Archive | September, 2011

Does Criminal Responsibilty Still Require a “Guilty Mind”?

27 Sep

Here‘s a thought-provoking article from the Wall Street Journal on the increasing number of offences, under U.S. criminal law, which do not require the state to prove that the accused had mens rea, or a “guilty mind”.  It is somewhat surprising that this development should occur in the United States – birthplace of the Bill of Rights, which has inspired constitutional protection of citizens’ fundamental legal rights in liberal democracies around the world.

Canadian jurisprudence provides an interesting contrast to the recent U.S. experience.  Ever since the Supreme Court of Canada’s decision in R. v. Sault Ste. Marie, which predated the Canadian Charter of Rights and Freedoms, Canadian courts have recognized three different categories of criminal or regulatory offences:

1) “true criminal” offences, which require proof of criminal intent beyond a reasonable doubt;

2) strict liability (or “public welfare”) offences, where it is open to the accused, once the prohibited act has been proven beyond a reasonable doubt, to avoid liability by proving that she or he exercised all due care to avoid the infraction; and

3) absolute liability offences, where proof of the prohibited act automatically results in conviction, without regard to the accused’s intent.

In subsequent decisions following the adoption of the Charter, the Supreme Court has provided further guidance on the state’s ability to create offences which do not require proof of criminal intent.  In Re B.C. Motor Vehicle Act, the Court found that an absolute liability offence which included the possibility of a prison sentence was contrary to the principles of fundamental justice guaranteed by s. 7 of the Charter.  However, in R. v. Wholesale Travel Group, the Court found that strict liability offences, as recognized in R. v. Sault Ste. Marie, are consistent with the Charter, even though they place a reverse onus on the accused to establish due diligence.

Canadian jurisprudence has struck a balance between requiring the state to prove a guilty mind in the case of true criminal offences, and allowing a reverse onus, or even absolute liability in some cases, for regulatory offences designed to protect public welfare, many of which regulate workplace activities.

Time will tell how U.S. courts reconcile the development of offences which do not require proof of a “guilty mind” with the protections of the Bill of Rights.

British Columbia Arbitrator Says Collection of Motor Vehicle Records Unreasonable

25 Sep

On August 12th, British Columbia Arbitrator Heather Laing declared unreasonable a driving safety program that entailed the annual collection of motor vehicle records to identify and address high risk drivers.

Arbitrator Laing held that the program engaged employee privacy rights and that the employer – whose vehicle incident record was actually improving – had not justified its use in light of less intrusive options for maintaining and improving driving safety (such as skills training). She distinguished Ontario Arbitrator David McKee’s recent Union Gas cases as dealing with access to Ontario driver abstracts, which are available to the public without consent.

This case will be upsetting to employers for its suggestion that employers need to prove a safety problem to justify any collection of personal information. Arbitrator Liang finds that the non-public nature of British Columbia motor vehicle records (which include height, weight and 5-year driving record information) is significant, but does not analyze the meaning of the information itself in making a reasoned conclusion about “sensitivity.” There is ample Charter jurisprudence that establishes the driving public sacrifices a great deal of privacy in exchange for the privilege operating a motor vehicle on public roadways that weighs in favour of “non-sensitive” finding. Collection of use of non-sensitive employee personal information for bona fide safety-related purposes should not be unreasonable.

Spectra Energy v. Canadian Pipeline Employees’ Assn. (Motor Vehicle Record Grievance), [2011] C.L.A.D. No. 266 (H. Laing) (QL).

Law Firm Publication Draws Damages Award for Breach of Privacy

23 Sep

On September 13th the Federal Court ordered a law firm to pay $1,500 in damages for publishing an Office of the Privacy Commissioner of Canada decision letter and report of findings that contained an individual’s personal information.

PIPEDA allows some publicly available information to be used and disclosed without consent, including:

personal information that appears in a record or document of a judicial or quasi-judicial body, that is available to the public, where the collection, use and disclosure of the personal information relate directly to the purpose for which the information appears in the record or document

The OPC arguably does not act as a judicial or quasi-judicial body in investigating privacy complaints nor are its decision letters and reports public, so the law firm could not rely on this exception.

Though the “related directly to the purpose” requirement is narrowing, law firms are more open to using and disclosing personal information contained in published court and tribunal awards in their publications. The OPC’s recently-published PIPEDA and Your Practice guideline for lawyers nonetheless establishes an anonymization “best practice”:

Ultimately, lawyers should be conscious of limiting the disclosure of any personal information they may have. As a best practice, lawyers preparing newsletters or giving presentations at conferences should give thought to anonymizing or deidentifying personal information in any case law or resources they rely on. Most times, the identity of an individual need not be disclosed in order to explain the legal reasoning underlying a decision.

Does your firm have a protocol in place to address this?

Here’s David Fraser’s post on the case. (David, you’re fast man!)

Girao v. Zarek Taylor Grossman Hanrahan LLP, 2011 FC 1070.

Municipal Finance Officers’ Association – Managing Social Media Risks

22 Sep

A big thanks to the Municipal Finance Officers’ Association of Ontario, who invited me to speak today on managing social media risks. A presentation to a knowledgeable and engaged audience, a lunch at Blue Mountain and four hours in the car listening to e-discovery podcasts and loud Foo Fighters makes for a good day! Slides below.

Ontario Biometric Timekeeping System Jurisprudence now Strongly Favours Employers

20 Sep

On August 29th, another Ontario labour arbitrator dismissed a biometric timekeeping system grievance. Arbitrator Susan Tacon dismissed the grievance on some rather strong evidence adduced by the employer, but did make the following general comment about the very conservative IKO Industries case (which the Ontario Superior Court of Justice – Divisional Court upheld as reasonable):

With respect, I also do not find the reasoning in IKO Industries, supra, compelling. The standard for establishing an “invasion” of privacy is set so low and the business rationale must be so critical to the company that no other system is possible. The test really espoused in IKO Industries, supra, is that any infringement of privacy, however minor, will outweigh a legitimate business rationale which is not essential to the continued operation of the company. In my view, that approach undermines the concept of proportionality, unduly weakens the management rights clause in practical terms and is not consistent with the weight of the arbitral jurisprudence. In any event, for reasons which will be given infra, the decision is distinguishable on the facts.

The weight of arbitral authority in Ontario now strongly favours the adoption of biometric timekeeping systems provided the chosen system has a number relatively common security features to protect against misuse and secondary use of biometric data and provided the chosen system does not invite a violation of any uniquely restrictive collective agreement terms. Employers who run through the security-related considerations with a checklist-like tool and seek input from counsel on the effect of their collective agreements will gain a very strong appreciation of the risks associated with adoption. In many cases, employers will be safe to proceed.

Gerdau Ameristeel v. United Steelworkers, Local 8918 (Biometric Scan Grievance), [2011] O.L.A.A. No. 405 (Tacon) (QL).

Well-Litigated Background Check Dispute Sent Back to the B.C. OIPC

19 Sep

On September 6th, the British Columbia Supreme Court allowed a judicial review application of a finding that the British Columbia Ministry of Children and Family Development breached British Columbia FIPPA by failing to make every reasonable effort to ensure the accuracy of personal information before using it to answer an background check inquiry.

This is a very well-litigated dispute about a communication made by the Ministry to a social services employer who contacted the Ministry, with consent, to check into the background of a new employee. The Ministry disclosed the existence of a complaint made against the employee. It also noticed some irregularities in its file, did a full review of the file (without going behind the file to make inquires) and rendered an opinion to the employer that the employee needed to be supervised when in contact with children.

The employee was terminated and has since been on a long campaign to seek redress. In May 2010, the British Columbia Court of Appeal dismissed the employee’s $520 million action against the Ministry and others as disclosing no reasonable cause of action. About a year earlier, the Court of Appeal heard an appeal of the employee’s privacy complaint and sent it back to the B.C. OIPC so the OIPC could consider whether the Ministry breached section 28 of B.C. FIPPA. Section 28 imposes a duty to make every reasonable effort to ensure the accuracy of personal information that is used to make a decision that directly affects an individual.

In reconsideration, the OPIC affirmed the employee’s complaint. It held that the Ministry had made a “decision” that engaged the section 28 duty and held that the Ministry had failed to make every reasonable effort to ensure the accuracy of the employee’s personal information. The OIPC explained:

In this matter, the evidence is clear that the social worker made no effort, let alone every reasonable effort, to ensure the accuracy and completeness of the information she relied upon to come to her interim decision recommending Mr. Harrison not be left alone with youth in his workplace. Her opinion was based in part on her belief that the matter had not been “properly” investigated. Yet she did not make a single inquiry of any one of the several Ministry employees who had had dealings with Mr. Harrison over the previous decade. To compound matters, she admitted that, when she made her recommendation concerning Mr. Harrison, it had been more than twenty-four years since she had worked in the field of child protection. This decision, based on allegations determined at the time to be without substance and warranting no further investigation, has led to consequences that cannot be remedied. …

In addition, it is not clear to me whether the Ministry has a strategy, policy or process dealing with the management of files concerning unsubstantiated or worse, uninvestigated, allegations of sexual (or other) abuse. It is however clear that those who have been subjected to the latter are in an unenviable situation in which there can be no successful outcome. Since no investigation ever takes place, the veracity of the allegation is not conclusively resolved. Yet no further investigation will ever take place, frustrating closure to the matter and leading to the possible loss of reputation or other harm.

The Court held that the OIPC erred by rendering its decision without considering the public interest in disclosure about potential threats to children and the Ministry’s duty to protect children under the CFSCA. It referred the matter back to the OPIC for resolution.

Harrison v. British Columbia (Information and Privacy Commissioner), 2011 BCSC 1204 (CanLII).

Alberta Court Lends Constitutional Protection to the “Cyber-Picket Line”

12 Sep

The Alberta Court of Queen’s Bench issued a remarkable privacy decision on June 30th that didn’t get much attention until David Fraser posted about it last week. (Thank you David.) Madam Justice Goss of the Court held that Alberta PIPA violates section 2(b) of the Charter because it doesn’t give organizations wide enough latitude to record and disseminate images of people at public social or political events.

Picketers often employ video cameras and still cameras, a practice thought by some to be a form of intimidation. In this case, there was evidence of a union communication that stated it would post images on a website called “www.casinoscabs.ca” and evidence that the union had used images to attack individuals in a manner described in the Alberta OPIC order under review as follows:

As well, exhibits were entered showing that images of this Complainant’s face were included (which he stated was without his consent) in issues of the Union’s newsletter or strike leaflets, in one case superimposed over the head of a person driving a miniature train, associated with text which began “There goes [the Complainant] with his train full of scabs”, and in another case, superimposed onto a turkey. In a third image, in which Complainant C is seen leaning over a railing gazing down at the floor below, the associated text begins: “What is [the Complainant] thinking? Is it jumping? …” and continues with other comments related to the strike and the Complainant’s possible thoughts.

Madam Justice Goss suggests that this activity – and “ridicule” and “mockery” in general – does not warrant constitutional protection. She nonetheless holds that PIPA is too restrictive of expression in a free and democratic society because it restricts unions from engaging in “union journalism” relating to labour disputes and picket lines. While significant, Madam Justice Goss’s finding does preserve a rather fundamental limit on the “cyber picket line” (a term used by the union’s expert): the dissemination of images to ridicule, mock and intimidate can and should be restrained by applicable privacy legislation.

Of course, the decision has implications that go beyond the picket line. At its broadest, the matter raises a rather gargantuan issue about how much government can restrict the expression of information about things people do in public as a means of promoting and protecting personal privacy.

United Food and Commercial Workers, Local 401 v. Alberta (Information and Privacy Commissioner), 2011 ABQB 415 (CanLII).

Ont. C.A. Affirms Sealing Order to Protect Settlement Privilege Pending Agreement’s Approval

8 Sep

Today the Ontario Court of Appeal affirmed an order that sealed information about the amount of monies to be paid under a settlement agreement that was subject to court approval.

The order applied only to information about monies to be paid and not to the entire agreement. It also had a provision that allowed non-settling parties to obtain access to sealed information upon signing a confidentiality agreement to allow them to participate in the approval proceeding without encumbrance.

The Court held that the the order was based on the important interest in promoting settlement that is recognized by litigation privilege doctrine and that this interest was not outweighed by the interest in holding an open approval proceeding. It also held that the order was not over-broad.

Court approval of the proposed agreement was required under the Companies’ Creditors Arrangement Act. In making its finding, the Court said, “we leave to another day the issue of whether the privilege always attaches to other settlements requiring court approval, for example, class action settlements or infant settlements, where different values and considerations may apply.”

Hollinger Inc. (Re), 2011 ONCA 579.

HRTO Orders Applicant to Consent to Use and Disclosure of Student Record for Proceeding

3 Sep

On August 5th, the Human Rights Tribunal of Ontario held than an applicant implicitly consented to the use and disclosure of information in his Ontario Student Record by putting the information into issue in his application.

Section 266 of the Ontario Education Act deems the OSR to be privileged subject to student or guardian consent. The applicant (through his next friend) referred to information in his OSR in his application and expressed an intention to use information in his OSR in pursuing his application. The applicant was not, however, forthcoming with consent to allow the responding school board to use the OSR in it’s defence.

The Tribunal did not entertain the board’s argument for a finding that the section 266 privilege is waived in whole upon the filing of an application by a student in respect of educational services. It did articulate a principle that supports implicit consent to use and disclose relevant information in an OSR in support of a defence:

Based on the particulars in the Application, as well as the applicant’s own expressed intention to rely on parts of the OSR, the applicant has implicitly consented to at least some use and disclosure of the OSR by the respondent in order to defend itself. However, in subsequent correspondence and submissions the applicant’s next friend explicitly seeks to place a number of conditions on her consent. I am not satisfied that the restrictions she seeks to place are necessary to protect the privacy of the OSR documents and information. The respondent is not receiving documents, through a disclosure process, in which it otherwise has no interest or responsibilities. It is still subject to its obligations under the Education Act. To the extent that it may use or disclose documents or information from the OSR for the purposes of the proceeding before the Tribunal, it is also subject to the Tribunal’s Rules on the confidentiality of documents. The applicant cannot rely on documents and information from the OSR in the Application, while seeking to prevent the respondent from using the same in order to present its case. I find it necessary, for a fair and just proceeding, for the respondent to be able to use and disclose documents and information from the OSR, subject to the time limitation addressed below.

…

Where an application is filed which claims discrimination in educational services and it is apparent that a respondent school board must use and disclose information from an OSR in order to defend itself, including to file a full response, the Tribunal will consider, on request from such a respondent, whether the application should proceed unless an applicant provides explicit consent to use and disclose information that information.

The Tribunal ordered the applicant to provide explicit consent for the use and disclosure of information falling within a relevant time period, failing which it would consider dismissing the action as an abuse of process.

T.S. v. Toronto District School Board, 2011 HRTO 1471 (CanLII).

Follow

Get every new post delivered to your Inbox.