A TheCourt.ca Exclusive Interview: R v Spencer One Year Later

A New Hurdle To Protecting Our Children? A Perspective from the Toronto Police Internet Child Exploitation Unit

Last year, TheCourt.ca published two key articles about the Supreme Court of Canada’s landmark ruling on Internet privacy. See Jordan Casey’s summary here and Stuart Wood’s analysis here.

After its release, R v Spencer, [2014] 2 SCR 212 [Spencer] was hailed by privacy advocates as a monumental shift toward establishing meaningful protection of informational privacy and fundamental notions of liberty and human rights. However, strong views expressing the detrimental effect of Spencer are more pronounced as the impact of the ruling sets in.

In an exclusive interview, TheCourt.ca speaks with a representative of the Toronto Police Internet Child Exploitation (“ICE”) section.   Detective Sergeant Kim Gross is Officer in Charge of this section, and describes the ramifications of Spencer and the frustrating lack of public awareness of new challenges to protecting potential child victims.

Can you share with our readers the nature of your experience and the types of cases that you investigate in the ICE section?

“I have been with the Toronto Police Service for 29 years and I have been in charge of the ICE section for the past 4 years. In ICE, our focus is online activities and so we primarily investigate crimes such as child luring, distribution of child pornography, making of child pornography and possession of child pornography.

In addition, ICE investigates a growing number of what we call “self/peer” cases which are basically situations where a youth goes online and exposes themselves to a person they were communicating with on the Internet. That person then either attempts to, or successfully, extorts the youth for more of these types of photos or live videos of themselves. We frequently see these types of interactions among peers in schools.

When it occurs between peers, we use these incidents as an opportunity to education the youth on safe Internet practices and the legal consequences of their actions.”

 How critical are online resources for the investigation of exploitation crimes against children?

“Very critical.

The advent of technology and general online mobility allow like-minded individuals that want to harm children to find each other more easily. They build online communities supporting the abuse of children. Also, children will not use the best judgment when they are online so our investigations are important to their protection.

Law enforcement is well aware that the use of the Internet to perpetuate exploitation crimes against children has vastly increased over time. The national statistics tell us this. Compared to most other crimes, none have increased at the rate of child pornography and exploitation related offenses.”

Who are these accused?

“We do not profile suspects. However, a review of our cases would show that the substantial majority of accused are white males from a variety of socio-economic backgrounds. The men we have investigated, and subsequently convict, include teachers, lawyers, doctors, and your unemployed basement dwellers.

There appears to be an underground population of individuals that have a sexual interest in children. Today, the Internet provides a platform for them to find each other and share ideas on feeding this sexual interest. This population has always existed.

It is difficult for the average person to truly understand this behaviour. However, I am a believer that society does play a part in creating these monsters. Victims of this exploitation, if they do not get the help that they need, do re-victimize other children later on in their own life. Their sense of ‘normal’ based on their own experience of abuse can lead to a continuation of this cycle. This is not an excuse for abusing a child but it is something that requires our attention.”

In light of Spencer, can you explain the difference between a Law Enforcement Request (“LER”) and a Production Order?

“Since Spencer, the LER no longer exists. Prior to Spencer, the LER was a simple one-page request to an Internet Service Provider (“ISP”) to send us basic subscriber information linked to an identified [Internet Protocol] (“IP”) address. The ISP would respond, typically within 24 hours. The subscriber information is very basic and includes the name, address and telephone number connected with a particular IP address. This process has been in place between ISPs and the Toronto Police since 2005 and is used exclusively for child exploitation work.

Our purpose for using the LERs was expediency because we get so much information on suspected child pornography users in Ontario. Everyday, thousands of people are downloading child pornography or discussing abusing children and we receive tips from concerned citizens. The LERs were helpful because it was a quick turnaround to help us identify cases that genuinely required our attention.

Our investigators especially sought subscriber information for the cases where we suspected children lived in the home or were easily accessible to individuals connected to online child exploitation activities. We prioritized our investigations based on the level of risk to a child.

The important thing to keep in mind is that the LER was only a starting point. It provided our police service with only limited information and we normally sought a production order later on if we felt there was a genuine threat to the safety of children.

A Production Order is basically a formal search warrant for documents. It is a demand through the courts for a company to produce documents for the purpose of an investigation. The typical turnaround time for the fruits of a Production Order is 30 days.

Since Spencer, LERs can no longer be used and we are required to seek even basic subscriber information through a Production Order. The test to receive authorization is reasonable grounds to believe. What that means is that even if we get a tip from a member of the general public about a person that could be engaged in exploitative practices, we cannot pursue the tip. The reason we cannot pursue the tip is because we would be operating on a lower standard of suspicion and not belief.

The standard for obtaining a Production Order is too high and it is hampering our ability to look further into potentially credible tips from the public. Also, the paperwork involved with obtaining a Productive Order is extensive. Depending on the circumstances, it could take an officer days or even weeks to construct a Production Order. At that point we must wait for approval from a Justice of the Peace, if we even get approval, and then submit it to the ISP to be fulfilled. At the point it reaches the ISP, it often takes 30 days to receive the subscriber information back from the company.”

 Why do police agencies prefer one form of information request to another?

“With the new requirement of Production Orders for subscriber information, the paperwork that officers must do has significantly increased. Even once the Production Order is approved, we still have to complete more Production Orders to get internet chats and logs and, of course, another search warrant to enter a dwelling place to gather evidence.

LERs were preferable because they were a time sensitive method of conducting an initial review of a possibly credibly tip.”

With respect to Spencer, do you agree or disagree with the court that subscriber information is private information?

“I disagree with the court’s decision but I have to respect it. I used to work in wiretaps and when cellphones first came out we worked hard with ISPs to convince them that we did not need a search warrant for someone’s cellphone number if it was included in the individual’s contract with the ISP.

Over time, we built a relationship with these ISPs because of the understanding that the information we were receiving from them was not intrusive and did not get at the ‘biographical core’ of a person.

You can open up a phone book and link a name to a phone number. Why is an IP address viewed differently? The reality is that even IPs do not provide us with the best information because people can use computers anywhere there is Internet access (e.g. Internet café, coffee shop, library, etc.).

Linking an IP to a subscriber is a very limited starting point because you cannot find out much about a person. I am surprised and disappointed by the court’s ruling.

There is a fine balance between protecting individual rights and protecting society. The needs of children require us to go the extra mile and we need to do it collectively (i.e. politicians, police, corporations, etc.). I have trouble with the court’s suggestion that there is an imbalance when, all the while, children are being harmed by these exploiters.”

 Spencer reiterates that the ruling does not disturb the warrantless police search power under exigent circumstances. Does this provide you with some solace?

“Not really. It is hard to convince an ISP of imminent harm to a child. The lawyers for major ISPs seem to believe that the harm must be occurring that very instant. As a result, it is difficult for us to prove exigent circumstances to their expectation and therefore obtain subscriber information without a warrant.”

Since Spencer, what are some practical changes in investigation that you have noticed?

“Officers are spending more time writing warrants than investigating cases. Officers also can expect longer turnover in receiving the basic subscriber information under an authorized order.

Another significant change is that certain ISPs have become much more protective of their data and, as I noted earlier, often require a 30 day waiting period before the police can receive the basic information. Some companies even refuse to preserve this data. Unfortunately, the relationship between police departments and major ISPs has soured since Spencer. However, we are trying to rebuild our relationships with these particular ISPs.”

What do you believe are the long-term consequences of Spencer on your work as an ICE investigator?

“The long-term consequences can be described as extremely detrimental. Spencer slows down investigations and, in some cases, completely halts an investigation.

As the time goes by and the tips we receive pile up, that is more children we are neglecting. In addition, Spencer impacts not just child exploitation investigations but homicide as well.

Spencer is very disheartening to the officers working hard for the protection of children. They are all overworked and under resourced and this is unacceptable. Spencer has placed a significant roadblock in the way of ICE cases.”

What should investigators be doing in response to Spencer?

“There is not much that they can do.

Lobbying government has not been particularly effective. I have met with senior government officials to voice our concerns. It is frustrating that the wheels of justice are moving slowly at this point.

The public needs to know about what is happening and should assist us in pressuring the government. In that regard, public awareness campaigns are important. We also need to educate kids.”

What can Assistant Crown Attorney’s do in their prosecution of ICE cases post Spencer?

“As with police officers, Assistant Crown Attorneys cannot do much. If anything, they should be aggressive in appealing ridiculous decisions dealing with Spencer questions. However, I understand their limitations working within a bureaucracy.”

 Final thoughts?

“I love the work that I do with the ICE section. This work is rewarding when you take a predator out of a situation where they will harm a child. Rescuing a child is the best feeling in the world.

I just wish there was more public interest when it comes to the implications of Spencer and what we have to face as investigators. I understand the importance of the court acknowledging privacy rights but we also have to consider the significant downsides of this ruling.

We have an obligation to children. The courts should make an exception to this privacy ruling when it comes to ICE cases. Prior to Spencer, the police were careful to never abuse the use of LERs so why not trust us to continue using that effective method?

I maintain hope that the tide will shift back in our favour but for the time being I am not optimistic about what Spencer means for children as the most vulnerable people in our society.”

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As we can see, the implications of Spencer extend far beyond considerations of Internet anonymity. It highlights more than just questions of informational privacy under s.8 of the Charter. Spencer also changes the way that investigations into online child exploitation are conducted. The ruling has been in place for just over one year but already we see the immediate and extensive repercussions it has had on policing practices.

TheCourt.ca would like to thank Detective Sergeant Kim Gross for her time in presenting an important view of Spencer. We also invite other voices within the criminal justice community to contact TheCourt.ca and weigh in on this ruling from a different angle.