All About Information

In a judgement released today, the Ontario Court of Appeal interpreted the section 2(3) application provision of the Municipal Freedom of Information and Protection of Privacy Act and held that the City of Toronto Economic Development Corporation is deemed to be part of the City of Toronto for the purposes of the Act.

TEDCO is an OBCA corporation that is wholly owned by the City.  The City appoints all TEDCO directors, who in turn elect or appoint all TEDCO officers pursuant to a by-law.  The Court held that all of TEDCO’s officers are “appointed or chosen by or under the authority” of the City as contemplated by section 2(3).  It based its decision on the ordinary meaning of the word “authority,” the purpose of access to information legislation and the non-technical character of the language used in section 2(3) - marked by the phrase “appointed or chosen.”

While the judgement is confined in its significance, the Court’s reasoning on non-technical language supporting a non-technical interpretation of other proximate language seems worth a note to self.

City of Toronto Economic Development Corporation v. Information and Privacy Commissioner/Ontario, 2008 ONCA 366.

Here are a couple links for this week.  The second article is a must-read for those who are interested in the privacy issues raised by Web 2.0.

• Floyd Abrams, “Foreign Law and the First Amendment.” An op-ed on how the British law of defamation values free expression less than American law and supportive of current American legislative initiatives to give courts the jurisdiction to grant declarations that certain speech is protected under American law.  Our own law on this question is arguably in flux after the Ontario Court of Appeal’s decision in Cusson v. Quan, on which leave to appeal to the Supreme Court of Canada was granted in early April.  (Wall Street Journal)
• Hal Niedzviecki, “The Spy Who Blogged Me.”  This is an excellent article from this month’s edition of The Walrus.  Mr. Niedzviecki argues that we don’t balk at surveillance because it is now “woven into the fabric of our culture,” a phenomenon he says is partly due to what television has told us about a the benefits of a new type of celebrity that is accessible to the average Joe and Jane.  He speaks with our federal Privacy Commissioner Jennifer Stoddart about self-surveillance and peer surveillance, and through the dialogue you get the impression that Ms. Stoddart’s significant tool - the Personal Information Protection and Electronic Documents Act - misses the most complex and significant privacy challenges that we face today.  As Mr. Niedzviecki says, “The rules don’t apply to the multitudes of cellphone-camera-pointing bloggers, social networkers, YouTube uploaders, and nanny cam enthusiasts - you have to sue.”  (The Walrus)

What a great weekend here.  Even the rain on  Saturday made for a cozy afternoon.  Possibly even better because I decided to purge the backlog of materials in my RSS reader.  Kind of liberating eh?

Enjoy!

The Ottawa Citizen published an article today called “Lessons to learn” on the student-university duty of care as a follow-up to the Nadia Kajouji suicide at Carleton University.  Pauline Tam does a very good job of going deep into some of the complexities, and even received some input from American expert Peter Lake.  I’m also quoted on the duty of care issue and the limits of privacy law.  

As Anne Cavoukian has recently written in response to some commentary on the Carleton suicide, privacy law is not absolute. From how I was quoted it’s not exactly clear what the precise standard for disclosure is and, in fact, there are two standards for “health and safety” disclosures under Ontario law.  Under FIPPA - which governs personal information a university or college manages in its ordinary administration - there is a “compelling circumstances” standard. Under PHIPA - which governs health care relationships, including health care services provided by universities and colleges - the standard is higher, essentially a “serious and imminent” harm standard.  

One of the things that has been lost in some of the recent commentary is that there are two different standards, the latter standard creating a special and important “zone of privacy” within which a health care relationship is situated.  There’s very good reason for this. After all, we want students at risk and others who need care to seek treatment, and a strong guarantee of confidentiality is a necessary, indeed fundamental, part of making treatment accessible.  Outside of health care (think of information known by a residence don, faculty members or members of the administration) the standard for disclosing information to prevent harm should be taken seriously, but is lower and should be lower.  

I’ve spoken and written recently about the need for objective threat assessment procedures to balance the duty to provide a safe campus environment against the duty to protect individual privacy.  For more on my view see this post here and its attachments.

Case analysis takes time, and my aim with this blog is typically to limited to posting case reports as timely and accurate news, and in a way that situates cases in their practical context. I also write predominantly for our base of institutional clients, who tend to want the bottom line and (surprise) represent institutional interests.

I blogged about the basic meaning of the Supreme Court of Canada’s sniffer dog cases last week. While I met my measure of success, two superior comments have been published this week by academics that you should read if you’re interested in going deeper into their subject matter.

James Stribopolous, an Osgoode Hall professor, situates the case in the context of the evolving law on ancillary police powers. Ian Kerr, who holds the Canada Research Chair in Ethics, Law and Technology, focuses on the other key aspect of the judgements - the search aspect. He’s critical of the outcome of the cases for their “reductionist” approach to assigning value to the information captured by a dog sniff - an approach which led the majority to a lesser standard for legality than “reasonable cause” and an approach that Mr. Kerr feels raises the spectre of increased surveillance by law enforcement based on new technologies.

Enjoy!

On April 17th, the Federal Court of Appeal rejected an application for a stay of an order that requires eBay to provide the Minister of National Revenue with the names, basic account information and gross annual sales of eBay’s Canadian resident “PowerSellers” for 2004 and 2005.

The information was ordered to be produced under the authority of section 231.2 of the Income Tax Act, which authorizes third-party production orders that allow the MNR to seek information about persons or ascertainable groups of persons where the order is made to verify compliance with the ITA.  After last November when the Federal Court of Appeal held in Greater Montreal Real Estate Board that this provision did not require the MNR to establish that each and every one of the individuals targeted to be the subject of a “genuine and serious inquiry,” Hughes J. of the Federal Court affirmed the eBay production order.

The Federal Court of Appeal rejected eBay’s motion for a stay of Hughes J.’s order pending its appeal based on an application of the R.J.R.-MacDonald three-part test.  Sharlow J.’s key finding was that eBay did not prove irreparable harm. Although she acknowledged that information cannot be undisclosed, she held that harm to individual eBay account holders rather than eBay itself could not justify a stay.  This somewhat remarkable finding was despite “some material” on the record about eBay’s contractual relationship to account holders.

The record contains some material from which it could be inferred that eBay Canada has contractual obligations to eBay Inc. not to disclose certain confidential information without the consent of eBay Inc. It is not clear that the information sought by the Minister about PowerSellers is confidential information as contemplated in those contracts. Even if the information about PowerSellers is confidential information under those contracts, it is not clear that eBay Canada’s obligation not to disclose confidential information would or could be breached by the disclosure of information pursuant to a court order (even a court order that is under appeal). And, even if such a breach would or could result from such a disclosure, there is no evidence that any harm would come to eBay Canada as a result.

Coincidentally, the application for leave to appeal to the Supreme Court of Canada in Greater Montreal Real Estate Board was just dismissed on April 24th.

eBay Canada Limited v. Canada (National Revenue), 2008 FCA 141 (CanLII).

Spring has sprung in Toronto eh? We always seem to time our holidays so we totally miss the winter-summer and summer-winter transitions. If this sounds intriguing, it only takes two weeks of well-timed vacation to generate this special experience.

Here’s what I’ve been into recently during balmy evenings on the back porch.

• Craig Ball, “Time to Catch the ‘Science of Search’.” Mr. Ball addresses the importance of keyword search, the need for search expertise on a litigation team and argues that lawyers should step up. (Law.com)
• Leonard Deutchman, “Steer Clear of the Perils of Self Collection.” Mr. Deutchman writes to litigators who are advising clients who do not opt to use turn-key, professional data collection services. His article is highly relevant and highly practical. (Law.com)
• David Ardia, “Judge Quashes Subpoena to Blogger Kathleen Seidel, Orders Lawyer to Explain Justification for Subpoena.” Mr. Ardia reports on developments in the Seidel subpoena. (Citizen Media Law Project)
• Yuh-Sung Soh, “RBC Dominion Securities: Show me the Money!” Mr. Soh summarizes a departing employee case heard by the Supreme Court of Canada last Friday and that’s one to watch. (The Court.ca)
• Michael Fitzgibbon, “Blawg Review #157.” I didn’t know about the Blawg Review until reading this labour and employment carnival by long-time “blawger” Micheal Fitzgibbon. People like Michael - who points out that he’s maintained his Thoughts From a Management Lawyer blog for five years - led the way for people like me, so thank you Mike and keep up the good work! (Thoughts From a Management Lawyer)

On April 25th, the Supreme Court of Canada released two decisions involving Charter challenges to sniffer dog searches. Very briefly, R. v. Kang-Brown was about the search of an individual traveller’s luggage at a bus station based on a police officer’s observation of suspicious behavior. R. v. A.M. was about a routine sniffer dog search at a public school. In both cases, the Court found a violation of section 8 of the Charter and held that the evidence found should be excluded.

The two cases are primarily about about the legal rules for police use of sniffer dogs and, to some extent, “snooping technologies” that facilitate scanning for crimes outside of a targeted investigation.

On the key issue, the Court split 4-4, with Bastarache J. writing a swing judgement on his own. Lebel J. (with Fish, Abella and Charron JJ. on this point) held that the police have no common law authority to use sniffer dogs outside of an investigation based on reasonable and probable cause. Binnie J. (with McLachlin C.J. and Deschamps and Rothstein JJ. on this point) held that the police possess a common law power to search using sniffer dogs on the basis of a Charter compliant standard of “reasonable suspicion.” Bastarache J. held that the police posses a common law power to search using drug sniffer dogs on the basis of a Charter compliant standard of “generalized suspicion.” Bastarache J. also endorses the reasonable suspicion standard, so it appears the police may continue to use sniffer dogs without statutory enactment based on the reasonable suspicion standard.

Police powers and Charter constraints - reasonable suspicion standard prevails

On the main issue, A.M. is a better example of what was at stake. Binnie J. characterizes the sniffer dog search in A.M. as one used in a “routine criminal investigation.” Calling what happened in A.M. an “investigation” seems a slight misnomer because there was really no crime under investigation at all. The sniffer dog search was used by the police in A.M. as a type of surveillance tactic, with its purpose rooted in keeping the peace and preventing crime. “Routine criminal inspection” might be a more accurate description of how sniffer dogs were used in A.M., though the word “inspection” is ordinarily used to describe regulatory rather than police activity.

This was the problem. In fact, a concern about the use of search powers for keeping the peace (as opposed to investigating crime) arguably drives Lebel J.’s judgement. In both cases, he held that the police only have a common law power to engage in a search that is based on reasonable and probable cause. Although he does not reject the permissibility of search powers for purposes that will naturally involve less targeted suspicions, he says that such policing powers ought to based in statute, not the common law.

Binnie J. held that a requirement for reasonable and probable cause would render a longstanding law enforcement tool unusable, so the Court ought to recognize the power and subject the reasonable suspicion standard to Charter scrutiny. In Kang-Brown, he said:

… the “leave it to Parliament” approach ducks a practical and immediate problem facing law enforcement. Sniffer dogs have been in common use by police forces in Canada for the last 30 years or more. If the police have lawful authority to use sniffer dogs only when they already have reasonable grounds to believe contraband is present, sniffer dogs would be superfluous and unnecessary, i.e. because ex hypothesi the police already have the grounds to obtain a search warrant and would not require the confirmatory evidence of a dog.

He held sniffer dog searches are Charter compliant when they meet the reasonable suspicion standard, characterizing a search with a well-trained and accurate dog as relatively unintrusive.

While Binnie J. states in Kang-Brown that the reasonable suspicion standard contemplates a suspicion “in relation to one or more members of a group of people closely linked in proximity to the crime,” in both cases Bastarache J. endorses a standard that is de-linked from individuals - the generalized suspicion standard. He says this standard is justifiable in environments such as public terminals and schools where there is a reduced expectation of privacy. In Kang-Brown, he explains:

In my view, it is, in some circumstances, appropriate for police to conduct random searches using sniffer dogs on the basis of generalized suspicion. Allowing this type of search recognizes the important role sniffer dogs can play not only in detecting crime but also in preventing and deterring crime. Given the accuracy and efficiency of sniffer-dog searches, it is reasonable to conclude that their known presence, or potential presence, at particular locations would have a significant preventative effect. Allowing random searches in certain situations also has the benefit of avoiding inappropriate profiling and reducing any embarrassment which may be associated with a targeted search. I agree with the finding in Simmons that there is no stigma attached “to being one of the thousands of travellers who are daily routinely checked” at border crossings (p. 517), and believe that that lack of stigma results in large part from the random nature of the search process.

School searches

A.M. was not resolved in a manner that significantly alters or speaks to the law regarding searches conducted by school boards themselves. When police search schools using sniffer dogs or conduct similar premises searches, it is now clear they must meet the reasonable suspicion standard. When school officials physically search individual students, based on the Supreme Court of Canada’s 1998 decision in M.R.M., they must meet a similar relaxed standard (which Binnie J. interestingly characterizes as the reasonable suspicion standard, though that term was not used in M.R.M.). Whether school boards (acting on their own and not through the police) can engage in routine searches of school premises is not yet clear.

A.M. does not speak to a school board’s own power to search school premises because it was clear that the search under review was initiated by the police. Despite this, Deschamps J. (with Rothstein J. on this point) held that the search in question did not affect a reasonable expectation of privacy such that it engaged a section 8 right to be free from unreasonable search. She stressed the difficult challenge school boards face in maintaining safety and order, that the search was supported by policy that was known to students and parents and the relatively unintrusive nature of a sniffer dog search. The other judges’ position seems to be represented by Binnie J., who rejects Deschamps J.’s argument by stating that it fails to recognize the difference between a school board exercising its authority to maintain a safe and orderly school environment and a police search. Without endorsing routine school board searches, Binnie J. reinforces the different function of a school board and implicitly leaves open the possibility that properly constructed and executed routine or generalized suspicion searches by school boards may be lawful. School boards should nonetheless be very cautious in embarking upon any such initiatives and should seek legal advice before proceeding.

R. v. Kang-Brown, 2008 SCC 18.

R. v. A.M., 2008 SCC 19.

The Supreme Court has just dismissed the appeal in R. v. A.M., a significant decision on school searches.

The case is significant for school boards because it may involve a re-visitation of a 1997 Supreme Court of Canada case called “M.R.M.”, where a majority of the Supreme Court recognized that teachers and principals must be able to react quickly to problems that arise in schools and, hence, should have greater search powers than those enjoyed by the police.

The facts in the A.M. case are very different from those in M.R.M. The search in A.M. was a police search, not a school board search as in M.R.M., and the facts in A.M. are quite extreme because the a sniffer dog search is both random (as it pertains to individuals) and routine (i.e. there was no specific incident which gave rise to a justification for the search).

In A.M., a principal extended an open invitation to police to come onto school property and conduct sniffer dog searches. On the day in question, the police called the principal and received permission to enter the school. Students were told to remain in their classrooms while the police conducted the search. While searching a gymnasium, a sniffer dog identified “A’s” backpack. The police opened it and found narcotics and drug paraphernalia. A was arrested and charged with possession for the purpose of trafficking.

At trial, the principal admitted that he did not have any reason to believe that drugs would be found in the gymnasium. He could only testify to a general suspicion that drugs would likely be found somewhere in the school.

A Youth Justice Court judge held that A’s right to be secure from unreasonable search and seizure was violated, and this finding was unanimously upheld by the Ontario Court of Appeal. The Court of Appeal held that the search was unlawful because it was a warrantless and unreasonable police search – i.e. since the police initiated the search the lower standard established by the Supreme Court in M.R.M. did not apply. However, the Court of Appeal also stated that the search would have been unlawful if conducted by the principal himself because the Education Act does not give principals (or other school board officers) the power to conduct random searches:

As set out above, counsel for the Crown asserts that the Education Act, the provincial Code of Conduct, the St. Clair Catholic School Board Policy and the school’s zero-tolerance policy provide the authority for a warrantless search in this case. This submission is premised on the ground that the search was a search by school authorities conducted through the agency of the police. However, even if this was a search by school authorities through the agency of the police, there is nothing in the Education Act and the subsidiary policies articulated in the other documents that gives the required authority to conduct such a search.

Though the facts in A.M. are extreme and the statement above is technically obiter (meaning it was a passing comment), the Supreme Court may also choose to make a comment on a school board’s power of search and its student’s expectation of privacy.

The award is 97 pages. I’ll read it and provide a summary on the weekend.

The Ontario Superior Court of Justice issued an order setting aside an Anton Piller order on April 8^th. The judgement is another stressing the extreme burden on parties who seek such orders.

The Anton Piller was initially granted in 2006 in support of a departing employee claim that included allegations of fraud and breach of confidence. The Court it aside because the plaintiff failed to fully and frankly disclose material facts and failed to make reasonable inquiries into material facts. More specifically, it held the plaintiff:

• failed to ask customers whose business it claimed was lost or threatened due to the individual defendant’s actions whether they had been approached by the individual defendant;
• failed to disclose that a customer relationship on which it relied was responsible for only a 2% portion of its gross profit; and
• despite raising the difficulty in seeking production of the individual defendant’s MS Hotmail (which resided in the United States), failed to disclose that it had launched an action in Texas against the individual defendant’s new employer concurrently with its Ontario action, that it had sent a preservation letter to the new employer in conjunction with the action and that it had an agreement from Microsoft to retain the individual defendant’s MS Hotmail e-mails indefinitely.

The Court also criticized the execution of the order and, in particular, a search conducted of the purse of the individual defendant’s wife (also named). The Court said:

[The plaintiffs] were authorized to search for paper documents and electronic data related to Factor’s business, the business of Lanxess and Jean’s potential use of documents from Factor to promote his own and Bigler’s business interests. I question whether any of this material was reasonably likely to be found in Margaret Jean’s purse.

Also interesting, though it was neither challenged nor part of the Court’s consideration: the plaintiff discovered significant evidence of wrongdoing and determined the relevance of the individual defendant’s MS Hotmail account by installing spyware on his computer while he was employed.

Factor Gas Liquids Inc. v. Jean, 2008 CanLII 15900 (ON S.C.).

Yesterday, the Ninth United States Circuit Court of Appeals overturned much-discussed order to suppress evidence obtained in a border crossing laptop search.

The case involves a traveller named Michael Arnold, who was routinely selected for secondary questioning after returning from a three week vacation in the Philippines. A border agent turned on Arnold’s computer and discovered photos of two nude women in folders on his desktop.  She called in other officials, who then questioned Arnold and examined his computer some more, and ultimately seized the computer after finding what they believed was child pornography.  Based on these facts, in 2006 a district court judge granted Arnold’s motion to suppress on a finding that there was no reasonable suspicion for the search.

The appeal from the lower court’s order centered on whether the Fourth Amendment requires the United States government to meet a “reasonable suspicion” standard in conducting border crossing laptop searches because laptops are different than other closed containers.  The Court’s description of Arnold’s argument nicely highlights its significance:

Arnold argues that “laptop computers are fundamentally different from traditional closed containers,” and analogizes them to “homes” and the “human mind.” Arnold’s analogy of a laptop to a home is based on his conclusion that a laptop’s capacity allows for the storage of personal documents in an amount equivalent to that stored in one’s home. He argues that a laptop is like the “human mind” because of its ability to record ideas, e-mail, internet chats and web-surfing habits.

This was similar to an argument rejected by the Fourth Circuit Court of Appeals in a 2006 border crossing laptop search case called Ickes and reserved on by the Ninth Circuit Court of Appeals in a 2006 border crossing laptop search case called Romm. 

In Arnold’s case, the Ninth Circuit Court of Appeals flatly rejected the laptop argument as contrary to United States Supreme Court jurisprudence, which it read as weighing against any analysis that would differentiate between the types of property searched at border crossings.  In short, it held that property is property. It also held that Arnold had not adduced any evidence to support a finding that the search fit within the “exceptional damage to property” or “particularly offensive manner” exceptions to the United States government’s broad power to search property at its borders.

Law.com reports that an appeal may be in order.

United States v. Arnold, 08 C.D.O.S. 4533.