Author: Dan Michaluk

Case Report – BCCA holds defence counsel may attend informer privilege hearing

On July 10th, the British Columbia Court of Appeal dismissed an appeal from an order which allowed defence counsel to be present at an in camera hearing to determine whether informer privilege was validly claimed. It did so by issuing three separate judgements and, in the end, is less authoritative than it is revealing of sharp divide on a key point of criminal procedure and the law of privilege.

The dispute arose in the context of a pre-trial application for disclosure by criminal defence counsel. In response, the Crown applied to call evidence to establish informer privileged in camera, excluding the public and defence counsel.  It filed a certificate under section 37(1) of the Canada Evidence Act, which establishes a procedure for objecting to the disclosure of evidence based on a “specified public interest” and which starts with a “first stage” hearing to determine whether the privilege has been validly claimed. The presiding judge decided to allow defence counsel to attend the first stage hearing in this case, but ordered them to refrain from disclosing information revealed to anyone, including their clients, and to file written undertakings with the Court promising the same.  

On appeal, the Crown argued the judge made an order that contemplated disclosure of the informant’s identity that was improper in light of the strict nature of the informer privilege. (All parties agreed the innocence at stake exception did not apply given the dispute arose in the context of pre-trial production.) Defence counsel argued that there was no order that contemplated such a disclosure from which appeal could lie and that, alternatively, the judge exercised her discretion properly in making the order.

The outcome was carried on separate but concurring rulings by Finch C.J. and Donald J.  They held that the presiding judge had made an order that contemplated disclosure of an informant’s identity to defence counsel but that the order was made in a proper exercise of discretion under section 37(5) of the Canada Evidence Act, which permits disclosure of information that is subject of a section 37(1) certification where the public interest in disclosure outweighs the public interest specified by the Crown.

More significantly, Finch C.J. and Ryan J. differed sharply in their opinion on the presiding judge’s exercise of discretion and whether that discretion may ever be exercised in a manner that allows defence counsel to attend a first stage hearing.

Ryan J. relied heavily on the Supreme Court of Canada’s recent decision in Named Person, which stresses that the informer privilege is a class-based rule which can only be abridged if necessary to establish innocence at stake in a criminal trial.  She held that allowing defence counsel to attend at a first stage hearing under a confidentiality undertaking would breach this rule and would place defence counsel in a a conflict of interest (torn between her duty to the court and client). Finally, she held that section 37 of the Canada Evidence Act does not alter the substance of the informer privilege (despite its reference to a balancing of interests):

In my view then, s. 37 of the Canada Evidence Act gives a trial judge the discretion to determine the type of hearing he or she will conduct and determine who may attend when a specified public interest issue is certified.  But this discretion must be read in light of whatever special public interest issue is at stake.  As I read the specified public interest provisions of the Canada Evidence Act, they provide a procedure for the airing of these issues, but they do not change their substantive content.  The centrepiece of informer privilege is the protection of the identity of the informer.  Nothing in s. 37 or the following provisions can be read to dilute that requirement.  It follows that the trial judge has a discretion as to what type of hearing to hold when the issues arise, but it must always be within the parameters prescribed by the privilege itself. 

Finch C.J. was in fundamental disagreement with Ryan J.  He held that Named Person was not authoritative because it only dealt with the media’s right to be present at first stage hearing and did not entail consideration of the special discretion granted by section 37 of the Canada Evidence Act.  He said:

That a judge has a broad discretion on applications brought under s. 37 is evident from the language used in that provision.  Under s. 37(5) the Court may order disclosure, even where such disclosure will encroach on a specified public interest, if the public interest in disclosure outweighs in importance the specified public interest.  The Court may attach conditions to a disclosure order under s. 37(5).

MacDonald J. agreed with the Chief Justice’s conclusion about the existence of a discretion to invite defence counsel to a first stage hearing, but wrote a separate, short and much more reserved judgement.

R. v. Virk, Basi and Basi, 2008 BCCA 297.

Case Report – Forensic inspection ordered but party trusted to deal with results

In a oral award issued on July 11th, Mr. Justice Elliot Myers of the BCSC ordered the forensic examination of a computer hard drive, declined to order the appointment of independent counsel and suggested the forensic expert was precluded from communicating the results of his analysis to the parties to whom records were produced.

The hard drive was in the custody of the plaintiffs and involved records relating to a fatal helicopter crash. The parties agreed that it contained relevant records, some of which were deleted prior to litigation and needed to be recovered. This caused the plaintiffs to hire a forensic computer specialist to retrieve and produce records to the defendants, but when the defendants asked for information about the methodology used by the specialist the plaintiffs refused. They claimed that providing the requested explanation would involve a substantial expense and, for whatever the reason, neither the defendants nor the plaintiffs invited the Court to assess or order the obvious mid-ground solution – simply ordering the plaintiffs to provide the information originally requested by the defendants.

In making his order (which entailed having the defendants’ forensic computer specialist administer agreed-upon search terms), Myers J. distinguished between the need for an order to give assurance that a search is done effectively and the need for an order to protect against bad faith conduct.

In ordering an inspection by an expert selected by the defendant’s, he said:

The real issue here is that the defendants cannot verify the quality or the thoroughness of the hard drive search because Mr. Camp has not provided them with the necessary information. Mr. Camp can only rely on the advice of Mr. Kojima that the hard drive analysis was done using the appropriate methodology; he did not presume to have the technical expertise to effectively supervise that exercise. Therefore, the defendants cannot rely on the obligation of counsel to ensure that all relevant documents are listed. The defendants are left with having to accept as a matter of blind faith that Mr. Kojima retrieved all relevant documents. That takes on a particular edge in this case because the former owner of the hard drive, Mr. Honour, is deceased. This is not a case where the owner of the hard drive can be examined for discovery as to the location of documents or discrepancies in the document list.

And declining to order the appointment of independent counsel:

With respect to the first rationale for [the mechanism of appointing independent counsel], there has been no allegation of improper deletion of documents (as opposed to deletion of documents in the ordinary course) or a skirting of the court rules. In that sense this application is not in the nature of an Anton Piller order.

The second rationale for the mechanism — concern with respect to the defendants seeing privileged or irrelevant documents — is a valid one. But this can be met by the forensic expert forwarding the results to Mr. Camp, who would then deal with the retrieved documents in the ordinary course.

Finally, Myers J. held that it was implicit in the order granted that the defendant’s forensic would not communicate the results of his search to the defendants and suggested he would deal with any questions about the validity of the expert’s process if necessary post disclosure.

Chadwick v. Canada (Attorney-General), [2008] B.C.J. No. 1225 (S.C.) (QL).

Case Report – NB judge grants Charter motion to exclude evidence on seized hard drive

On June 2nd, a New Brunswick Provincial Court judge excluded evidence on a hard drive obtained by the Canada Revenue Agency pursuant to a search warrant.

The dispute related to files that were stored on the hard drive but were also beyond the temporal scope of the search warrant and over which the accused consistently asserted an expectation of privacy. The motions judge found that the CRA did not act improperly by seizing the hard drive, but breached section 8 of the Charter because it did not immediately file an amended return before the issuing judge and undertake not to use the out-of-scope records. He found a second breach because the CRA, instead, used the out-of-scope records to file a second search warrant in another unrelated investigation. The judge cited Celanese after stressing the government’s duty to exercise caution in searching intermingled documents.

Given the nature of storage of computer records and the process of identification and retrieval, seizure of a computer hard drive could inadvertently effect seizure of documents outside the time frame specified in the warrant.

However, seizing agents must be mindful both of the potential for intermingled documents in computer searches and the need to exercise discretion in protecting documents seized in such manner.

The section 24(2) analysis turned on the seriousness of the breach, which the judge characterized as a “clear pattern of a continuous obtrusive breach.”

R. v. Daley, 2008 NBPC 29 (CanLII).

Protect your domain name from rogue departing employees

In quite the coincidence, we’ve recently been retained on back-to-back domain name hijacking files, which compelled me to write a client bulletin that has just been published here. I generally try not to be very strident in these types of communications, but its such an aggressive form of malfeasance that I’m afraid its hard to hide the fact that I’m impassioned in my concern. Hope the bulletin is of interest!

Information Roundup – 6 July 2008

Good morning.  Not many posts lately.  I’ve been busy, but have still been trolling for cases and haven’t found too much of interest.  Maybe this whole information and privacy thing is a fad;)

Here’s what I’ve read recently that you might enjoy.

  • Neil Richards, “Intellectual Privacy.” Professor Richards argues that the United States’ First Amendment should protect “intellectual privacy” – “the ability to develop ideas and beliefs away from the unwanted gaze or interference of others.”  He shows that the First Amendment (with its protection of speech and the press) has for the most part been seen to be at odds with privacy protection, but that the core values underlying the First Amendment are not in conflict privacy protection when one considers the value of intellectual privacy.  This value, he further argues, is more threatened in recent times given the recording of our thought processes in databases owned by entities like Google.  He makes a simple, reasonable argument that resonates. (SSRN)
  • Matt Richel, “What’s Obscene?  Google Could Have an Answer.” This is a news story about a criminal case in Florida and defence counsel’s plan to introduce evidence from Google Trends in support of an argument on “contemporary community standards.” Apparently people in Pensacola search the term “orgy” more than “apple pie” but less than “surfing.”  Go figure.  (New York Times)
  • Anthony Lin, “Malpractice Suit Against Kay Scholer Alleges Discovery Foul-Ups.”  A news story.  The title speaks for itself.  (Law.com)
  • Jordan Furlong, “Core competence:  6 new skills now required of lawyers.” This has nothing to do with information and privacy, but I think it’s quite smart.  (Law21)

Nicest weekend for weather this year here in Toronto.  I’m looking forward to a good paddle today, though am sure that dealing with the gong show at the beach will have me yearning for the solitude of winter on the water, 6mm mittens or not.

Enjoy!

Case Report – No basis for questioning preservation steps

In a June 16th order, Master MacLeod had the opportunity to consider whether a party should be compelled to answer, in the ordinary course of oral discovery, questions about its efforts to preserve evidence. He said:

Q. 823 was originally a question about producing pharmacy records. Apparently when the request was made, the pharmacy only had computer records going back to 2001. There was a follow up question as to when the request was made. Q. 945 asked for a microbiological report which is not available. The question is asked as to whether the document did exist and if it was destroyed, when that occurred and when did the plaintiffs first take steps to preserve the evidence? These follow up questions, if they are relevant, are relevant only to an argument that an adverse inference at trial should be drawn if it appears the plaintiffs did not take adequate steps to preserve available evidence once litigation was contemplated or when it first became apparent that this evidence might be relevant. There are certainly circumstances in which compliance with litigation holds or compliance with undertakings may make it relevant if a party has been so slow in complying with its obligations as to give rise to a spoliation inference or sanctions for what in the United States is sometimes described as “purposeful sluggishness”. There is no evidence before me to suggest this is the case here and I decline to exercise my discretion by ordering this question to be answered.

Andersen v. St. Jude Medical Inc., [2008] O.J. 2452 (S.C.J.) (QL).

Information Roundup – 30 June 2008

Happy Canada Day!  We had a great weekend on Wolfe Island.  There’s no better place than Kingston in the summer, and Canada Day across the harbour with family and friends is also an ideal.  

Here are some things I’ve read lately that you may find interesting:

  • Drake Bennett, “Stopping Google.”  This is a very good article that identifies the range of policy issues raised by Google’s amazing success and power.  Hat tip to Professor Frank Pasquale (who’s quoted in the article) and the Concurring Opinions blog.
  • Orin Kerr, “Updating the Foreign Intelligence Surveillance Act.”  The most recent University of Chicago Law Review has published 13 essays from a surveillance symposium it recently ran.  The essays are very technical and policy-oriented and not about general information and privacy concepts (which was what I was hoping for).  They are interesting though, and as an uninformed outsider attempting to understand the debate about domestic surveillance, this essay provided a nice and fairly accessible overview.  This is no slight to Professor Kerr, who also makes a solid argument on FISA reform.
  • Ryder Gilliand, “Fair Comment and Freedom of Expression in Simpson v. Mair.”  This is Mr. Gilliand’s comment on Friday’s Supreme Court of Canada decision on the fair comment defence.  

In Simpson, the majority not only laid down the law on fair comment, it gave an odd teaser on “the public interest defence of responsible journalism,” presently queued up to be heard by the Court next January in Cusson v. Quon. Though Binnie J. specifically marked this part of his majority decision as obiter, he also showed the majority’s openess to recognizing a special defence for those who publish news and suggested the real debate should be about its nature and scope:  

While the legal position in both Australia and New Zealand was influenced by statutory provisions that have no direct counterpart in Canada, the Canadian law of qualified privilege will necessarily evolve in ways that are consistent with Charter values.  At issue will be both the scope of the qualified privilege (Reynolds is broader) and whether the burden of proof of responsible journalism should lie on the defendant (Reynolds) or irresponsible journalism on the plaintiff  (Lange v. Atkinson).

Enjoy!

Case Report – Federal Court says ministerial offices beyond the scope of ATIA requests

You may have heard about the Federal Court’s June 19th ruling that the Prime Minister’s Office (the “PMO”) and other ministerial offices are not “institutions” whose records are subject to the Access to Information Act. Here is a breakdown of the rather complex judgement.

The Court considered a series of ATIA requests filed in 1999 by a Reform Party staffer, including a requests for former Prime Minister’s agenda books from the Privy Council Office and the Royal Canadian Mounted Police and requests for records from the former transport and defence ministers.

The bulk of the records in dispute were only in the custody of the PMO, the Office of the Minister of Transport and the Office of the Minister of National Defence. The Court held that the act did not apply to these records by virtue of these three offices’ status as “institutions.” None are listed in the Act’s schedule of institutions, but their bureaucratic counterparts are – namely, the Privy Council Office (the “PCO”), the Department of Transport (the “DOT”) and the Departments of National Defence (the “DND”). In a very lengthy analysis of the text and structure of the Act and extrinsic factors showing Parliament’s intent, the Court concluded that, for the purposes of the ATIA, the PMO is not part of the PCO nor are other ministerial offices part of their departments.

Despite this finding, the Court nonetheless considered whether responsive records in the custody of the PMO and ministerial offices were in the control of the PMO and the two Departments. Before assessing the various classes of records at issue, the Court again engaged in a lengthy analysis of the meaning of “control.” It said control means that an institution has some power of direction or command over a document, even if it is only on a ‘partial’ basis, a ‘transient’ basis, or a ‘de facto’ basis.”

Based on this meaning, the Court held most of the records in the custody of the PCO and the two Departments were not under the control of a government institution and thereby beyond the right of public access. The exception: records listing the items to be addressed at meetings between the former Minister of Transport, his exempt staff as well as the Deputy Minister and Chief of the Defence Staff (the two of whom hold offices within the DND) and some miscellaneous records shared amongst the same group for similar purposes. The Court framed the meeting agendas as used by both by the Minister’s own office and the DND and said that a DND officer, “would most likely be given another copy of the agenda from the Minister’s office if he was missing his copy.”

As it does not appear that any exemptions were claimed on these DND records, this left the Court with a decision to make about the scope of access to copies of about 400 pages from the former Prime Minister’s agenda book which were in the custody and control of the PCO and the RCMP. The Court rejected a claim that the records were excluded from the ATIA as Cabinet confidences, held that the Canada Evidence Act certificate by which the Clerk of the PCO designated the records as Cabinet confidences was invalid and held that the exemption for “advice and recommendations” did not apply. These findings were driven by the fact that the entries in the agenda did not address the content of the Prime Minister’s meetings nor were they apparently sensitive in any other way. The Court did hold some personal information in the records to be exempt. Notably, this included the names of individuals who met with Mr. Chretien including (as the Court specified) business people, fund-raisers and lobbyists regardless of the capacity in which they were engaged.

Canada (Information Commissioner) v. Canada (Minister of National Defence), 2008 FC 766.

Information Roundup – 22 June 2008

Hope you all enjoyed the summer solstice and/or International Surfing Day. Here’s some things I’ve read lately that you might like.

  • Peter Lake, “Still Waiting:  The Slow Evolution of the Law in Light of the Ongoing Student Suicide Crisis.” Professor Lake’s latest comment on post-secondary education institutions’ duty of care.  Although he argues that administrators would benefit from development in the duty of care case law, he also suggests that Virginia Tech and its three major reports make the need for action-oriented policy clear.  The idea:  questioning the duty to help individual students at risk can be paralyzing (and the case law doesn’t help), but the link between suicide and the risk of violence perpetrated against others brings a far more clear duty to bear. 
  • Anita Kumar, “Judge Agrees to Va. Tech Payout.”  Some related news on last week’s Virginia Tech settlement approval for claims brought by families of 28 of the 32 people killed in April 2007.  The settlement has a public interest component that allows the families to meet with Governor and university and other state officials. (Washington Post)
  • Paul Ohm, “The Fourth Amendment Right to Delete.”  Professor Ohm argues that “collect/copy now, analyze later” law enforcement tactics involve the “seizure” of evidence.  Interesting comments on the nature of the proprietary interest in information:  “Cases like Hicks view dispossession as a simple matter of rivalry:  if you have my locked box, I can’t have it too.  But in the age of nonrivalrous, perfect digital copying, this view of dispossession seems tautological and unhelpful.” (Harvard Law Review Forum)
  • Clifford Davidson, “The Wrath of Quon?”  A Proskauer Rose comment on Quon v. Arch Wireless, in which a California court recently held that a communications company violated the Stored Communications Act for allowing an employer to do a non-consensual audit of employee text messages. There is a mention of “operational reality” overriding a clear language in a computer use policy, but Mr. Davidson says nothing in the case appears to restrict employers who give clear notice to employees in order to limit their expectation of privacy.  Includes a link to the decision.  (Proskauer Rose)

Enjoy!