Entries categorized as ‘Uncategorized’
On October 2nd, Pringle J. of the Ontario Court of Justice held that the police violated section 8 of the Charter by obtaining the identity of an individual suspected of possessing and sharing child pornography by making simple letter request to an ISP. She also admitted the evidence despite the Charter breach, and in doing so made some significant comments about the impact of terms of service on internet user privacy.
There have been a number of recent Canadian cases about whether the police can investigate internet crime by asking an ISP to reveal the identity of the individual linked to an IP address that is associated with unlawful and anonymous activity. The cases turn on whether this investigatory tactic violates a reasonable expectation of privacy. Two factors have featured strongly in the analysis (1) the nature of the information obtained by the police and (2) the contractual terms between the individual and ISP.
Unlike some other judges who have decided the issue, Justice Pringle held that the nature of the information obtained by a police request to an ISP does go to an individual’s biographical core. She explained that this tactic allows the police obtain the identity of an otherwise anonymous internet user and not simply an ISP subscriber’s name and address:
Once the police accessed Mr. Cuttell’s name and address, they were able to link his identity to a wealth of intensely personal information. Linking his name to the shared folder under his IP address, police learned a great deal about Douglas Cuttell and his lifestyle: namely in this case, his interest in adult pornography, obscenity and child pornography, which were all revealed by his choice of shared files.
Pringle J.’s treatment of the contract is even more significant. Like other judges before her, she held the that a contract between the ISP subscriber and ISP can negate an otherwise reasonable expectation of privacy. In the case before Pringle J., however, the Crown did not prove the specific contract entered into between the defendant and his ISP and therefore failed to negate what Pringle J. called a “premise of confidentiality” regarding one’s ability to engage in anonymous internet use. Her judgement suggests that reliance on ISPs alone does not negate an otherwise reasonable expectation of privacy in anonymous internet use, but the specific terms of service an individual agrees to may change this.
Ultimately, ISP terms of service did have a significant influence on the outcome in this case even though the Crown failed to prove the defendant’s specific contract. Pringle J. decided to admit the impugned evidence despite the proven Charter breach, in part, because ISPs often put customers on notice that they will make disclosures to law enforcement. She said:
I also take into account that while the privacy of subscriber information is important and can provide a critical link to personal information, a subscriber name and address does not have a great deal of intrinsic privacy on its own. As the Crown pointed out, Mr. Cuttell’s name was publicly available on Canada411, and his shared folder was also publicly available to anyone wanting to share child pornography. Many Internet Service Providers appear to contract out of their obligation of confidentiality with subscribers in similar circumstances, and accordingly it would be difficult to argue that there is a high expectation of privacy in this information: see Grant at para. 77.
In conclusion, Pringle J. said that the practice of contracting for disclosure is “unfortunate,” but also suggested that the courts will often be powerless to grant a Charter remedy in the face of such private action.
Thanks to David Fraser for breaking the news this case. For his related opinion piece on Slaw, click here.
R. v. Cuttell, 2009 ONCJ 471 (CanLII).
Categories: Search and seizure · Uncategorized
Today, the Ontario Court of Appeal allowed an appeal of a noteworthy case about breach of privilege by the Crown.
The case involves an investigation report prepared at the request of external legal counsel after a critical injury for which Occupational Health and Safety Act charges were ultimately laid. An employee who was given a draft of the report on the undertaking he destroy it gave a copy to the Crown. This was after the company had asserted privilege to the Ministry inspector, who had agreed not to order the report’s production.
When the Crown disclosed the report to the company in its Stinchcombe production the company immediately objected, and at trial moved before a justice of the peace for a declaration (that the report was privileged) and a stay. It initially succeeded in obtaining a declaration, a stay and an order for $38,000 in legal costs. On appeal to a judge, the Court overturned the stay and the costs order. It held that the proper remedy for breach of the defendants’ section 8 rights was an order excluding the report and that the motion for a stay based on prejudice to trial fairness was premature.
In allowing the appeal, the Court of Appeal started by minimizing a statement made by the justice of the peace about the reporting being “primarily informational.” It held the lower court had found the report was subject to solicitor-client privilege and that this point was not challenged in the appeal.
The Court of Appeal then held that the presumption of prejudice endorsed by a majority of the Supreme Court of Canada in Celanese applies when the Crown comes into possession of a defendant’s solicitor-client communications:
Counsel for the Crown in this court sought to distinguish Celanese on the basis that it was a civil case in which the appellants were “attempting to utilize a civil onus to achieve a criminal result”. I reject this submission. In my view, the above cases support the proposition that when the Crown comes into possession of a defence document that is protected by solicitor-client and litigation privilege, prejudice to the defence will be presumed. The presumption, however, is rebuttable.
On the facts, the Court of Appeal held that a stay was the appropriate remedy. The basis for the finding is narrow. It stressed that the justice of the peace had made a specific finding that the report set out items that could be used to the disadvantage and prejudice of the defendants and held that the Crown had not led any evidence about its distribution and use of the report to rebut the inference.
R v. Bruce Power, 2009 ONCA 573.
Categories: Privilege · Regulatory powers · Search and seizure · Uncategorized
On June 30th, the Nova Scotia Supreme Court issued a judgment in which it dismissed a motion for production of documents. Though a routine motion, the Court’s reasoning may demonstrate a more modern approach to production in civil disputes, and one arguably invited by the pending changes to Ontario’s Rules of Civil Procedure.
The plaintiffs brought a motion for production in furtherance of their action against an investment dealer and an individual investment advisor. They sought documents pertaining to complaints brought by other clients against the advisor based on a claim that the dealer failed to supervise the advisor. The Court applied the “semblance of relevance” test called for by Nova Scotia’s now-replaced Civil Procedure Rules and held that the records should not be produced. Though it framed its analysis as being about relevance, the Court clearly weighed the relative value of production against its impact on non-party privacy:
In my view, the documents pertaining to other clients’ trading accounts handled by Mr. Bagnell under Mr. Youden’s supervision fail to meet the test of relevancy. Similar act evidence of this sort has little probative value to an examination of the handling of the plaintiffs’ trading accounts and in my opinion, is not necessary for disposing fairly of the proceeding. The subject allegation of inadequate supervision, whether framed in negligence or as a breach of fiduciary duty or breach of contract, will require the court to determine the appropriate standard of care and/or scope of fiduciary duty owed to the plaintiffs. That is going to be informed largely by evidence of industry standards and practices, the workplace manuals of RBCDS pertaining thereto (which already have been produced), the contract between the parties, and perhaps the introduction of expert opinion evidence. How Mr. Youden supervised the trading accounts of other clients of Mr. Bagnell would have little probative value in this determination, especially where different clients often have different investment objectives and risk tolerances in their trading activities. I am simply not persuaded that the production of these records would likely lead to the discovery of admissible evidence in this action…
The second reason for denying this application is based on confidentiality concerns. If the documents sought were ordered to be produced, there would be some unknown number and identity of other clients whose personal financial affairs would now be disclosed in this litigation, unbeknownst to them. Personal financial information is a very private and sensitive subject to most individuals. While I recognize that the implied undertaking rule would offer some protection, confidentiality concerns nonetheless remain and in the absence of any compelling argument of relevance such that the production of these documents is necessary for disposing fairly of the proceeding, those confidentiality concerns become an added reason for the dismissal of this application.
This is arguably the type of reasoning that will be invited when Ontario’s new Rules of Civil Procedure come into force on January 1, 2010. The landmark changes to the Rules will be brought in by O. Reg 438/08. This amending regulation will establish proportionality as a governing principle for interpreting the Rules, establish bare relevance as the threshold for production and establish a list of factors that a judge or master should consider in making discovery-related orders. The amendments do not expressly contemplate protection of non-party privacy as a relevant factor, and the impetus to the Rule changes (the Osborne Report) is primarily about affordability of civil justice as between parties to litigation. The changes do, however, invite a more nuanced approach to civil production, and the balancing of non-party privacy interests reflected in this Nova Scotia case may become more common.
MacGowan v. RBC Dominion Securities Inc., 2008 NSSC 421.
Categories: Law of production · Privacy and litigation · Uncategorized
Tagged: ontario civil procedure, proportionality
Here are my recent links of note from June 22nd.
If you’re interested in the law relating to corporate e-mail systems, be sure to check out Stengart v. Loving Care Agency Inc., linked through the fifth bullet below. It’s a New Jersey case about whether an employee waived privilege in solicitor-client communications by sending them through a personal internet-based e-mail account on a work computer. The e-mails were recovered by the employer, who claimed it could use them in post-employment litigation with the employee. The Court makes some extremely strong statements against employer control over “personal” communications on work systems – some of the strongest I’ve read.
I find the reasoning in Stengart troubling, but am withholding an opinion pending further thought. What’s immediately remarkable to me, however, is how value-laden these e-mail judgements are. Try reading the Alberta Court of Appeal’s recent Poliquin decision and Stengart back-to-back and you’ll see what I mean. This is not good in my view. As a management side advisor and advocate I’m not inclined to promote the enactment of privacy legislation, but if we are going to have enforceable privacy rights, enacting good and balanced privacy legislation might be a way to make such rights understandable. Without predictability, policy-making will be difficult and litigation of reasonable positions might be prohibited by risks that cannot be controlled. These thoughts to be continued at a later date.
On a personal note, Seanna and I are new parents of Penelope Green Robinson. She was born two days ago and is very healthy. “Green” is from Joni Mitchell’s song “Little Green” – a lovely (though sad) song about a mother’s love for child. Here’s a pic of PG and her brother Bug, who has been very welcoming. As for me, I’m feeling very grateful for my family and for the wonders of life.
See ya!
Dan
Categories: Information Roundup · Privilege · privacy tort
Tagged: e-mail law
Yesterday, the Ontario Court of Appeal held that a police service lawfully disclosed information about an individual’s withdrawn criminal charges in the course of administering background checks.
The applicant, a social services worker, was charged with four counts of sexual assault and four counts of sexual exploitation. At trial, the charges were withdrawn and the applicant entered a peace bond. The applicant was later denied a license for a group home, denied employment and terminated from employment, assumingly based on information provided after conducting a vulnerable persons search. In response, he brought a successful application for an order to have information about the withdrawn charges expunged from police records.
The Court of Appeal held that the applications judge erred to the extent that he found that the applicant did not give specific consent to the disclosure of the withdrawn charges. The Court held that consent to disclose this information could be inferred in the circumstances even though the written consent form did not expressly refer to withdrawn charges. This essential finding is illustrative but fact-based. More broadly, however, the Court also found that the consent was not invalid because it was coercive. It said the following about the fairness of background checks:
The fact that a person effectively must consent to a Vulnerable Persons Search in order to apply for certain types of jobs may be perceived as coercive and, in that way, possibly unfair. In regards to this alleged coercion, the affidavit evidence in this case indicates that these searches are necessary in order to give prospective employers involved with vulnerable persons all potentially relevant information about potential employees, within the bounds of the permissible disclosure of personal information under MFIPPA. Also, in a case where withdrawn charges which were false are disclosed, the potential employee has the ability to explain the circumstances to the proposed employer.
The Court also rejected arguments that the disclosure breached the applicant’s rights under sections 7 and 8 of the Charter.
This highlights the vulnerability of individuals in Ontario who are charged of criminal offences but not convicted given the recent finding by the Human Rights Tribunal of Ontario that the “record of offences” protected ground does not protect persons only charged with offences. See de Pelham v. Mytrak Health Systems, 2009 HRTO 172 (CanLII). [Addendum: A contact has told me the complainant in de Pelham has stated his intent to file an application for judicial review.]
Tadros v. Peel (Police Service), 2009 ONCA 442.
Categories: Employee privacy · Uncategorized
Tagged: background checks, criminal background checks, hiring employees
We’ve published or Privacy Post caselaw digest, covering relevant developments in Canadian information management and privacy law. The link is here. And the following is our lead-in.
So what’s new?
Much has been said about Leduc v. Roman, the case in which Mr. Justice Brown of the Ontario Superior Court of Justice granted leave to cross-examine a plaintiff in a motor vehicle accident suit about the nature of content he posted on his Facebook profile. This is the second Ontario case in which a judge has shown little appreciation for an argument that information .posted in a “friends only” section of a social networking profile page should be treated as private in considering the appropriateness of production. Leduc is significant, but there are a number of other decisions we’ve reported that also demonstrate an intensifying new dialogue on the law of production and personal privacy. If you’re interested in this subject, Warman v. Wilkins-Fournier (on anonymous internet use) and British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd. (on non-party participation rights) are worth a read.
We’ve also covered the numerous recent “lawful access” cases – cases in which criminal defendants have argued that their Charter right to be free from unreasonable search and seizure has been violated because police have requested and obtained information from organizations to further an investigation, without seeking a warrant. For what these cases mean to employers, please see our recent client bulletin, Pretty Please: Police requests for employee personnel files.
Please check it out and enjoy!
Categories: Uncategorized
I’m not sure where it’s written that May/June is prime time for continuing education conferences, but it sure seems to be that way. Here’s my schedule of public appearances over the period.
- “Best Practices for Document Retention and Destruction,” at The Canadian Institute”s Meeting Your Privacy Obligations conference – May 27 & 28 in Toronto. I plan to present broadly on “The Anatomy of a Retention Rule” and deal with privacy and regulatory compliance, risk management, production-related issues and other practical considerations. Looks like a very solid lineup, with commissioners Jennifer Stoddart and Frank Work and privacy lawyers and bloggers David Fraser and Brian Bowman on the roster.
- Workplace Privacy segment at the OBA’s Hot Topics in Privacy Law - Morning of June 8 in Toronto. This program has a segment on privacy breaches then a series of rapid-fire presentations, mine on workplace privacy. I have ten minutes to present three important ideas relating to e-mail investigations, audits and surveillance.
- “E-mail as Evidence” at Osgoode PDP’s Obtaining, Producing and Presenting Electronic Evidence – June 11 & 12 in Toronto. Thrilled to be co-presenting with John Gregory on this one. We’re meeting soon to prepare, but the session billed has a focus on e-mail management.
- Pre-conference workshop at the Canadian Association of College and University Student Service’s annual conference – June 14th in Waterloo. This is billed as a case law update relating to student discipline and related issues, but I’ll strive to keep the discussion practical. I did this session two years ago and focused on information management, threat assessment and the duty of care. We had a great discussion and I hope to facilitate the same this time around. It’s always a pleasure to engage with student services administrators, whose skills in making practical judgement calls are tested day-in and day-out.
I’m looking forward to meeting people and advancing my thoughts this conference season. Please browse these programs and consider signing up. And if you’re attending (or even if not) and have any questions, issues or suggestions that might help me to develop relevant content, please comment or e-mail. I’d appreciate any input you can provide!
Dan
Categories: Uncategorized
I’ve been on vacation for the last two weeks and have changed-up my reading pattern in an attempt to write a couple papers for some May/June conferences (which are soon to be promoted here). I have managed to follow the buzz on Twitter though. Here are some links in the domain you might like:
We’ve been in on Halifax’s Eastern Shore, a place which we hold dear. I got my surf fix in – with better swell than expected for this time of year – and Seanna and I managed to entertain The Bug and ourselves with good daily activities and meet-ups with awesome local friends. Here are a few pics of the highlights.
See ya!
Dan
[2 pics deleted - sorry!]
Categories: Information Roundup · Uncategorized
Yesterday the Supreme Court of Canada issued its judgement in R. v. Patrick. It unanimously held that the police did not violate an accused person’s right to be from unreasonable search and seizure by seizing information:
- mixed in with garbage…
- in opaque garbage bags…
- inside garbage cans without lids…
- that were placed in an open receptacle…
- on the accused individual’s property.
The case is about the concept of abandoning one’s subjective expectation of privacy. In a memorandum written by Binnie J., the six-judge majority framed the test for abandonment as follows: ” The question is whether the claimant to s. 8 protection has acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of the circumstances.” The majority held that this test was satisfied in the circumstances, taking special note of the identifying information that would be mixed-in with the accused individual’s household garbage long after the “bag of information” itself was no longer sitting outside of his home:
Clearly, the appellant intended to abandon his proprietary interest in the physical objects themselves. The question is whether he had a reasonable continuing privacy interest in the information which the contents revealed to the police. There was some discussion at the bar that a privacy interest does not cease until garbage becomes “anonymous”, but as Conrad J.A. noted, much garbage never becomes anonymous, e.g. addressed envelopes, personal letters and so on. In this case, the garbage included invoices for the purchase of chemicals used in the preparation of the drug Ecstasy. The idea that s. 8 protects an individuals’s [sic] privacy in garbage until the last unpaid bill rots into dust, or the incriminating letters turn into muck and are no longer decipherable, is to my mind too extravagant to contemplate. It would require the entire municipal disposal system to be regarded as an extension, in terms of privacy, of the dwelling-house. Yet if there is to be a reasonable cut-off point, where is it to be located? The line must be easily intelligible to both police and homeowners. Logically, because abandonment is a conclusion inferred from the conduct of the individual claiming the s. 8 right, the reasonableness line must relate to the conduct of that individual and not to anything done or not done by the garbage collectors, the police or anyone else involved in the subsequent collection and treatment of the “bag of information”.
This reasoning limits the impact of the majority judgement. It is about the reasonableness of asserting an expectation of privacy after disposing of household waste in a manner that leaves it identifiable. The outcome may have differed if the accused individual had shredded his bills and other identifying information.
At the same time, the majority did make some more principled comments about the right to be free from unreasonable search and seizure. Here are two other “quotables”:
- On the perspective from which section 8 disputes are assessed: “Privacy analysis is laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long‑term consequences of government action for the protection of privacy.”
- On whether one can have an interest in information that reveals criminal activity: “A warrantless search of a private place cannot be justified by the after-the-fact discovery of evidence of a crime.”
Abella J. wrote a concurring opinion on her own. She held that the accused individual had a reduced expectation of privacy in the circumstances, but that this expectation was sufficient to warrant intrusion based on the “reasonable suspicion” standard. She stressed the sensitivity of the personal information contained in household waste and, unlike the majority, noted that the manner in which household waste is disposed is not entirely voluntary.
For more, see David Fraser’s comment here. David’s comment also raises the issue of voluntariness.
R. v. Patrick, 2009 SCC 17.
Categories: Uncategorized
Hello! I’ve been working hard in anticipation of a vacation, but have still had some time to poke around the net and do some reading within the information and privacy domain. Here’s a sampling of my Twitter stream from the last week.
The last bullet links to a very thorough article on the Canadian law of spoliation by Julius Melnitzer. He quoted me on the Black & Decker spoliation case and on my view that the Canadian law of preservation has a long way to go before it offers counsel with guidance. Black & Decker is great, and does does a nice job of explaining the difference between spoliation as an evidentiary principle, a check on abuse of process and a tort. As the Court notes, however, a positive duty to preserve evidence has not yet been recognized in Canada. Does this mean we Canadians can throw caution to the wind when it comes to records preservation? Hardly! It does mean that good articulation of standard of care for preservation of records in Canada is a way’s off. Until then, we should all remain vigilant and look to non-jurisprudential authority like the Sedona Canada Principles in managing the challenging issues associated with preservation.
Had a beautiful day hanging with The Bug today while Seanna was supporting her client Endurosport at the Around the Bay 30K. Captured Hugo mind-surfing a wave. Like father like son.
See ya!
Dan
[pic deleted - sorry!]
Categories: Uncategorized
