Are you curious about the dark web in Canada? Canadians and people everywhere are undoubtedly curious about protecting themselves online in the modern age of mass electronic surveillance, privacy breaches, and ransomware attacks.

One way to do so that has attracted considerable media and law enforcement attention is the so-called “dark web,” where online activity is encrypted and anonymized, facilitating a new class of global Criminal Activity. But does that mean the dark web itself is illegal in some places? Is the dark web illegal in Canada?

Accessing the dark web, in and of itself, is not illegal in Canada. Every day people who use software such as the Onion Router to access the dark web don’t necessarily have to worry about the police coming and knocking on their doors. It’s not illegal to just use the dark web and browse the internet anonymously but doing illegal things on the dark web gets people thrown in jail.

Dark web access through onion routing software 

While the use of the dark web through what’s known as onion routing – a form of decentralized, layered encryption of data – began in response to privacy concerns in the face of easy and clandestine electronic surveillance, it didn’t take long for criminals to take advantage of the anonymity such methods offered.

Coupled with the rise and global proliferation of cryptocurrencies, the use of the dark web has been associated with all kinds of criminal activity, including cyberattacks, worldwide mail-based drug dealing operations, child pornography, human smuggling, money laundering, terrorist financing, and illegal gun trafficking. 

But the dark web is said to be a facilitator of criminal activity, like a darkened lawless highway with no street lights where lawbreakers can travel freely without fear of seeing police lights in their rearview mirrors. Law enforcement challenges associated with the dark web are numerous due to its global, decentralized network, posing both jurisdictional and investigative hurdles to catching perpetrators of crimes around the world. 

Though catching crooks on the dark web by virtue of the anonymity it offers is difficult, it’s certainly not impossible. The dismantling of the Silk Road, a darknet Tor-based site that offered a veritable smorgasbord of illegal drugs for sale, in 2013 and the criminal conviction of its founder Ross Ulbricht two years later marked a significant victory for law enforcement against dark web-based criminal activity. For their part, Canadians were found to be some of the site’s most prolific customers for steroids, cocaine, marijuana and other illegal substances.

Canadian courts and the dark web 

Canadian courts, meanwhile, have seen dozens of criminal cases involving the illegal use of the dark web over the last decade. With the Silk Road taken offline years earlier, for example, another illicit online marketplace called AlphaBay cropped up and was used to facilitate mail-based drug dealing, including the trafficking of lethal amounts of fentanyl and other opioids. 

In 2020, a man who lived in Kelowna named James Nelson was sentenced to 11 years in prison for trafficking fentanyl and carfentanil over the dark web through the AlphaBay marketplace and another site called the Dream Market. According to the ruling in Nelson’s case, he had touted himself as one of the “premium” vendors of fentanyl in western Canada under the moniker “Fattuesday_13.”

Using that same user name, Nelson apparently boasted of selling drugs online using other dark web markets, including the Silk Road. At the time, he had no criminal record but admitted that he and his girlfriend had developed a $10,000 monthly drug habit. 

Dark web-based drug trafficking

Nelson’s case, which also included charges alongside his girlfriend, was said by the judge to be the first case in Canada where someone was sentenced to prison for their dark web-based drug trafficking of fentanyl and carfentanil. Nelson appealed his sentence as “unfit,” but the British Columbia Court of Appeal dismissed the bid in 2021. 

The appellate court noted that Nelson had held himself out in public as a law-abiding small business owner with a “veneer of respectability” that “obscured” his long-standing drug trafficking activities. Nelson, the appellate court noted, had used a “sophisticated and intricate business model” through his dark web drug trafficking to sell potentially lethal drugs around the world using Canada’s public postal system. 

Major privacy breaches at several organizations

Other cases involving the dark web, though, have involved illegal guns, murder for hire, child pornography, and major privacy breaches at several organizations where courts and provincial privacy commissioners have raised the fear of peoples’ personal information showing up on the dark web for sale.  

But one case from the Supreme Court of Canada in 2014 known as R. v. Spencer saw the court unanimously rule that Canadians had a “reasonable expectation of privacy” when it comes to their internet subscriber information held by service providers. Spencer was convicted of child pornography-related offences but had argued his Charter rights were violated by police when they sought out personal information related to his internet protocol address held by Shaw. 

The heightened subjective expectation of privacy

A few years after the Spencer case decision, its implications on dark web-related prosecutions were noted by Lee Ann Conrod, a lawyer with the Public Prosecution Service of Canada. In a 2017 commentary, Conrod warned that the Spencer decision would likely make prosecuting dark web-based criminal activity much harder. 

She claimed that it was arguable that people using Tor software to browse the web had a “heightened subjective expectation of privacy.” With that in mind, she claimed that police seeking a warrant now faced a hurdle since IP addresses on the dark web are anonymized, and wondered how courts would deal with privacy-based concerns about IP addresses “protected by a layer of encryption.” Conrod speculated that the Supreme Court, when deciding Spencer, likely didn’t “contemplate the evils of the dark web.” 

The dark web in Canada conclusion

There’s little doubt about how the dark web can be used for all kinds of criminal activity, allowing malevolent actors to anonymously conduct their rogue business online. But Canada and most democratic countries around the world haven’t outlawed its use, which by its very nature as an encrypted and decentralized network, might be impossible at worst and at least impractical, for now anyway. 

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