MBCA on Privacy vs Child Protection

The Manitoba Court of Appeal recently ruled on the right of a child protection agency to request the personal information associated with a subscriber to an IP address.

Child and Family All Nations Coordinated Response Network (ANCR) was contacted by the Winnipeg Police Service (WPS) in February, 2016 who were in turn, informed by Interpol that a convicted sex offender in the United Kingdom may have had contact with someone they believed to be a child in 2012. ANCR asked Shaw Communications to identify the owner of the IP address. Shaw refused without a court order.

The application was first taken up with a Master, who did not have jurisdiction to hear an application as opposed to a motion, and then it went to a judge, who dismissed it, concluding that she did not have the jurisdiction to make the order either.

This decision is significant for its analysis of the interpretation of a statute.

[18] ANCR brought its application pursuant to the QB Rules for a determination of rights based upon the interpretation of the CFS Act and regulations. Rule 14.05(2)(c)(iv) of the QB Rules allows for the determination of rights that depend on the interpretation of any document referred to in the rule, in this case, a statute. The rule does not create jurisdiction, but provides a means to determine the nature and extent, if any,
of jurisdiction that already exists.

Steel, J.A. dismissed the application based on the documentation and evidence, while noting that the child protection agency did indeed have the jurisdiction to make such a request. Also of significance are Beard, J.A.’s concurring reasons.

ANCR v. Shaw Communications Inc. , 2017 MBCA 92

 

One Reply to “MBCA on Privacy vs Child Protection”

  1. Thanks for drawing my attention to this case with your comment in Great LEXpectations. I read your comment and wanted to read the case because the way I read your comment, it sounded like the court found that the judge below was correct in her finding that she did not have jurisdiction.

    My reading of the MBCA decision is that Justice Steel decided that the lower judge erred, and in law, the lower court DID have jurisdiction under the CFS Act to grant an order compelling Shaw to disclose, provided the correct application (motion for contempt or an injunction) to court was made with the necessary supporting evidence.

    As I understand the decision, Justice Beard thought the decision of Justice Steel should have stopped there and left it to ANCR to decide if it would go back to court with the correct application and necessary supporting evidence. Justice Beard thought that Justice Steel should not have continued to comment on the quality of the evidence supplied to the lower court judge to support ANCR’s request for a declaration.

    I wondered if you might add the quotes below to the end of your comment – perhaps as an addendum just to be very clear.

    Your comment accomplished its purpose. It made me read the case!!

    [37] So, it seems as if a legislative gap exists in this situation. ANCR has the jurisdiction to require that Shaw provide the name of the subscriber, but what happens if Shaw refuses? Can it apply to the court for a remedy and what is the nature of that remedy?
    . . .
    [46] Although I find that the application judge erred in finding that she had no jurisdiction to make an order, I wish to emphasize that the application judge was not referred to the relevant regulations reviewed above, in either the written material or oral arguments. This was also true of the argument in front of this Court.
    [47] Moreover, again, although I have found that there is jurisdiction for ANCR to request the documents and information and to obtain relief from the Court by way of a finding of contempt or an injunction, that is not the relief that was requested in this Court or the Court below.

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