Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 5 minutes.

Latest News

  1. The SCC is releasing its decision in R. v. Bykovets on Friday, March 1, 2024. At issue is whether IP addresses alone attract a reasonable expectation of privacy.
  2. On Feb. 9, 2024, the SCC released its decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5. The Court unanimously dismissed Quebec’s appeal and allowed Canada’s cross-appeal. The Court upheld the constitutionality of a federal statute affirming Indigenous peoples’ right of self‑government with respect to child and family services in its entirety.
  3. 81% correctly predicted the result.

Head over to Fantasy Courts to lock in your predictions for this week’s decision, or read more about the cases below.

Case to Predict: Privacy in IP Addresses

Appeal as of right from R v Bykovets, 2022 ABCA 208

SCC factums & webcast of hearing

What Happened?

Background: The police commenced an investigation into the purchase of virtual gift cards with fraudulent credit card information. The police were told by the payment processor that the fraudulent online transactions used two IP addresses. The police only then obtained warrants to search the two residences associated with the IP addresses. The appellant was arrested and charged with 33 offences relating to the possession and use of third parties’ credit cards and personal identification documents, and firearms.

Trial: The appellant filed a notice alleging the breach of his rights under s. 8 of the Charter as well as other rights. The trial judge found that it was not objectively reasonable to recognize a subjective expectation of privacy in an IP address used by an individual. She concluded that there was no breach of s. 8. The appellant was eventually convicted of 13 of the original 33 counts, which he appealed.

Court of Appeal: The majority of the Court of Appeal of Alberta dismissed the appeal. It found that the trial judge correctly interpreted the scope of the law that governed her s. 8 analysis. The majority concluded that she applied the correct interpretation to her factual findings, which revealed no palpable or overriding error. Veldhuis J.A., dissenting, would have allowed the appeal and ordered a new trial. She found that the appellant had a reasonable expectation of privacy in the IP addresses and that his s. 8 rights were violated.

What Was Argued at the SCC?

Appellant: The appellant argued that the Court of Appeal’s majority decision undermines protections for the rights of Canadians to think, act and communicate online. It also permits a limitless police power to monitor and surveil Canadians’ online activities. The appellant asks that the SCC follow Justice Veldhuis’ dissenting opinion which found that IP addresses engage a reasonable expectation of privacy because they are “the identity of an internet user which corresponds to a particular IP address that is linked to a particular, monitored internet activity.”

Respondent: The Crown argued that an IP address is an abstract number that exposes nothing about the appellant’s core biographical details, private life, or online browsing habits. The SCC should follow its decision in Spencer where it found that a privacy interest is only raised when the police try to link an IP address to subscriber information.

What Else Should You Know Before Making a Prediction?

This appeal had two hearings. It was first heard in January 2023 by seven judges, including Justice Brown, and then again in December 2023 by a full panel. The likely reason for the rehearing is that there was a tie the first time around because of Justice Brown’s departure. New to the second hearing were Justices Rowe, Kasirer and Moreau.

I’m leaning towards appealed dismissed. The Court in R. v. Spencer, 2014 SCC 43 ruled that there was no reasonable expectation of privacy in the IP addresses alone, and the police here effectively did what they were told to do in Spencer. I could see the SCC ruling that there can be a reasonable expectation of privacy in an IP address in some circumstances, but that would not change the result here because the police obtained judicial authorization to do anything further with the IP address.

Previous Prediction: Indigenous Peoples’ Right of Self‑government

On February 9, 2024, the SCC released its decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5.

Held (8:0): Quebec’s appeal dismissed. Canada’s appeal allowed. The Act as a whole is constitutionally valid.

Key Points:

  • The pith and substance of the Act is to protect the well‑being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in so doing, to advance the process of reconciliation with Indigenous peoples.
  • The Act falls squarely within Parliament’s legislative jurisdiction over “Indians, and Lands reserved for the Indians” under s. 91(24) of the Constitution Act, 1867.
  • Nothing prevents Parliament from affirming that Indigenous peoples’ inherent right of self‑government recognized and affirmed by s. 35 of the Constitution Act, 1982 includes legislative authority in relation to child and family services. This does not constitute a unilateral constitutional amendment.
  • It is also constitutionally open to Parliament to use anticipatory incorporation by reference of provisions adopted by other entities as a legislative drafting technique if Parliament has the legislative jurisdiction required to enact the law it seeks to referentially incorporate.

Predictions: 81% of players correctly predicted that Quebec’s appeal would be dismissed.

-Tom Slade

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