Category: Uncategorized

Case Report – Information about lifestyle abandoned when trashed

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.

Case Report – Court orders production of hard drive to neutral expert

Yesterday, the British Columbia Supreme Court ordered a hard drive to be produced to a neutral expert to identify and extract information about the amount of time the plaintiff spends on Facebook between eleven at night and five in the morning. It held that this information met the standard of relevance for production given the plaintiff had claimed that fatigue is preventing him from maintaining employment. It also characterized the scope of the defendant’s request as narrow and suggested the privacy interest of the plaintiff and other users of the (home) computer were resolved by engaging a neutral.

Thank you to Erik Magraken of the ICBC Law blog for posting on this decision first.

Bishop v. Minichiello, 2009 BCSC 358.

Case Report – Arbitrator makes (surveillance) camera-by-camera order

On March 10th, Arbitrator Robert Howe issued an award upholding an employer’s expanded video surveillance program while issuing a camera-by-camera order to minimize its privacy impact.

The employer installed cameras at its milk production facility, primarily to improve plant bio-security. The plant had not experienced a bio-security incident, but its auditor and a major customer urged it to improve its bio-security program. The employer installed additional cameras as part of this program, though it also acknowledged that the cameras would be used to investigate employee misconduct, including documented incidents of sabotage to equipment.

Arbitrator Howe applied a balancing of interests approach. He held that the new cameras were helpful in addressing the bio-security threat, and that the employer did not have to await a bio-security breach before implementing safeguards. He also held that the cameras were the only means of addressing employee misconduct.

Though endorsing the employer’s expanded surveillance program, Arbitrator Howe also issued an order that required it to direct cameras away from work areas as much as possible while preserving each camera’s efficacy. He also ordered that images obtained only be used as a tool to investigate bio-security threats or incidents, incidents of health and safety violations, and incidents of culpable conduct, with no real-time monitoring of employees for any other purposes, and no use of those images for purposes of monitoring production, lateness, or attendance.

Re Teamsters Local Union 647 and William Neilsen Dairy (Surveillance Camera Grievance), [2009] O.L.A.A. No. 129 (Howe) (QL).

Case Report – FC doesn’t bite on broad arguments in access dispute

On April 2nd, the Federal Court upheld a Department of Foreign Affairs and International Trade decision to deny public access to information that was critical of the Afghanistan government because its disclosure could reasonably be expected to be injurious to international affairs.

Though the outcome turns on the evidence adduced by the department in support of its exemption claim, the decision is nonetheless notable for the Court’s rejection of several broader arguments brought by the applicant and intervenor. It held:

  • that a department is not precluded from shielding information about torture under the international affairs exemption because of the status of torture in international human rights norms
  • that a right of public access to government information is not protected under section 2(b) of the Charter
  • that a department does not need to consider section 2(b) Charter values in deciding whether to apply a discretionary exemption in the ATIA

Issues about the scope section 2(b) as it relates to public access to government information were argued last December before Supreme Court of Canada. In this decision, the Federal Court seemed content to wait for the Supreme Court to have its say in the Criminal Lawyers’ Association case and simply deferred to prior Federal Court jurisprudence.

Attaran v. Minister of Foreign Affairs, 2009 FC 339.

Case Report – Man CA affirms deferral of spoliation hearing to trial

On December 1st, the Manitoba Court of Queen’s Bench dismissed a motion for an order striking out a statement of defence on the basis of a spoliation claim.  It stressed that spoliation claims will ordinarily be dealt with at trial. (Full summary here.) On March 18th, the Manitoba Court of Appeal issued a short endorsement in dismissing an appeal of this finding.

Commonwealth Marketing Group Ltd. v. The Manitoba Securities Commission, [2009] M.J. No. 77 (C.A.) (QL).

Information Roundup – 28 March 2009

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!]


Case Report – BCCA says non parties get no notice of production motion despite privacy interest

Yesterday, the British Columbia Court of Appeal dismissed an argument that various non-parties whose private communications had been intercepted by the RCMP should be given notice of a motion brought to compel production of the intercepts.

The production motion was brought by the Director of Civil Forfeiture in forfeiture proceedings. It appears to have been opposed by the defendants but not by the RCMP.

The motions judge held that notice ought to be given to the “objects of the interception” and adjourned the motion. He relied on Rule 44(5) of the B.C. Supreme Court Rules, which demands that persons “who may be affected” by an interlocutory order shall be given notice of motion.

The Court of Appeal held the motions judge had erred. It reasoned that the Rules’ third-party production provision – Rule 26(11) – is a complete code that governs the requirement to give notice of third-party production motions in British Columbia. This provision only requires notice to the third-party and “other parties” but not other persons “who may be affected.” The Court held that the general notice requirement in Rule 44(5) could not override the specific and more limited notice requirement in Rule 26(11).

Though the outcome of the appeal is based on interpretation, the Court also made some broad statements about the non-party privacy. It suggested that the Court ought to guard non-party privacy, even by ordering a two-stage hearing, but held that notice to non-parties would only lead to “unnecessary expense and complication” and would conflict with the Court’s mandate to “secure the just, speedy and inexpensive determination of every proceeding on its merits.”

The issue of non-parties’ right to receive notice of production motions based on a privacy interest is significant and can arise whenever records subject to production contain non-party personal information. See Datatreasury for a recent example. This is the first Canadian case of which I’m aware with significant reasoning on the issue. If you are aware of any cases, Canadian or otherwise, please drop a comment or e-mail.

British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., 2009 BCCA 124.

Case Report – Court orders disclosure of anonymous message board users’ identities

On March 23rd, the Ontario Superior Court of Justice ordered the owner/operator of a right-wing internet message board to disclose the identities of eight John Doe defendants who had posted commentary about lawyer Richard Warman.

There are two significant aspects of the decision.

First, the Court seemed to distinguish the BMG case (where the Federal Court of Appeal endorsed a protective balancing test) on the basis that the plaintiff filed an action directly against the website owner/operator. Website owner/operators may question whether their status as first or third parties should really make a difference.

Second, the Court relied on recent search and seizure cases that have endorsed voluntary identification of internet users by ISPs to police based on permissive ISP terms of service. It used these cases to draw a general conclusion that individuals cannot reasonably expect online anonymity. Though specific terms of service should govern, this aspect of the decision illustrates that ISP policy favouring disclosure to police may affect users’ right of anonymity as against potential civil claimants.

Hat tip to Michael Geist for his leading post.

Warman v. Wilkins-Fournier (23 March 2009, Ont. S.C.J.).

Information Roundup – 18 March 2009

It’s been a while since I’ve posted a Roundup, partly because I went to a new design in the new year that’s taken a greater effort to write. With a view to sharing more links to current information more often, I’m going to revert back to a design that’s closer to what I was posting last year. However, thanks to a great idea from law practice management consultant Ron Friedmann, will simply re-post my from my Twitter feed. To keep with the spirit of microblogging, I’m going to refrain from editing and give them to you straight. Thanks Ron!

Here are some things within the domain that have bumped around on Twitter and caught my interest:

Spring has sprung here in Southern Ontario, and I’m re-enamoured with paddling after struggling through late fall and winter. It may be hard to believe, but Lake Ontario around Toronto can be extremely beautiful. I’d encourage everyone to find a way to appreciate the lake. I’ve attached a picture below from last weekend’s paddle around Toronto Island that shows how nice the water can be (on a good day). There are more pictures posted here. The beaches at Hanlan’s Point and Gilbrartar Point are incredible. Let’s keep them clean!

Dan

sany0020