2019s receiver.[40]<\/a> Despite the fact that the volume of a speaker may be controlled, these courts refused to recognize a reasonable expectation of privacy in the devices.[41]<\/a><\/p>\n Similar difficulties arose from public use of cell phones.[42]<\/a> Cell phones sent unencrypted analog signals that were available over publicly accessible radio waves, thereby giving rise to the question of whether they attracted a reasonable expectation of privacy.[43]<\/a> In R. v. Solomon<\/em>,[44]<\/a> the court concluded that no reasonable expectation of privacy existed because the cell phone signals were publicly accessible. In R. v. Cheung<\/em>,[45]<\/a> however, a more detailed assessment of telephony was undertaken. In so doing, the court concluded that because of the many frequencies and transmission towers from which information is transferred over wireless networks used by some phones,[46]<\/a> it would be rare to intercept any communications from these wireless phones.[47]<\/a> As such, the user\u2019s expectation of privacy was held to be reasonable.[48]<\/a><\/p>\n In the late 1980s, a further issue arose with respect to whether the consent of one party to covertly record a conversation supplanted the other party\u2019s reasonable expectation of privacy. No legislative provision expressly permitted such activity. The police could therefore only rely on the evidence obtained if the accused\u2019s expectation of privacy was unreasonable.[49]<\/a> As the consenting party could repeat the words in court, there was a basis to conclude that the accused gave up any reasonable expectation of privacy.[50]<\/a> In R. v. Duarte<\/em>,[51]<\/a> however, the Court rejected this argument. As Justice La Forest wrote, \u201c[a] society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning.\u201d[52]<\/a> Given the \u201cwholly unacceptable\u201d danger to privacy brought on by such new technologies, the Court concluded that prior judicial authorization was required.[53]<\/a><\/p>\n Shortly after Duarte<\/em>, the Court in R. v. Wong<\/em>[54]<\/sup><\/a> considered whether Part VI applied to video recordings. As outlined above, Part VI only covered oral or voice communications when it was first enacted. It therefore did not apply to non-audio-equipped video recordings. A few years earlier, the Law Reform Commission of Canada had explicitly concluded that this gap in the legislation would not lead to \u201cunjustifiable intrusion into privacy.\u201d[55]<\/a> As a result, the police had taken advantage of this loophole and planted a non-audio-equipped video camera in the accused\u2019s hotel room. The Court ultimately found a breach of section 8, since the accused had a reasonable expectation of privacy in his hotel room.[56]<\/a> As Part VI did not provide for a warrant power, it was again unable to serve legitimate law enforcement interests.<\/p>\n Around the same time Duarte<\/em> and Wong <\/em>were decided, the courts were also considering the legality of using digital number recorders to register the metadata relating to outgoing and incoming calls.[57]<\/a> In R. v. Fegan<\/em>,[58]<\/a> the Ontario Court of Appeal found that no warrant was required to use digital number recorders because the service provider was not acting on behalf of the state. Had such activity occurred at the behest of the state, however, pre-authorization would have been required.[59]<\/a> This conclusion derived from the then-recent decision in R. v. Wise<\/em>,[60]<\/a> wherein the Court considered whether police installation of a tracking device on a motor vehicle required prior judicial authorization. Even though the \u201cbeeper\u201d device at issue was unsophisticated,[61]<\/a> the Court found that its use breached the occupant\u2019s reasonable expectation of privacy. If such a minimal infringement required pre-authorization, then it was likely (contrary to an earlier appellate opinion[62]<\/a>) that a digital number recorder would also require pre-authorization.[63]<\/a> As the Criminal Code<\/em> provided neither powers, such searches violated section 8 of the Charter<\/em>.[64]<\/a><\/p>\n Parliament attended to many of these concerns in 1993 with Bill C-109.[65]<\/a> To address the inapplicability of Part VI to wireless phone communications, Parliament amended the definition of \u201cprivate communication\u201d to include any \u201cradio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it.\u201d[66]<\/a> This ensured that some wireless telephone communications would require the state to meet the higher requirements for a Part VI intercept warrant.[67]<\/a><\/p>\n Parliament\u2019s enactment of section 184.2 of the Criminal Code<\/em> further provided for warrants to allow for consensual interception of communications. This addressed the concerns raised in Duarte<\/em>. In addition, Parliament enacted provisions that permitted warrantless interception where bodily or imminent harm is reasonably foreseeable.[68]<\/a> Although the requirements now found in section 184.2 do not provide the added protections of other Part VI warrants,[69]<\/a> the courts have found the lower standard to be constitutional as the third-party privacy concerns raised by traditional intercepts are not engaged.[70]<\/a> As Justice Watt observed in R. v. Largie<\/em>,[71]<\/a> \u201c[p]articipant surveillance is generally more focused than third-party surveillance, targeting specific conversations with specific individuals.\u201d[72]<\/a> Thus, not only do captures of third-party communications become less likely, but the state agent\u2019s control over the conversation also reduces the risk of accidentally receiving irrelevant but private information.[73]<\/a><\/p>\n To address the gap revealed in Wong<\/em> regarding the non-applicability of Part VI to non-audio-equipped video recordings, Parliament enacted the general warrant provision under section 487.01. This broad provision offered a means for police to seek a warrant where no other legislative enactment prescribed a suitable power. It also specifically included sections 487.01(4) and (5), which extended Part VI to apply to any observation \u201cby means of a television camera or other similar electronic device\u201d of \u201cany person who is engaged in activity in circumstances in which the person has a reasonable expectation of privacy.\u201d[74]<\/a> Thus, Parliament not only provided police with a means to lawfully conduct non-audio-equipped video recordings, but also gave police a flexible tool to apply for search warrants where no specific Criminal Code<\/em> provision applied.<\/p>\n Finally, in response to Wise<\/em> and Fegan<\/em>, Parliament enacted sections 492.1 and 492.2 of the Criminal Code<\/em>. Section 492.1 allowed tracking warrants to be issued if the police had reasonable grounds to suspect an offence had been or would be committed and that information relevant to the offence could be obtained by using a tracking device. Section 492.2 allowed for the use of digital number recorders if police had reasonable grounds to suspect information related to an accused\u2019s telephone calls would aid in an investigation. This lower standard of reasonable suspicion was borrowed from the decision in Wise<\/em>, wherein the Court concluded that any parliamentary response could allow for authorization on a lower standard given the lower privacy interests inherent in the information revealed by some searches.[75]<\/sup><\/a><\/p>\n The next parliamentary response to digital privacy concerns was less comprehensive, but no less important, as it updated the warrant powers for police officers under section 487 of the Criminal Code<\/em>. This provision\u2019s scope extended only to \u201cthings\u201d found in buildings, places, or receptacles. The problem raised by digital evidence was aptly summarized by Susan Magotiaux:<\/p>\n Is a computer a thing? Is the data on it a thing? Is the string of binary code sent through satellites in pieces and reassembled at some other machine a thing? Is it the same \u201cthing\u201d when it lands as it is when it travels in pieces? And what of the places? Police can\u2019t knock and announce their presence at the door of satellites and clouds and mobile servers. Yet without particularity of place, current tools may be unavailable.[76]<\/a><\/p>\n To ensure police could seek warrants for digital \u201cthings,\u201d Parliament amended section 487 of the Criminal Code<\/em> in 1997.[77]<\/sup><\/a> Subsections 487(2.1) and (2.2) were added to ensure police may apply to access and use computer systems found in the place of a search. These broad provisions provide that a police officer may \u201cuse or cause to be used any computer system at the building or place to search any data contained in or available to the computer system.\u201d[78]<\/a><\/p>\n As computer technologies became more prevalent, the modes for committing a diverse amount of crimes were fundamentally transformed.[79]<\/a> Unfortunately, the wording of many criminal offences did not capture acts committed with computer technologies, while other offences now prevalent in the digital age had not received any criminal prohibition. Parliament spent much of this period attempting to fill these legislative gaps.<\/p>\n The main area addressed by Parliament was broadly concerned with the sexual exploitation of minors. Digital technologies provided new and difficult-to-trace means of possessing and distributing child pornography.[80]<\/a> The typical means of \u201cpossession\u201d in the physical sense applied to those who downloaded child pornography.[81]<\/a> However, determining whether accessing an image on an internet website constituted \u201cpossessing\u201d the data posed conceptual difficulties.[82]<\/a> Although evidence stored in the cache may<\/em> provide sufficient evidence of knowledge and control, these core elements of possession will often be difficult to prove with such evidence.[83]<\/a> Equally concerning, the definition of distributing child pornography did not extend to digital means of distribution, which had become increasingly common at the turn of the century.[84]<\/a><\/p>\n In response to these issues, Parliament enacted Bill C-15A in 2002.[85]<\/a> This bill created the \u201caccessing\u201d child pornography offence now found in subsections 163.1(4.1) and (4.2) of the Criminal Code<\/em>.[86]<\/a> Parliament\u2019s purpose in making these arrangements was to \u201ccapture those who intentionally view child pornography on the net but where the legal notion of possession may be problematic.\u201d[87]<\/a> Bill C-15A also amended the distribution of child pornography offence found in subsection 163.1(3) to include \u201ctransmission\u201d and \u201cmaking available\u201d within the scope of the offence. This had the effect of ensuring that the \u201coffence extends to distribution of child pornography in electronic form on the Internet by such means as e-mail and posting items to websites.\u201d[88]<\/a> Parliament further passed section 164.1, which allowed for courts to order the removal and destruction of child pornography on the internet.[89]<\/a><\/p>\n Bill C-15A also introduced an offence for child luring by way of a \u201ccomputer system.\u201d[90]<\/a> The internet enabled the increased prevalence of this sort of predatory behaviour and, as such, the prohibition was tailored to combat the digital commission of these crimes.[91]<\/a> Similarly, voyeurism offences had become increasingly prevalent with increased technological capacity. Parliament responded with a specific prohibition against recording people in private circumstances.[92]<\/a> These and the child pornography provisions would not require any substantial amendments during this time period.<\/p>\n Parliament also updated several other offences to account for contemporary technology. For instance, the illegal gambling provisions in paragraph 202(1)(i) were amended in 2008 to include digital means for promoting or facilitating betting.[93]<\/a> Section 342.01 was amended to include copying of \u201ccredit card data\u201d as opposed to prohibiting only \u201cforging or falsifying\u201d credit cards, since the latter definition did not apply to the mere possession or use of a credit card\u2019s data.[94]<\/a> Parliament also introduced a criminal prohibition for using recording technology (i.e., small cameras) to record private productions such as movies on display in a theatre.[95]<\/a><\/p>\n In addition to creating new or amending old criminal offences, Parliament passed its first production order scheme in 2004.[96]<\/a> Production orders allow police to compel third parties who are not under investigation for any offence to produce data or documents that may be relevant to the commission of an offence by another person.[97]<\/sup><\/a> The impetus to pass this scheme arose from Canada\u2019s 2001 signing of the Council of Europe\u2019s\u00a0Convention on Cybercrime<\/em>.[98]<\/sup><\/a>\u00a0The convention requires that all signatories criminalize certain offences commonly committed on computers and improve investigative techniques for detecting online crime. By adopting this framework, the signatories aimed to facilitate increased co-operation between countries investigating cybercrime.[99]<\/a><\/p>\n Parliament\u2019s legislation furthered these goals by providing police with two types of production orders: a general production order issuable on reasonable grounds to believe an offence occurred and a specific order relating to financial or commercial data issuable on reasonable suspicion.[100]<\/a> Subsequent attempts in 2005,[101]<\/sup><\/a> 2009,[102]<\/sup><\/a> 2010,[103]<\/sup><\/a> and 2012[104]<\/sup><\/a> to bring in more narrowly tailored production orders, as well as provide a variety of other police powers necessary to ratify the Cybercrime Convention<\/em>,[105]<\/a> were unsuccessful. Either the Conservative government received limited opposition party support when in a minority position, an election was called causing the proposals to die on the order table, or, as discussed in detail below,[106]<\/a> public backlash caused government to retract its proposal.[107]<\/a><\/p>\n The advent of email and text messaging introduced novel challenges for Part VI intercepts. Under section 183, the meaning of \u201cintercept\u201d includes to \u201clisten to, record or acquire a communication or acquire the substance, meaning or purport thereof.\u201d[108]<\/a> Courts and academics had long argued that inclusion of the word \u201cacquire\u201d made it necessary to apply for a Part VI warrant to access retrospective email and text messages.[109]<\/sup><\/a> Others, however, concluded that the plain meaning of \u201cintercept\u201d required that the acquisition of the message occur during its transmission.[110]<\/sup><\/a> As this distinction fundamentally alters the prerequisites for obtaining private communications,[111]<\/a> several courts heard arguments with respect to when a state act qualified as an \u201cintercept.\u201d[112]<\/a><\/p>\n The Supreme Court of Canada partially addressed this issue in Telus<\/em>.[113]<\/a> Unlike other telecommunications providers, Telus stores all messages sent through its infrastructure on a computer database for thirty days.[114]<\/a> The police wanted to retrieve historical messages from this database, as well as future messages throughout the course of a warrant.[115]<\/a> Rather than applying for a production order and an intercept warrant, the police applied for a general warrant under section 487.01.[116]<\/a> A plurality of the Court found the acquisition of the future messages to be an \u201cintercept,\u201d since any prospective<\/em> capture of communications engages the purpose of Part VI.[117]<\/a> The remaining members of the majority concluded that this technique was \u201csubstantively equivalent\u201d to an intercept.[118]<\/sup><\/a> The dissent found that Part VI drew a distinction between interception<\/em> and use<\/em>, retention<\/em>, or<\/em> disclosure<\/em> of a communication.[119]<\/sup><\/a> As Telus was disclosing to police what it had independently intercepted during its delivery process, the practice did not qualify as an \u201cintercept.\u201d<\/p>\n The issue of whether an intercept warrant was required for purely historical emails or text messages reached the Court four years later in R. v. Jones<\/em>.[120]<\/a> The Court adopted the dissenting view in Telus<\/em> that the statutory scheme supported the distinction between disclosure and interception. As such, police need only apply for a production order to obtain historical messages. Although this issue is now settled (barring a constitutional challenge),[121]<\/a> it is notable that Parliament failed to update its legislation despite these ambiguities being known to the federal government for well over a decade.[122]<\/sup><\/a><\/p>\n The use of peer-to-peer file sharing networks in the context of child pornography investigations also posed difficulties for police investigations. These networks allow users to download files directly from another user\u2019s computer. As users are anonymous online, police must begin such investigations by procuring the Internet Protocol (IP) address that obtained the child pornography files.[123]<\/sup><\/a> The investigating officer can then run the IP address through a database that matches IP addresses with approximate locations and service providers.[124]<\/sup><\/a> The officer then makes a \u201claw enforcement request\u201d to the relevant service providers requesting that it release the subscriber information related to the IP address.[125]<\/sup><\/a> With this information, the police may then obtain a warrant to seize and search the suspect\u2019s computer.[126]<\/sup><\/a><\/p>\n These were the facts underlying the Court\u2019s decision in R. v. Spencer<\/em>,[127]<\/a> as well as a series of earlier lower court decisions dating back to the mid-2000s.[128]<\/a> The accused in Spencer<\/em> successfully argued that he had a reasonable expectation of privacy in his subscriber information.[129]<\/a> As such, the Court concluded that state requests for Internet Service Provider (ISP) subscriber information qualify as a search under section 8 of the Charter<\/em>, thereby requiring lawful authority to conduct the search. As there was no suitable provision authorizing the state to make such requests,[130]<\/a> the search was found to be unconstitutional.[131]<\/sup><\/a><\/p>\n Technological change also affected the intrusiveness of tracking warrants. Tracking warrants are frequently attached to objects, such as vehicles, but now are also available to monitor mobile devices frequently carried on the person. The ability to track a person\u2019s precise location with Global Positioning System (GPS) technology, as opposed to the unsophisticated methods at issue in Wise<\/em>, poses significantly more serious threats to privacy. As such, it was questionable whether tracking a person based on \u201creasonable suspicion\u201d still struck an appropriate balance between privacy and law enforcement interests.[132]<\/a><\/p>\n The utility of digital number recorders was also impacted by technological developments. Section 492.2 of the Criminal Code<\/em> originally stipulated that a \u201cnumber recorder\u201d was \u201cany device that could be used to record or identify the telephone number or location of the telephone from which a telephone call originates, or at which it is received or is intended to be received.\u201d[133]<\/a> As people now frequently communicate with other media such as email and text, it was necessary to create a broader framework for capturing metadata with respect to such communications. It was also unclear if the retrievable data under section 492.2 included the place at which the call was made and received. Arguably this would also be constitutional, but the legislation needed to explicitly allow for such a search.[134]<\/sup><\/a><\/p>\n Finally, the Court was presented with the issue of whether searching cell phones incident to arrest was constitutional.[135]<\/a> This issue has especially important implications for digital privacy.[136]<\/sup><\/a> As such, the Court\u2019s decision to allow warrantless cell phone searches incident to arrest\u2014when many cell phones are functionally equivalent to computers[137]<\/a>\u2014was controversial. For a variety of reasons, the Court\u2019s ruling has been heavily criticized.[138]<\/a> Anticipating its institutional shortcomings to develop a comprehensive rule, the majority invited Parliament to pass legislation governing when police may conduct such searches.[139]<\/a><\/p>\n Parliament addressed some of these concerns in 2014 with Bill C-13.[140]<\/a> To address the gap in Spencer<\/em>, as well as other more general gaps in the production and preservation order scheme, Parliament overhauled sections 487.011 to 487.0199 of the Criminal Code<\/em>. Three main production orders were created, all issuable upon reasonable grounds to suspect an offence has been or will be committed. Sections 487.015 and 487.016 were added to allow police to trace and have third parties produce \u201ctransmission data.\u201d[141]<\/a> Transmission data is effectively metadata\u2014that is, the contextual information surrounding a communication.[142]<\/a> Acquiring such data allows police to trace the origin of any telecommunication.[143]<\/a> Section 487.017 allows police to apply for \u201ctracking data,\u201d being data that \u201crelates to the location of a transaction, individual or thing.\u201d[144]<\/a> The amendments also provided police with the ability to compel third parties to preserve documents in their possession for a prescribed period. As such information is routinely destroyed (sometimes intentionally but often inadvertently), this provision was necessary to preserve evidence for crimes committed with digital technologies.[145]<\/a><\/p>\n Parliament further responded to concern over the constitutionality of tracking device warrants available under section 492.1 of the Criminal Code<\/em> by raising the standard from reasonable suspicion to reasonable grounds to believe when the device being tracked is commonly on the person.[146]<\/a> Parliament simultaneously updated the digital number recorder provision to include the broader term \u201ctransmission data.\u201d[147]<\/a> This allowed police to obtain data indicating the origin and intended recipient of internet and text communications, not just telephone communications.[148]<\/a> The revised definition also clarified that location data during the transmission of a call may be obtained, a question left open by the previous provisions.[149]<\/a> The fact that it took until 2014 to update these provisions, however, is evidence of Parliament\u2019s difficulty keeping pace with digital technologies.<\/p>\n Finally, Bill C-13 updated the Criminal Code<\/em> by providing an offence for what has come to be known as \u201ccyberbullying.\u201d[150]<\/a> A legislative gap arose because digital technologies made it easy for young persons to distribute sexually explicit photos of their peers. Because charging youth with distribution of child pornography was too harsh a sanction,[151]<\/a> Parliament introduced subsection 162.1(1) of the Criminal Code<\/em>. Although the section in many ways mirrored the existing child pornography offences, it provided prosecutors with more moderate sentencing options for prosecuting youth and young adults than the child pornography provisions.[152]<\/sup><\/a><\/p>\n Several conclusions may be drawn from the above review. Parliament\u2019s first few responses to gaps or constitutional issues with its legislative framework governing complex technologies were relatively quick.[153]<\/sup><\/a> At the turn of the century, however, Parliament became much less efficient. Despite having undertaken to provide a comprehensive lawful access scheme with its signing of the Convention on Cybercrime <\/em>in 2001,[154]<\/a> Parliament\u2019s legislation was patchwork and slow. Parliament did, however, manage to meet the requirements of the convention fourteen years after it was adopted.[155]<\/sup><\/a> In the interim, the Crown pursued drawn-out litigation in the courts trying to find lawful access provisions where none existed.[156]<\/sup><\/a> Disputes surrounding Part VI warrants fared no better, as Parliament\u2019s refusal or inability to address the confusion surrounding the definition of \u201cprivate communication\u201d and \u201cintercept\u201d was ultimately left to the courts.[157]<\/sup><\/a> Although the digital number recorder warrant was eventually updated, the provision was inapplicable to many of the most common mediums of communication for two decades. Other issues with significant digital privacy implications, such as searches of cell phones incident to arrest or guidelines for searching computers under subsections 487(2.1) and (2.2), have so far received no response from Parliament.[158]<\/sup><\/a><\/p>\n Parliament did fare better in defining offences\u2014a domain where it could not rely on courts to fill in legislative gaps. Several offences were modified in the early- to mid-2000s to allow prosecution of new ways of committing crime brought on by digital technologies. Parliament\u2019s record with respect to updating offences, however, is not perfect. As Peter McKay observed, given the seriousness of the child pornography offence, the delay in updating these provisions was \u201cvirtually inexcusable.\u201d[159]<\/a> The well-known practice of cyberbullying had also been an issue long before Parliament\u2019s legislation passed. More than anything, the response was a reaction to high profile teenage suicides.[160]<\/a> Moreover, other desirable offences\u2014such as a criminal prohibition for accessing and stealing historical data\u2014have still not received criminal sanction.[161]<\/sup><\/a> Overall, although Parliament has responded reasonably quickly when updating offences, its record has blemishes.[162]<\/a><\/p>\n Any attempt at explaining Parliament\u2019s slow response time will, to some extent, be guesswork. However, it is not unreasonable to at least partially explain significant delays by observing that Canadian governments are often in a minority position. This was the case from 2004 to 2011, a period where legislative amendments regarding controversial privacy issues such as \u201clawful access\u201d were repeatedly stifled.[163]<\/a> A great deal more legislation was passed in the following years, which witnessed a Conservative majority government. It is also important to note, however, that all opposition parties during the Conservative government\u2019s time in power cited instances where the cause of delay was the Conservative government\u2019s tendency to shelve bills containing criminal justice issues, and then re-raise the bills to distract from scandals or to drum up political support around election time.[164]<\/a> The \u201ctough on crime\u201d angle suggests that majoritarian politics were at play, and that the government was willing to sacrifice privacy interests for political gain.<\/p>\n The coherence of Parliament\u2019s responses to complex and rapidly advancing search technologies is equally illustrative of its relative institutional capacity to govern digital privacy. As will be seen, both privacy advocates and law enforcement have expressed concern about significant deficiencies with Parliament\u2019s legislative responses. Many of the technological developments were not anticipated by Parliament. Other anomalous results arose from unclear legislative drafting, which may be attributed to a failure to fully comprehend digital technologies. Still other responses relied on highly questionable determinations that the technology at issue did not attract a reasonable expectation of privacy.<\/p>\n Parliament\u2019s 1993 amendment to the definition of \u201cprivate communication\u201d ensured that all encrypted digital signals sent via wireless phones came within the ambit of the term.[165]<\/a> However, the various technologies used by different \u201cgenerations\u201d of cordless phones resulted in many then-current technologies falling outside of the amended definition of private communication. First generation cordless phones, which at the time of the amendments were used by 95 per cent of telephone users,[166]<\/a> were susceptible to interception by simple scanner devices.[167]<\/sup><\/a> As a result, some courts held that communications via these phones did not attract a reasonable expectation of privacy.[168]<\/sup><\/a> These phones, like their analog pager predecessors, could therefore be tapped by anyone, including police, at will.<\/p>\n Other courts, in line with modern jurisprudence on section 8 of the Charter<\/em>, concluded that the technical capabilities of private communication technology and their ability to be intercepted should not be the only factor considered.[169]<\/a> To exclude 95 per cent of then-current cordless phone users was arguably not in line with what the average consumer would expect, as it is unlikely that anyone other than the police was frequently trying to intercept phone calls.[170]<\/a> Moreover, placing emphasis on the type of phone one owns allows those who can afford to purchase newly available technologies to have greater privacy protections.[171]<\/a> Parliament, then, arguably drew an arbitrary and unfair distinction in its first amendment to the definition of private communication.<\/p>\n In its 2014 amendments, Parliament elevated the grounds necessary for issuance of a tracking device warrant if the device is commonly found on the person. Given the onset of GPS tracking, this sounds like a principled approach. However, this approach may unduly limit police, depending on what technique is used to track a device. Tracking a cell phone, for instance, may involve police using a tactic known as \u201cpinging.\u201d This practice indicates to police the cell phone tower with which a cell phone is exchanging signals. In Grandison<\/em>, the expert testimony revealed that the information gained from this tactic told police that the accused was anywhere from a 50- to 4,894-metre radius from a tower.[172]<\/sup><\/a> The court also noted that pinging does not involve constant tracking of the subject, but instead requires that police make specific requests to the telecommunication service provider to determine the subject\u2019s approximate location at any given time.[173]<\/sup><\/a> This is contrary to GPS tracking, wherein an accused\u2019s exact location can be determined at any time.[174]<\/sup><\/a><\/p>\n With a fuller understanding of the technology used for tracking the accused\u2019s phone, the court rejected the accused\u2019s contention that using the previous reasonable grounds to suspect standard was unconstitutional.[175]<\/a> It came to this conclusion despite the amendments raising the relevant burden of proof having been implemented between the time the charge arose and when the court rendered its decision. Although the technique at issue was somewhat more sophisticated than the vehicle tracker used in Wise<\/em>, the court concluded that the information revealed did not, unlike the use of GPS technologies, significantly touch on the biographical core of personal information required to constitutionally impose the higher reasonable and probable grounds standard.[176]<\/a> Parliament\u2019s amendment, although well intended, therefore inadvertently prevented police from using other reasonable and less invasive methods of cell phone tracking.<\/p>\nI. \u00a0 Methodology<\/h1>\n
II. Parliament\u2019s Legislative Responses<\/h1>\n
A.\u00a0 Speed of Response<\/h2>\n
1.\u00a0\u00a0\u00a0 Post-Charter<\/em><\/h3>\n
2.\u00a0\u00a0\u00a0 1994\u20131997<\/h3>\n
3.\u00a0\u00a0\u00a0 1998\u20132013<\/h3>\n
4.\u00a0\u00a0\u00a0 2014\u2013Present<\/h3>\n
5.\u00a0\u00a0\u00a0 Summary<\/h3>\n
B.\u00a0 Coherence of Response<\/h2>\n
1.\u00a0\u00a0\u00a0 Wireless Phones<\/h3>\n
2.\u00a0\u00a0\u00a0 Tracking Device Warrants<\/h3>\n