United States v. Jones is hailed as one of the most important Fourth Amendment decisions of the decade. Yet, it is certainly not the final word on the nexus formed among among privacy, technology and search and seizure. Without a warrant, police in Maryland had attached a GPS tracking device on the accused’s car for 28 days, which emitted information about the accused’s location every few seconds. This tracking device led police to a warehouse filled with cocaine and cash. The accused, Antoine Jones, was arrested.

As I had observed in late November, it was not clear by the end of the oral hearings which way the judges were going to side. At the end, a unanimous court decided that the use of the GPS tracking device to be unconstitutional. Namely, they agreed that the accused’s constitutional right – his Fourth Amendment right to be guarded from “unreasonable searches and seizures”  – was infringed upon. That was the end of their agreement. In usual fashion, the Court splintered, with Justice Scalia leading one contingency and Justice Alito leading another. Justice Sotomayer cast the deciding vote, opting for the ‘minimalist approach’ advocated by Justice Scalia. Even though she preferred the narrow interpretation, she also had sympathy for the “incisive” conclusion drawn by Justice Alito. Rather humorously, one critic counts 4.5 votes for Justice Scalia and 4 votes for Justice Alito.

Three Positions:

Given the far-reaching implications of this case for police officers and government officials, it was disappointing that the Court failed to display any decisiveness. While Justice Scalia seems to be most investigated in the question of whether this tracking device constitutes a “search” under the Fourth Amendment, one could argue that his attention is misdirected, or at least unnecessarily narrow. That is, the fulcrum of the case is the increasing tension between new technology and our expectation of privacy: what is a “reasonable” expectation of privacy in a world in which cell phones have a GPS locator and public spaces are often camera-equipped? Courageously, Justice Alito tried to tackle this thornier issue.

Justice Scalia, and the three judges that sided with him, asserts at the end that: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.” He concludes that the accused’s Fourth Amendment right was infringed by the installation of the GPS tracking device by the police.

While agreeing with the ultimate decision, Justice Alito faults Justice Scalia for applying eighteenth century legal concepts to the twenty-first century. In particular, the minority takes issue with Justice Scalia’s “trespass” analogy. One cannot help but find the Scalia-Alito sparring match comedic. Justice Scalia considers the use of GPS tracking devices by the police analogous to a constable who might conceal himself “in the target’s coach in order to track its movements.” Justice Alito retorts: “this would have required either a gigantic coach, a very tiny constable, or both — not to mention a constable with incredible fortitude and patience.” (The last part is a reference to the fact that this case involved 24-hour surveillance for 28 days.)

Justice Alito is less interested in whether the GPS device constitutes a search. One of the strengths, and simultaneously one of the weaknesses, of his decision is that it puts much weight on time. There is little doubt that Justice Alito would take issue with any kind of permanent surveillance scheme, even if it is not physically intrusive. “In some locales,” he wrote, “closed-circuit television video monitoring is becoming ubiquitous… Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.” Turning to the case at hand, Jusice Alito concludes that, “We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the four-week mark.”

Justice Sotomayer would have cast her vote in favour of Justice Alito if he had meaningfully addressed the issue of voluntary disclosure. “It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” she states in a somewhat ominous way. She puts her finger on a key issue, our digital footprint. Today, our Internet browsers document every purchase we make, every URL we visit and every message we send. Despite the fact that we put ourselves out there on the Internet everyday, she wonders out loud whether it would ever be acceptable for the government to track our presence online for a day, a week or a month.

The Final Score

From these decisions, it becomes increasingly clear that the government may not really be the losers in this case. None of the justices sided with the government. Yet, they leave open critical questions. Justice Scalia’s “trespass” theory seems to hinge on physical intrusion. Here, the police affixed a GPS tracking device to the accused’s car. What if the police, through a remote location, taps into the car’s pre-existing GPS device? Would Justice Scalia and the majority deem to not constitute a search, and thereby permissible?

Justice Alito’s opinion may sound more appealing because it is more grounded in the realities of life in the twenty-first century. Despite the fact that our cell phones can track our location, we still have a reasonable expectation of privacy when it comes to round-the-clock police surveillance, according to the minority. What is not clear with Justice Alito’s position is whether he would accept shorter-term police surveillance. The minority does not consider the mere installation of a GPS tracking device on a suspect’s vehicle to be a search. Only after a certain point in time does it tip into Fourth Amendment territory. What if the police did not monitor Antonin Jones for four weeks, but rather one week? What if they monitored him for only four hours each day? In either of those scenarios, Justice Alito and the minority might deem it not to be a search that requires a warrant.

United States v. Jones puts some important questions on the table, especially as they relate to our increasingly digital world. And there is a sense that larger changes are needed (i.e. voluntary information disclosure to third-parties). What may be underestimated, however, is that more complicated, more litigious questions remain.

A day or two before Christmas of that same year, Angevine received a phone call from then Attorney General of Ontario, Mr. Howard Hampton. Angevine alleges that Hampton congratulated him on being “chosen to be appointed to the Provincial Court,” and assured him that the appointment was imminent. Hampton remembers the call somewhat differently, claiming that the “congratulations” he offered was solely in response to the JAAC having recommended Angevine as a candidate for appointment. While Hampton was planning to recommend Angevine to Cabinet, he had not yet had the opportunity to do so.

One month later, before any new judicial vacancies arose, Howard was shuffled from his post as Attorney General. Evidently, Howard did pass on a list of candidates that he had planned to recommend, and the plaintiff was included in that list. As the very existence of this case implies, however, the new Attorney General did not adhere to Howard’s recommendations.

The motion being considered here is one brought by the Crown seeking a summary judgment dismissing the plaintiff’s breach of contract claim. The motion presents three issues for consideration, each of which, if satisfied, would provide sufficient grounds for dismissal. (1) Can a judicial appointment be the subject of a contract? (2) If a contract could exist, does one exist in this case? (3) Is the claim statute-barred?

(1) Can a judicial appointment be the subject of a contract? Justice Parayeski, for the Ontario Superior Court of Justice, wastes no time in determining that it cannot, as “judicial appointment is a discretionary, executive function of Cabinet, and of no one else.” Justice Parayeski is essentially making two points. First and foremost, he is pointing to the fundamental value of judicial independence, as confirmed by the Supreme Court of Canada in the Provincial Judges Reference. An independent judiciary, free from political interference, is “a necessary precondition to public confidence in our judicial system.” Indeed, the perception of independence may be as important as independence itself—hence, the creation of the JAAC. It pretty much goes without saying that allowing a politician’s personal promise to constitute an enforceable contract—requiring the exchange of valuable consideration—would undermine public trust. Ultimately, Justice Parayeski grounds his decision in the illustrative words of Osgoode’s own John McCamus: “Agreements that tend to undermine the proper functioning of public institutions are considered void as against public policy.”

Justice Parayeski’s second, and slightly more technical point is that the appointment scheme literally makes it impossible for judicial appointments to be the subject of a binding promise. This is because the Courts of Justice Act sets out three distinct levels of discretion: the JAAC, the Attorney General and Cabinet. Once candidates have been endorsed by both the JAAC and the Attorney General, it is Cabinet that makes the ultimate decision, as per s. 42(1) of the Act. As such, the Attorney General alone does not have sufficient legislative authority to make an enforceable promise with respect to judicial appointments.

(2) If a contract could exist, does one exist in this case? Having found that it is impossible for a contract to exist, it is entirely unnecessary for Justice Parayeski to address this issue. Nonetheless, he opts to answer the question in brief. In refuting the formation of a valid contract, he points first to the fact that Angevine knew—or at least should have known—that Hampton had no power to bind Cabinet. Justice Parayeski then points to the lack of evidence demonstrating mutual assent. Even if Hampton had said exactly what Angevine alleges, there are numerous possible interpretations of his statements.  As such, there is clearly no evidence to indicate the requisite meeting of minds.

(3) Is the claim statute-barred? Justice Parayeski explains that there are three statutory limitation periods that could potentially be applied to this claim. Before 2004, the Public Authorities Protection Act imposed a 6-month limit and the Limitations Act imposed a 6-year limit. Since 2004, Ontario’s Limitations Act has imposed a strict 2-year limitation period. Without fully exploring which limitation period is most appropriately applied—6 months, 2 years or 6 years—Justice Parayeski reiterates the rule that time starts running when the plaintiff has a subjective awareness of the facts underlying his claim. In this case, evidence clearly showed that Angevine began writing his statement of claim in 2000. The action, however, was not filed until 2007. Regardless of which limitation period is most appropriate, the claim was clearly too late.

Ultimately, Angevine’s attempt to establish breach of contract wasn’t even close. After reading Justice Parayeski’s decision, it is hard to imagine how any Crown Attorney could have possibly thought that such a claim would fly, let alone a Crown Attorney who thought that he possessed the makings of a judge. In hindsight, Ontario’s justice system may have dodged a bullet on this one.

On July 12, 2011, Molson-Coors Canada (Molson) won the right to spend $375 million over the next seven years on NHL sponsorship across North America. The Ontario Court of Appeal dismissed the claims of the NHL’s former sponsor, Labatt Brewing Company (Labatt). Essentially, the justices on the highest court of Ontario set aside the decision by Justice Newbould at the trial level based on the legal principle that judges should not independently determine a case based on theories that were not advanced in the proceedings. That would be contrary to the adversarial process, and patently unfair.

Facts

In Labatt Brewing Company Limited et al vs. NHL Enterprises Canada, L.P. et al, Labatt brought an application to the Ontario Superior Court of Justice against the NHL, Molson-Coors Canada, and related companies regarding beer sponsorship rights. Labatt’s sponsorship deal with the NHL terminated as of June 30, 2011. Subsequently, the NHL and Labatt entered into an exclusive negotiation period; Labatt sought to renew their deal for three years. At around the time that Labatt and NHL were drafting the final documents, Molson entered into the picture. After successful negotiations between Molson and the NHL, they signed a seven-year contract during which Molson would have exclusive sponsorship rights in the North American market.

An Exclusive Negotiation Period?

In the first proceeding, Labatt argued that the NHL had extended the exclusive negotiation period indefinitely. Albeit unsigned, an agreement on the terms of the renewal had been reached. The NHL denied that the exclusive negotiation period was indefinite. Further, the renewability provision was unenforceable, they argued. It was merely an agreement to agree.

Justice Newbould of the Ontario Superior Court of Justice took the position of Labatt. He found that the NHL did in fact extend the exclusive negotiation period indefinitely and that the parties arrived at a binding and exclusive agreement. That would have precluded the NHL from entering into any further talks with Molson.

Not Advanced by Counsel

The Ontario Court of Appeal overturned the decision by Justice Newbould for the reason that his decision was based on a theory and legal principle that had not been advanced by counsel. Specifically, the way in which Justice Newbould interpreted the renewal provision, from which he drew his final conclusion, was not grounded in the pleadings, evidence, positions or submissions of either of the parties. Justice Newbould himself interpreted the renewal provision in such a way that a binding sponsorship agreement had been reached.

First, the Ontario Court of Appeals found that Labatt did not plead that the parties had reached a binding sponsorship agreement. Labatt did not make this claim at any point during the hearing either.  Furthermore, the application judge never raised the issue of whether a sponsorship agreement had been reached with the NHL or Molson during the parties’ oral submissions. In summary, the appeal ruling stated: “[A]t no time during the application hearing did Labatt assert that a binding sponsorship agreement existed between the parties” and “the application judge did not raise this issue with the NHL or Molson during their submissions.”

If the defendants were aware of the fact that the issue for determination was the binding sponsorship agreement, then they would have conducted its defense in a different manner. As a result of these findings, the Ontario Court of Appeal struck down the lower court’s decision.

Prejudicial and Inherently Unreliable

At the end of the day, this case was decided on procedural fairness. It is a well known that judges cannot impose legal liability where legal liability was not advanced by a claimant. In paragraphs 61 to 63 of the 2002 case of Rodario v. Royal Bank of Canada, Justice Doherty held that it was fundamentally unfair and inherently unreliable for a trial judge to make findings against a defendant on the basis of a theory of legal liability not advanced by the claimant.

The judicial system in Canada pivots around the adversarial process, whereby truth can only be attained after contestation and competition between two opposing parties. If the parties are denied the chance to examine and cross-examine a legal principle or theory, then the court would not have confidence in that legal principle or theory. So, if the theory of liability first appears in the reasons for judgment, and is not tested by the adversarial process, then it must be dismissed.

Conclusion

For most Canadians, the ruling in July is important insofar as Molson beer advertisements will flood our television and computer screens — from Tampa Bay Lightening games to Twitter feeds. For parties entering into negotiations, however, this case may carry even more weight. Parties need to more cognizant of where they are in the negotiations and understand the status of their discussions at all times.

According to Dr. Cuthbertson and Dr. Rubenfeld – the two doctors responsible for Mr. Rasouli’s treatment – there is absolutely no hope for recovery. As such, they believe that it is in the patient’s best interest to be taken off life support and transferred to palliative care. Ms. Parichehr Salasel, however, is determined to keep her husband, Mr. Rasouli, alive.

As her husband’s litigation guardian and substitute decision-maker, Ms. Salasel is of the view that “where there is life, there is hope.” In fact, she argues that her husband has actually “responded” on a few occasions to the voices of her and her children. In short, she refuses to consent to the doctors’ plan to withdraw life-sustaining treatment. If they intend to override her lack of consent, she maintains, they must apply to the Consent and Capacity Board (CCB), an independent provincial tribunal.

For all of its emotional, philosophical and scientific complexity, the issue here appears to be, at the very least, clear: life or death? The doctors think it is time to let Mr. Rasouli die, and Ms. Salasel thinks not. Realizing that the two parties are, on a number of levels, worlds apart, Ms. Salasel turns to the courts.

The Superior Court

In her application to the Superior Court of Justice of Ontario, Ms. Salasel sought two specific orders:

(1) An order restraining the appellants [doctors] from implementing the proposed changes to the respondent’s current treatment plan without first obtaining her consent.

(2) An order requiring the appellants [doctors] to refer their treatment proposal to the Board [CCB] should they persist in challenging Ms. Salasel’s authority to reject it on the respondent’s behalf as being contrary to his best interests.

The doctors cross-applied for, among other things, a declaration that (a) they can lawfully withdraw life-sustaining treatment, and (b) they do not need Ms. Salasel’s consent in order to proceed with their proposed “treatment plan.” In March, 2011, Justice Susan Himel found in favour of Ms. Salasel, declaring that the doctors’ proposal to “end life sustaining treatment to the applicant…must be referred to the Consent and Capacity Board.” Until the CCB makes a decision, she ruled, the doctors must not withdraw mechanical ventilation.

The Court of Appeal

As expected, the doctors appealed Justice Himel’s orders. The appellants note that patients do, without question, have the right to refuse treatment, but they do not have the right to demand treatment that is of no medical value. The current treatment plan, they argue, is exactly that: of no medical value. They make it very clear that they are not saying doctors should be permitted to withdraw treatment whenever they like, free of legal consequences. Rather, a doctor is obliged to provide the patient with treatment that she believes, in her expert opinion, to be medically effective. As such, the appellants contend that Justice Himel’s orders will set a “dangerous precedent” by forcing doctors to “obtain the consent of patients before withholding or withdrawing treatment that they consider to be of no medical value.”

More importantly, the doctors argue that Justice Himel erred in finding that the “withdrawal of life support” constitutes “treatment” under the Health Care Consent Act. This was a crucial interpretation, of course, because “treatment” requires consent. Thus, the appellants submit that the withdrawal at issue here is not actually treatment as defined by the Act, and so it does not require the patient’s consent.

Writing for a unanimous Court of Appeal, Justices Moldaver and Simmons focus on this issue of whether or not Justice Himel erred in her interpretation of “treatment” under the Act. In essence, Justice Himel found that the Act recognizes specifically that “withdrawal of treatment” may form part of a “plan of treatment.”  Moreover, the act makes it clear that “treatment” includes a “plan of treatment.” Thus, withdrawing life support is an act of treatment. The appellants admit that this may be true in cases where life support measures serve a “therapeutic or preventive purpose.” This is not one of those situations, however, because the life support he is receiving is of no medical value.

Ms. Salasel, on the other hand, cannot accept that these life support measures have absolutely no value. Her argument, although admittedly simplistic, is persuasive in the sense that these measures are literally keeping him alive. For the purpose of this appeal, however, Justices Moldaver and Simmons decide that they:

…need not resolve the metaphysical debate over whether life saving measures in cases such as the respondents are of no medical value because they are futile, or of high medical value because they are keeping him alive while his family continues to hold out hope for his recovery.

Having disregarded the medical value debate as “metaphysical,” the Justices turn their attention to the question of whether the doctors’ plan constitutes treatment. The key here is that the plan is not simply to withdraw life support, but to subsequently provide palliative care. While palliative care is not explicitly defined in the Act, it is included in the Act’s definition of treatment. Thus, the doctors must, by law, obtain consent from Ms. Salasel before administering palliative care.

Based on expert testimony, the Justices find that the stopping life support and beginning end-of-life care are, at least in this situation, inextricably connected. The Justices put it like this:

…in the respondent’s circumstances, removal of the ventilator is a necessary precondition to the administration of end-of-life palliative care and end-of-life palliative care is a necessary response to removal of the ventilator.

Where both are recommended, as is this case here, one cannot be separated from the other. They are a package. In essence, the Justices are saying that the consent requirement for palliative care extends to the doctors’ entire plan, which happens to include the withdrawal of life support measures. Rather than actually address the issue of whether the removal of life support constitutes treatment requiring consent, the Justices conclude somewhat simply that the entire plan requires consent because it includes palliate care, which is a “treatment” under the Act. This means that if Ms. Salasel continues to withhold consent – which she likely will – the doctors “proposal” will have to be referred to the CCB.

Evidently, the issue facing the courts was not one of life or death. It was life, death or let someone else decide. Through some sound, yet crafty logic, both the Superior Court and the Court of Appeal managed to push the question into someone else’s lap.

Good luck, CCB.

It looks like Justice Scalia would have the last word. Earlier this week, the Supreme Court of the United States, in a 7-2 split, declared a California law that restricts the sale or rental of violent video games to minors unconstitutional. While Justice Alito did side with the majority in this case, his reasoning diverges from that of Justice Scalia. More interestingly, however, is Justice Clarence Thomas’s dissent. Thomas, though usually in agreement with Scalia and the conservative wing of the bench, leverages the same principle of legal originalism, yet he yields different results.

Originalism: An Overview

Briefly, originalism is a principle of interpretation that aims to discover the original meaning or intent of the Constitution. In particular, Justice Scalia upholds a version of constitutional originalism that looks to what the reasonable person living at the time the document was first adopted would have declared its ordinary meaning to be. Justice Antonin Scalia, a bright beacon of conservatism on the bench, is arguably the strongest proponent of originalism.

Today, constitutional originalism, for better or for worse, is inextricably linked to politics. The US Congress, led by Republicans, opened this year’s session with a reading of the Constitution, followed by a rule that was put forth whereby all proposed bills must cite a constitutional authority.

The close nexus that has formed between the conservative wing of America, such as the Tea Party movement, and legal originalists has made some scholars and politicians highly cautious. Following an originalist line of interpretation, we would return to the founders’ vision of America. For example, states could impose the death penalty on anyone, including juveniles and the mentally disabled, and there would be no abortion rights or rights of assisted suicide for the terminally ill. Moreover, Scalia famously, or infamously, argued that the 14^th Amendment, the equal-protection clause, was not meant to apply to discrimination based on sex or sexual orientation. The Supreme Court therefore erred by protecting both, as “nobody ever thought” that the Constitution would ban sex discrimination, according to Scalia.

To be or not to be an Originalist?

This case of Brown v. Entertainment Merchants Association provides the ideal platform for constitutional originalism. Video game technology did not exist at the time the founders drafted the constitution, so the justices, namely Scalia and Thomas, would have to speculate as to how the founders would have viewed such technology. (Cue Alito’s joke.) Ultimately, the Court would have to decide the issue of whether a California law that bans the rental or sale of violent video games to minors infringes on the First Amendment.

The law at issue covers games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what it suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political or scientific value for minors.”

Justice Scalia:

While he does not try to delve into the thoughts of James Madison, as Alito joked about, Scalia, writing for the majority of the Court, does offer reasons that are contextual to the drafting of the constitution. Scalia compares these video games to technologies that would have been around at the time – books and plays. “Like the protected books, plays and movies that preceded them, video games communicate ideas – and even social messages – through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world.” He continues down this path, noting that the Grimm’s’ Fairy Tales – from Cinderella’s sisters’ eyes being poked out by birds to cannibalism in “Hansel and Gretel” – were riddled with violence. Madison would have witnessed children exposed to violence in a similar way, in other words. Scalia concludes that this “suffices to confer First Amendment protection.”

Justices Roberts and Alito:

While Justices Samuel Alito and John Roberts voted with the majority, they are not in agreement with Scalia about the similarity of these various media. Mainly, Alito is not comfortable with Scalia’s dismissal of the differences between video games and other media. One example that Alito raises is a game where a child assumes the role of a character and goes on a mission where “the objective… is to rape a mother and her daughters.” Another video game demands its players to assassinate President John F. Kennedy. Video games construct a digital reality to the extent that children who play 3-D games may be able to “feel the blood [splattered] from the blown-off head” of a victim.

For Alito and Roberts, the California law may have survived a First Amendment challenge if it were more narrowly worded.

Justice Thomas:

Using Alito as a foil, Thomas proves to be the most interesting justice in this case. Thomas begins his dissent by beating the drums of originalism even louder than Scalia. He cites a number of cases where originalism is touted: “the goal is to discern the most likely public understanding of [that] provision at the time it was adopted” in interpreting a constitutional provision; this is because the Constitution is a written document, so “its meaning does not alter” (McDonald v. Chicago and McIntyre v. Ohio Elections Commission). It does not hurt that Thomas concurred in judgment in both of these cases.

Ultimately, Thomas agrees with Scalia and the majority that the law should be struck down. For Thomas, however, it is not because the law “abridg[es] the freedom of speech,” as the majority decided. Rather, for him, the First Amendment has never “stretched” so far as to include the freedom of speech of minors. Thomas’s reason is even more firmly grounded in originalism, as he declares that “the practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians.

Thomas spends the bulk of his dissent deferring to authorities such as John Locke, Jean Jacques Rousseau and Lydia Child to paint a picture of the Western family where parents control their children, despite children’s rights slowly coming into law in recent decades.

So Where does Originalism Leave Us?

While originalism seems to have prevailed at the end of the day in Brown v. Entertainment Merchants Association, the quibble between Justices Scalia and Thomas, two bulwarks of originalism, exposes methodological problems. One critique that liberal scholars have launched against originalists is that originalism is only adopted when it is convenient. If originalism were consistently adopted, then people could be punished for criticizing the government, the federal government can discriminate against whomever they wish, the Federal Reserve would be gone, the criminal justice system would fall apart, etc. Thus, originalism cannot be a principled tool of constitutional interpretation. It is more of a rhetorical argument – much in the same way as Thomas effectively harnesses the rhetoric of Locke and Rousseau in his dissent.

On the other hand, some liberal scholars note that originalism does not have to serve conservative ends exclusively. If the Court really took the entire text and history of the Constitution seriously – such as the 19^th Amendment, which gave women the right to vote – then originalism would actually alleviate problems of gender discrimination. Liberty and equality would be furthered if the “originalist” Court would take 20^th century amendments as seriously as those passed in the 18^th- and 19^th centuries.

- Abella J. in R. v. O’Brien

The trial judge’s reasons show that he was alive to the concerns raised by inappropriate aspects of the trial, and took them into account in his careful and detailed reasons.

- McLachlin C.J. in R. v. E.M.W.

The month of June has seen not one but two important statements from the Supreme Court of Canada on criminal procedure and evidence. In R. v. O’Brien, the majority of the Supreme Court, led by Abella J., seemed inclined to take a trial judge’s words at face value. If the trial judge asserts that his decision was based “entirely” on DNA evidence, then any error in law could only be harmless and could not constitute a substantial wrong or miscarriage of justice. One week later, the majority of the Court in R. v. E.M.W. adds another wrinkle: even if the trial judge did not directly address the inappropriate aspects of the trial, it may be inferred from his reasoning that he did in fact give them appropriate weight (“alive to the concerns”).

Put together, the logic behind these two statements from our top court is confounding. Unraveling the logic, these two cases, particularly the more recent case of R. v. E.M.W., reveal a growing uncertainty about judicial decision-making at the lower court levels.

A Divided Appellate Court:

E.M.W. was convicted of sexually assaulting his young daughter after he stood trial before a judge alone. The defendant subsequently appealed the decision. At the Court of Appeal, the majority allowed the appeal from conviction and ordered a new trial for the reason that a miscarriage of justice had taken place. The dissenting judge, Fichaud J.A., argued that a miscarriage of justice could not be established. Even if it could be established, the majority had failed to raise the grounds for it in the Notice of Appeal.

Against the Current: Fish J.’s Dissent in R. v. E.M.W.

Usually, when a case has been backed by a majority decision from the Court of Appeal, the Supreme Court returns a unanimous decision. In the case of R. v. E.M.W. decided last week, the Court ended up with a very uncommon 6-1 split. Fish J. was the sole voice of dissent. His message? The issues in this case notuncontroversial.

(Interestingly, Fish J. abstained from the decision in R. v. O’Brien while LeBel J. abstained from this decision. One could imagine that those two more liberal-leaning justices would have sided with each other. Binnie J., in contrast, dissented in the earlier case of R. v. O’Brien but agreed with the majority inR. v. E.M.W.)

While McLachlin C.J., writing for the majority of the Court, teases out three main issues in the case – jurisdiction, evidence and trial procedure – Fish J. focuses solely on the last issue. In his dissent, Fish J. takes issue with how the trial judge conducted the court. “I have concluded that the respondent’s trial was unsatisfactory ― notably because of the inappropriate and prejudicial cross-examinations of the respondent and N.L., the complainant’s grandmother, who was an important defence witness.” At this point, Fish J. does not necessarily deviate too far from his colleagues on the Court. The majority of the Court acknowledges that errors were made during the initial proceeding and that, as a whole, “the trial was far from perfect.” Fish, however, refuses to buy into the majority’s reasoning that, if the trial judge’s understanding of the evidence as a whole and the proceeding overall were sound, then these errors could not have given rise to a miscarriage of justice. Rather, Fish assertively states at the end that, “I recognize that the trial judge delivered detailed and thoughtful reasons for concluding as he did… In my respectful view, however, they cannot set right the unsatisfactory nature of the trial.”

Fish Out of Water?

While Fish does not concern himself with the issues of jurisdiction and evidence, these issues remain contentious in R. v. E.M.W. The majority of the Court first turns to the issue raised by Fichaud J.A. – did the Court of Appeal even have jurisdiction to hear the issue of the miscarriage of justice?

a. Jurisdiction

Here, the Court seems very comfortable granting additional discretion to the lower courts. Summarizing their position, McLachlin states that, “We agree with the respondent that the failure to expressly raise miscarriage of justice as a distinct ground of appeal does not deprive a Court of Appeal of jurisdiction to consider that issue.  A potential miscarriage of justice is always something a court must be able to consider [italics added].”

This position adopted by McLachlin seems sensible, granting an appropriate degree of discretion to the Court of Appeal to ensure that technicalities do not get in the way of a fair and full hearing. As well, it is very sensible for McLachlin to note that it is part and parcel of good practice to grant an adjournment in cases where the court wishes to explore an issue that has not yet been raised.

b. Improper Use of Evidence

At this point, the majority of the Court sets their sights on the trial judge. One of the reasons why the Court of Appeal set aside the conviction and ordered a new trial is that they deemed the trial judge to have improperly used evidence. The defendant had made statements to a friend and the police prior to testifying at trial. These statements were brought up or at least alluded to during the trial, so as to give an unfair advantage to the prosecution. The Supreme Court’s position on this issue seems to be somewhat controversial: “In our view, the majority of the Court of Appeal was wrong to seize on the trial judge’s reference to the content of the complainant’s disclosures to show that he had improperly used the evidence about these disclosures. The trial judge’s careful and thorough reasons when read as a whole in light of the trial record do not support the inference drawn by the majority of the Court of Appeal.”

McLachlin C.J. appears to be putting forth the argument that the Court of Appeal was making too big of a deal of the fact that the trial judge had referred to evidence that was not properly gathered (“it was wrong to seize on…”). The majority of the Court opts to not directly challenge the Court of Appeal as to whether these references constitute an improper use of evidence in and of themselves. Taken within the context of the rest of the trial judge’s carefully reasoned decision – taken “as a whole” in the words of the Court – these references do not constitute an improper use of evidence, however.

c. Miscarriage of justice

It is the issue of miscarriage of justice that forces Fish to separate himself from the crowd. Both he and the majority of the Court agree that the trial, in one way or another, was unsatisfactory. They point to different reasons, however: McLachlin points to “tasteless” and “unsavory” questions that were asked or statements that were made and the “unnecessary” soliloquizing on personal matters by the Crown counsel; Fish, on the other hand, is dissatisfied with the “inappropriate and prejudicial cross-examinations of the respondent and N.L., the complainant’s grandmother, who was an important defence witness.” McLachlin does not refute that the trial was conducted inadequately. Rather, she and most of her colleagues have read those inadequacies into the trial judge’s decision: “The trial judge’s reasons show that he was alive to the concerns raised by inappropriate aspects of the trial, and took them into account in his careful and detailed reasons.” For that reason, “the shortcomings of the trial… did not, in this case, result in a miscarriage of justice.” The majority of the bench Court insists that the trial judge had mitigated the potential miscarriage of justice, as they found the judge to have implicitly acknowledged it in his well thought out decision.

R. v. O’Brien and R. v. E.M.W.: Two Sides of the Same Coin?

Regarding the implicit acknowledgment of the potential miscarriage of justice, Fish J. rightly questions whether the Court is giving the trial judge too much credit in R. v. E.M.W. Thus, R. v. O’Brien is really a different side of the same coin. LeBel J. and Binnie J. question if the Court is giving the trial judge too much credit when he is taken at his word completely. Just because the trial judge states that his conclusion arose out of admissible evidence does not mean that the inadmissible evidence, character evidence, for example, played no part in shaping the judge’s conclusion and, thus, should be allowed.

Flowing from a spate of privacy cases at SCOTUS (most notably, Snyder v. Phelps covered by fellow Contributing Editor, Alysia Lau here and our Amici Curiae here and NASA v. Nelson that I covered here and here) as well as contributing to a general trend of ruling for “no constitutional right to privacy,” FCC v. AT&T Inc. (2011) No. 90-1279, 582 F. 3d 490 decided on March 1, 2011 continued a line of rulings that corporations as separate legal persons are not entitled to the personal right to privacy.

The telecommunications company, AT&T, was under investigation by the Federal Communications Commission (FCC). This independent agency of the U.S government had, in the words of the Third Circuit decision (pdf link) “ordered the production of invoices, internal emails and billing information, responses to interrogatories, names of employees involved in alleged overbilling, and AT&T’s assessment of the extent to which its employees’ actions violated its internal code of conduct.”

SCOTUS held that corporations do not have a right of personal privacy for purposes of Exemption 7(C) of the Freedom of Information Act that requires corporations to disclose law enforcement records to a federal agency unless disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

AT&T’s argument against disclosing its “embarrassing” record of overcharging the U.S government for its E-Rate services was that these records fell under the exemption mentioned above due to the corporation’s alleged right to personal privacy for its internal information.

A Lesson in Using the Dictionary

In a unanimous 8-0 decision, Roberts wrote what has been identified by the media as a “teacher-like” “grammar lesson” in corporate privacy rights:

Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read”… “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” which has little to do with “corn” (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of anaxis bent at right angles,” “cranky” can mean “given to fretful fussiness…

All of this to explain that:

“Person” is a defined term in the statute; “personal” is not. When a statute does not define a term, we typically “give the phrase its ordinary meaning”…“Personal” ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word “personal” to describe them.

The decision turned on a strict interpretation of the language of the statute and utilized several dictionary definitions to show that “ordinary usage of a noun and its adjective form may have different meanings as disparate as any two unrelated words.” SCOTUS ruled on this reasoning that artificial entities are not “personal” despite being separate legal “persons” and are therefore not subject to the statutory exemption for the disclosure of “personal” information.

Bring-On the Adjective-laden Legal Reasoning

I often enjoy reading decisions by SCOTUS and rarely hesitate to applaud colourful commentary and generous use of non-legalese descriptions and catchy phrases to lay down the law (particularly by Justice Scalia) — a method rarely used by Canadian Supreme Court justices, except Justice Binnie’s clever dissent in R. v. Sinclair.

This U.S. judgement is certainly one of these brisk, informative reads as it decided the case in 15-pages, a rather dry subject matter of corporate “personhood” by making it more approachably human (excuse the pun). Why else did the judge choose to compare a random choice of words such as “corn” vs. “corny,” “crab” vs. “crabbed,” and “crank” vs. “cranky” in a case about corporate personality, except for reasons of style and plain language emphasis that spells it out for the layperson without cloaking the answer in convoluted legalese. (This style is particularly intriguing for someone like myself with an interest in journalism, as it provides my legal coverage with plenty of quotable material). The bottom-line message in this case is clear: “personal privacy” is not a statutory right, not for corporations, but for living, breathing human beings.

s. 38  of the Canada Evidence Act, RSC 1985, c. C-5 (“CEA”) sets out an elaborate framework to (where possible) reconcile the state’s dual obligations of protecting  national security and prosecuting accused criminals.  R. v. Ahmad, 2011 SCC 6 questioned whether this legislation went too far.   An unanimous Court held that it did not.

s. 38

s. 38 attempts to reconcile the two competing objectives of protecting national security and effectively combatting crime. Without going into excessive detail here, the important provisions to this case comment are outlined below.

First, disclosure (in court) of allegedly sensitive material may be authorized if it is found there is no threat to national security. (s. 38.06(1)).

If there is a national security threat, disclosure may only be authorized if the public interest in disclosure outweighs the public interest in non-disclosure ((38.06(2)).

Conditions may also be imposed on disclosure (s. 38.07).  At the same time, if disclosure is deemed necessary, a judge presiding over the criminal trial has the power to make any order considered necessary in order to protect the accused’s rights to a fair trial, although the judge is powerless to order production of the material in question. (s. 38.14)

Since we’ll find s. 38.14 to be a critical provision to this analysis, it is reproduced below.

38.14 (1) The person presiding at a criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 38.06(1) to (3) in relation to that proceeding, any judgment made on appeal from, or review of, the order, or any certificate issued under section 38.13.

(2) The orders that may be made under subsection (1) include, but are not limited to, the following orders:

(a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence;

(b) an order effecting a stay of the proceedings; and

(c) an order finding against any party on any issue relating to information the disclosure of which is prohibited.

Background

18 alleged terrorists were arrested on the suspicion that they were plotting terrorist attacks in Toronto.  Before trial, the Crown notified the Attorney General of Canada that the proceedings could potentially disclosed sensitive government information.  Pursuant to s. 38 of the CEA, the Attorney General brought the issue before the Federal Court, who ordered a hearing and required that notice be given to the Superior Court judge (Dawson J.).  The accused then applied in Superior Court, challenging the constitutionality of s. 38.

Dawson J. of the Ontario Superior Court held that the s. 38 scheme was unconstitutional. Specifically, he held that the scheme violated s. 96 of the Constitution Act, 1867, stating that by exclusivly vesting “privilege” determinations in federal court the provision invaded the core jurisdiction of superior courts. He found this violation was an unjustifiable infringement of s. 7 of the Charter – the right to life, liberty and security of the person.

Interpreting Section 38

The unanimous reasons of the Court on this appeal begin with an in-depth analysis and interpretation of the section.

First, the reasons apply the well-accepted contextual and purposive method of statutory interpretation, stating that preventing the disclosure of sensitive data cannot prima facie be equated with denying an accused the right to make a full answer and defence (which would result in an unfair trial).  The legislature is presumed to have drafted the provision to conform with the Charter (R. v. Hamilton, 2005 SCC 47).  This presumption is bolstered here by the existence of s. 38.14 of the CEA, which clearly indicates that the fair trial rights of the accused must be protected in applying the other provisions of the scheme.

Having established these critical assumptions, the Court clarified that the trial judge has a right to receive notice of a s. 38 application being commenced in Federal Court.  This notice will trigger s. 38.14, where the trial judge must then consider the impact of non-disclosure on trial fairness.  In so doing, the trial judge may require a summary of the information or more substantive information regarding the content.  It is still unclear as to the amount required by a trial judge, which then requires the trial judge to determine whether they have a sufficient basis on which to exercise their discretion judicially. With this, the Court went on to discuss the section’s constitutionality.

Section 38 Passes Constitutional Muster

The constitutional analysis centres around two provisions in the constitution: s. 7 of the Charter and s. 96 of the Constitution Act, 1867.

s. 96 Argument

Section 96 gives superior, district and county courts in each province the jurisdiction to hear and decide cases.  The scope of this jurisdiction has always been a topic of heated debate,  but for our purposes, scope was not at issue.

A main aspect of the respondent’s argument was that the trial judge’s inability to completely access the material in question interfered with the ability of superior court judges to apply the Constitution, which invaded the core jurisdiction of superior courts.

The test applicable to determining if a conferral of power violates s. 96 is set out in Re Residential Tenancies Act, 1979, [1981] 1 SCR 714 and poses three questions.

1. Whether the power conferred broadly conforms to a power exercised by a court at Confederation;
2. If so, whether the power is judicial and;
3. Whether the power is subsidiary or ancillary to an administration function or necessarily incidental to such a function.

The first question under the test requires a historical inquiry.  The SCC, after conducting this inquiry, found that superior courts did not exercise any such power of review at Confederation.  As a result, the respondent’s argument failed the first branch of the Residential Tenancies test.

In obiter (as the historical test dispersed of the issue) the SCC went on to answer another constitutional attack.  MacMillan Bloedel Ltd. v. Simpson, [1995] 4 SCR 725 states that if legislation purports to confer exclusive jurisdiction of a s. 96 matter, it will be unconstitutional.  The SCC held that, here, the core jurisdiction was not removed from any s. 96 court – as criminal courts retain the ability to ensure every subject of a criminal prosecution is able to receive a fundamentally fair trial (which is supported by s. 38.14).

s. 7 of the Charter

The statutory scheme was also found to violate s. 7 as it had the effect of violating the accused’s right to timely disclosure of pertinent information.  The SCC quickly disposed of this argument, finding that s. 38.14 allows trial judges to order whatever remedy pursuant to the Charter is required to protect the accused’s right to a fair trial – even a drastic remedy such as a stay of proceedings.  In drafting the section, Parliament chose to live with such drastic outcomes.

Conclusion

When I first heard about this case and discussed it with other law students, a generally pessimistic view emerged that the SCC had, yet again, upheld “public safety” at the expense of an accused’s right to a fair trial.  But upon a close reading of the written reasons, one can see that this is not the case.  Specifically, the entire analysis focuses on s. 38.14 of the CEA, which  requires a trial judge to consider the accused’s right to a fair trial and, if necessary, order a less-than-ideal outcome (such as a stay of proceedings).  If that isn’t a fair and reasonable balancing of the two important objectives, I don’t know what is.

On October 1, 2010, The Lawyer’s Weekly, a news source for the Canadian legal community, published an article entitled “Drop in caseload worries Supreme Court of Canada observers.” Thus far, it appears to have made an accurate prediction for the SCC. In addition to asking if the SCC is taking on enough cases, the article points out the fact that “the top court has decided fewer cases— and opened its doors to fewer litigants— in the first nine months of 2010 than in any comparable period in the court’s modern history.”

In addition to pointing out a caseload drop, the article reported a “continuing…downward trend in the number of appeals [the SCC] accepts to hear.” More notably, are its predictions for the upcoming year:

[From January 1, 2010 to October 1, 2010], the judges only accepted 31 cases of the 341 leave applications (nine per cent) they decided in 2010, according to court statistics. If that pattern persists, the court’s schedule could be lighter in 2011-2012 than it has been in 2010…

Here at The Court, we’ve started a tradition of compiling an annual list of top SCC cases at our OZZY Awards. This year may be a difficult choice to make a list of earth-shattering SCC precedents because we may only come up with a scant few truly ground-breaking cases. (Note: Readers are free to differ).

Perhaps one of the most striking lower court decisions of the year was handed down by Justice Susan Himel of the Ontario Superior Court of Justice in Bedford v. Canada, which struck down Ontario’s prostitution laws. The case continues to wind its way through the justice system towards its most likely final destination, the Supreme Court. A fellow editor here at The Court covered this case here.

Arguably, decisions handed down by the SCC itself has shown waffling decisions that are unlike major precedent setting standards as exemplified in 2009 by R. v. Grant as our Criminal Judgment of the Year in 2009 and Grant v. Torstar as our Civil Judgment of the Year. This year’s OZZY awards may be somewhat less spectacular given our options for 2010.

If this trend continues, the troubling result may be fewer heavily weighted High Court precedents in Canadian legal jurisprudence. Will ONCA decisions be left as our most innovative precedents? Will the SCC be busier in 2011-2012?

Now that it’s a new year, hopefully we’ll see things pick-up pace at the SCC. Stay tuned as The Court continues to follows its latest developments— in the meantime, developments in the lower courts here and high courts abroad will occupy our editorial dockets. Stay tuned for the release of our OZZY nominations on January 25th, 2011 that coincides with Hollywood’s Oscar film nominations and our final winners will be announced on February 27th, 2011.

At issue in this case, were “business method patents” which confer a monopoly on the exclusive use of new techniques of conducting business transactions, processing financial data, or operating an enterprise upon approval by a national patent office. Allowing these types of patents is particularly relevant in e-commerce and IT software industries that rely heavily on abstract business methods that are not traditional engineering inventions normally eligible for patent protection.

A month after Bilski, the United States Patent and Trademark Office (“USPTO”) released a Practice Notice (PDF link) designed to help examiners and practitioners determine subject matter eligibility under the Patent Act, 35 U.S.C. s. 101 (the “Act”).

Bilksi reached the Supreme Court after an appeal from the Federal Circuit in finding that Bilski’s application was not patent eligible. In this decision, the majority, led by Justice Kennedy, left open the door for business method patents, and, contrary to the decision of the Federal Circuit, held that the machine-or-transformation test for subject matter eligibility in processes was only a “useful clue” and not the only test.

The minority, led by Justice Stevens, issued a strongly worded concurring opinion that did not agree with the reasoning of the majority. The minority concluded that business method patents granted overly broad monopoly protection which would effectively stifle innovation and prejudice competition.

Notably, this case was a milestone for Former US Supreme Court Justice Stevens – Bilski was his last IP decision before retiring at the age of 89 after serving a record-breaking 34 years on the bench.

Background and Facts: “The Machine-or-Transformation Test”

Business partners, Bernard L. Bilski and Rand A. Warsaw appealed a series of decisions starting with a rejected patent application by David J. Kappos, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office, that their patent for a business method in their enterprise was ineligible for patent protection. As stated in their brief for the petitioner (PDF link), they sought to patent their invention, the “Energy Risk Management Method:”

[Bilski’s patent application] describes a method in which energy consumers, such as businesses and homeowners, are offered a fixed energy bill, for example, for the winter so they can avoid the risk of high heating bills due to abnormally cold weather. An intermediary or ‘commodity provider’ sells natural gas, in this example, to a consumer at a fixed price based on its risk position for a given period of time, thus isolating the consumer from an unusual spike in demand caused by a cold winter. Regardless of how much gas the con-sumer uses consistent with the method, the heating bill will remain fixed.

Bilski petitioned the patent examiner for the protection of this claimed invention that explains how commodities buyers and sellers can hedge price fluctuations for a series of financial transactions in the energy market. Bilski tried to patent this business method which was rejected by the patent examiner whose decision was affirmed by the Board of Patent Appeals and Interferences as well as by the Federal Circuit.

As cited by the Court of Appeal in Bilski, patenting business methods was first tested in the case of State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368, 1373 (“State Street”) under the Act. In rejecting the test in State Street that determined patentability based on whether the invention produced a “useful, concrete, and tangible result,” the Supreme Court applied the “machine-or-transformation test” to determine if there is indeed patentable subject material.

In this test, a “process” is patentable if it is (1) intrinsically linked to a “particular machine or apparatus” or (2) “transforms a particular article into a different state or thing.” Emphasis in the lower courts was placed on this test as the only one that must be satisfied to permit the patent to be registered. As an abstraction, rather than a traditional patentable “process” as enumerated in the Act, Bilski’s business method failed at the Appeal Court level and the case landed in the laps of the U.S. Supreme Court.

Majority suggests wide horizons for “business method patents”

Kennedy, J., with Roberts, C.J., Thomas, Alito, JJ., joining the opinion in full and Scalia, J., in part agreed that business methods may be patentable. Justice Kennedy leading the majority overturned the lower court decisions by stating that there is not only one test, but that other tests can be possible:

The machine-or-transformation test is not the sole test for patent eligibility under s. 101. The Court’s precedents establish that although that test may be a useful and important clue or investigative tool, it is not the sole test for deciding whether an invention is a patent-eligible ‘process’ under s. 101.

The majority also expressed concern for opening the floodgates to a whirlwind of patents for an infinite number of business methods in an “Information Age” dominating many business tasks:

If a high enough bar is not set when considering patent applications of this sort, patent examiners and courts could be flooded with claims that would put a chill on creative endeavor and dynamic change.

However, Justice Kennedy did not outline a specific test or suggest what shape other tests could take which left the intellectual property community at a loss for definitive answers until USPTO’s recent practice notice provided some practical clarity to an otherwise open-ended decision.

Concurring Dissent says business method patents are “comical”

Stevens, J, Breyer, Sotomayor, JJ for the concurring dissent, on the other hand, came down harshly on even the possibility of business method patents. In the eyes of Justice Stevens, Bilski’s business method was too abstract and therefore not patentable. He criticized the majority for failing to come up with a clear test besides the “machine-or-transformation” criteria:

The Court [the majority], in sum, never provides a satisfying account of what constitutes an unpatentable abstract idea. Indeed, the Court does not even explain if it is using the machine-or-transformation criteria […] This mode of analysis (or lack thereof) may have led to the correct outcome in this case, but it also means that the Court’s musings on this issue stand for very little.

While Justice Stevens concurred with the majority in the result, he dissented in his reasoning by giving a resounding “no” to business method as processes worthy of patent protection. By using the logic of protecting business methods as a “process,” he illustrated examples that such permission “would render s. 101 almost comical.” He stated:

A process for training a dog, a series of dance steps, a method of shooting a basketball, maybe even words, stories, or songs if framed as the steps of typing letters or uttering sounds—all would be patent-eligible.

He too was concerned for the floodgates opening to inappropriate patenting of processes that proliferate many businesses:

If business methods could be patented, then many business decisions, no matter how small, could be potential violations. Businesses would either live in constant fear of litigation.

Patent policy struggles to adapt to an era of information-based inventions

Business method patents are currently controversial in the U.S, which impacts global markets including Canada. Canadian patent law is affected by the U.S legal approach to business methods as would any jurisdiction where business with its multitude of “processes” and “methods” are conducted. Such patents may be overly broad as Bilski’s concurring dissent illustrated; a single business can have countless “methods” to patent.

In my opinion, business method patents can be too broadly construed. Imagine the stock market trying to patent a basic process like a call option or hedging ability for securities. Unmentioned in Bilski was a set of different facts in the patent application of Amazon 1-Click that met with success at the U.S. Patent Examiner’s Office over a decade ago. Their successful patent application for a single-mouse click to purchase online products allowed for an infringement suit brought by Amazon.com, Inc. against Barnes & Noble, who responded that such a patent covering a common method for e-commerce transactions would ruin its business. Interestingly, last year this same patent application failed in Canada and is currently on appeal to the Federal Court.

A U.S. Supreme Court decision favouring these patents could have flooded IP lawyers’ desks with potential patents, strategies, portfolios, investments and ultimately infringements. At its broadest reach, patenting an abstract business method could create justification to patent any number of business exchanges, transactions and models that could limit the flow of capital markets. Potential problems with business method patents, as indicated by Justice Stevens’ dissent, is concern for ensuring competitiveness while balancing it with a monopoly conferred to the inventor of business methods that they wish to protect. Although he does not clearly state a test, Justice Kennedy considers the possibility of these types of patents in order to adapt the patent system to a market shifting from a manufacturing-based to information-based economy.

While a similar test case of this nature has yet to appear on Canadian court dockets, cases like Bilski are fundamentally affecting the shape of the business of patents. In my opinion, the courts need to provide a narrow test that limits the floodgates of patenting just about any business concept ranging from a single-mouse click to an exchange of capital for goods that primarily drives capitalism. Judging from the failure of the Amazon 1-Click patent application in Canada, our courts appear to lean towards Justice Stevens’ dissent that business methods should not be patentable. Indeed, reliance on a U.S. Practice Notice for guidance may only be a temporary solution as some patent-watchers suggest that trade secret protection may offer a better answer.