R v Rogers Communications: Some Guidelines for Big Brother

In R v Rogers Communications, 2016 ONSC 70 [Rogers], Justice John Sproat of the Ontario Superior Court of Justice provided some much needed guidance to police and issuing justices when handling production orders for “tower dumps.” Sought by investigators through a court order, tower dumps occur when a telecom company is compelled to provide the names and numbers of cellphone users that have used a particular cellphone tower. So why should you care if you did not commit a crime? What are the police going to do with that information? There is a good chance that if the information is not relevant to the investigation, it will be discarded and never see the light of day. But why should police have access to so much data when they are looking only for the tiny percentage that is relevant?

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[filed: Access to Information Charter Constitutional Law Criminal Law Criminal Procedure Privacy]

Some Suggestions on Regulating Technological Innovation: City of Toronto v Uber Canada Inc.

In November of last year, I wrote an article for The Court on the recent decision in City of Toronto v Uber Canada Inc., 2015 ONSC 3572 [“Uber”] by the Ontario Superior Court of Justice (“ONSC”). In Uber, Justice Sean F. Dunphy ruled that Uber is neither a “taxicab broker” nor a “limousine service” within the meaning of the City of Toronto Municipal Code, and thus cannot be prohibited from operating without a license.  In other words, the Court said that Uber cannot be regulated under the existing municipal framework that has regulated the taxi industry in Toronto for several decades.  However,  as Justice Dunphy alluded to, it is open to municipalities to develop new approaches to regulating this form of Disruptive Innovative Technology (“DIT”), however, it is abundantly clear that ‘outside the box’  thinking is necessary.

In this regard, I suggested in the above referenced piece that Uber, from a policy standpoint, should not be viewed entirely as an elusive regulatory subject. Instead, it is better understood as mimicking the role that law plays in enabling a market framework to exist, as market regulator, constraining the behavior of market actors in the public interest. I further suggested that Uber’s framework of rules and their implementation might surpass the public interest function played by the municipality in the areas of driver safety, passenger safety, and cost regulation. The purpose of this article is to further explore that claim, highlight the strengths and weaknesses of the Uber framework in light of recent information, and propose how municipalities might approach the issue.

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[filed: Municipal Law]

Livent v Deloitte: Has the Fat Lady Finally Sung?

The Executives of Livent were masters of live performance. Known for producing popular shows such as The Phantom of the Opera and Show Boat, they never thought their own escapades would play out in the media as a protracted drama with a final act orchestrated by the highest court in Ontario.

Early in January, the Court of Appeal for Ontario (“ONCA”) sealed a critical chapter in the decades-long saga between Livent Inc. (“Livent”) and Deloitte & Touche LLP (“Deloitte”) (Livent Inc. v Deloitte & Touche, [2016] ONCA 11). The management at Livent were engaged in fraudulent practices and were misleading creditors, investors, and the general public about the financial profitability of the production company. They were floundering in debt and walked a tight rope between suppression and discovery over the course of several years.  When the jig was finally up, not only were the executives of Livent in hot water but their auditors (Deloitte) were on the hook as well.

The leaders of Livent were handed criminal convictions and served prison time while Deloitte experienced a civil suit defeat to the tune of $118 million. The case determined that Deloitte was negligent in its auditing practices and contributed to the losses suffered by Livent.

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[filed: Appeal Watch Commercial Law Contracts Corporate law Media Law Regulatory Law Torts]

BC Court of Appeal Upholds a Reasonable Expectation of Privacy in a Text Message: R v Pelucco

Relatively recent advances in technology and surveillance powers raise new questions about expectations of privacy that an individual may have in regards to that technology. For example, courts have held that individuals have a high expectation of privacy in their own homes, as the oft quoted line from Semayne’s Case, 77 Eng Rep 194; 5 Co Rep 91 (1604) illustrates: “the house of every one is to him as his castle and fortress.”

Similar to the home, the information that can be obtained from a search of a computer is highly personal, as it can illustrate an individual’s private thoughts in the subjects they choose to search on the Internet, or in the projects or photos stored on the hard drive. Thus there is a high reasonable expectation of privacy in a computer.

Yet with the rise of communication by text message, courts have struggled to define the expectation of privacy in a text message or in the cell phone itself. The question for the courts is whether a text message is more like an email or a written form of a telephone conversation.

Furthermore, courts have questioned whether it makes a difference if the text message is intercepted, or if it is read after it has already been delivered to the recipient. While it seems like text messages and cell phones have been in existence for quite some time, it is only recently that the Supreme Court of Canada contemplated these issues in relation to the protections afforded by section 8 of the Charter, the right to be free from unreasonable search and seizure. For this reason, lower courts are also still grappling with these determinations as to the expectation of privacy that one has in a cell phone.

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[filed: Charter Criminal Law Criminal Procedure]

Canada (Attorney General) v Gatien: How the Federal Regulator for Workplace Violence handled Workplace Violence

Courts have long grappled with when to give deference to tribunals. In Canada (Attorney General) v Gatien 2016 FCA 3 [Gatien FCA], the courts return to the level of deference owed to decisions made by the Public Service Labour Relation Board (“PSLRB”). Interestingly, in Gatien FCA Ms. Gatien, who won at the PLSRB, sought judicial review of her award. The PSLRB awarded Ms. Gatien all the relief she sought, except aggravated damages. The Federal Court of Appeal (“FCA”) correctly overturned the Federal Court (“FC”) and applied the reasonableness standard to the PSLRB. The PSLRB’s holding was thus found to be within the ambit of reasonable outcomes.
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[filed: Administrative Law]

Live from the SCC: Extending Time to Respond to Carter v Canada

On February 6, 2015, the Supreme Court of Canada (“SCC”) handed down its decision in Carter v Canada (Attorney General), [2015] 1 SCR 331 [Carter] – a historic ruling wherein the criminal prohibition on physician assisted suicide was declared unconstitutional, inconsistent with section 7 of the Charter.  The declaration of invalidity was suspended by one year, and is presently set to expire on February 6, 2016 – at which point sections 14 and 241(b) of the Criminal Code, RSC 1985, c C-46 will be void, in accordance with the following framework:

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[filed: Charter]

Yukon Francophone School Board v Yukon: the School Board’s Powers

There exists within the territory of the Yukon only one French-language school, École Émilie-Tremblay, which is governed by the only school board in the Yukon, the Francophone School Board (“Board”). In 2009, this lone Board sued the Yukon government for what it claimed were deficiencies in the provision of minority language education. In 2015, the Board had the opportunity to argue its case at the Supreme Court of Canada (“SCC”) in Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 [Yukon]. The main issue at hand, as discussed below, revolves around whether it is the Yukon government or the Board who gets to decide which student is eligible to attend École Émilie-Tremblay.

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[filed: Charter]

Remedying Hypothetical Charter Breaches: Lessons from R v Appulonappa

The newest member in the illustrious “class of section seven” Charter jurisprudence is R v Appulonappa, 2015 SCC 59 [Appulonappa], a recent Supreme Court of Canada (“SCC”) ruling on the constitutionality of a federal human smuggling offence. The decision is not only noteworthy for its political significance (stemming from a refugee controversy taking place several years ago), but also because of the SCC’s use of reasonably foreseeable hypotheticals in assessing the effect of the legislation. Below, I seek to analyze and question the application of the “reasonable hypothetical” doctrine in section seven (and twelve) litigation. I also explore the remedial difficulties the doctrine poses for decision-makers.

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[filed: Charter Constitutional Law Criminal Law International Law]

Second Class Citizenship in Canada: through the Eyes of a Second Class Citizen

“It’s official – second class citizenship goes into effect.” – British Columbia Civil Liberties Association (“BCCLA”), regarding Bill C-24 (now law).

Strong words.

I am always skeptical of strong words. More than half the time, they are hyperbole intended to deceive. I was skeptical of these words, too. So I went straight to the source: the Citizenship Act, RSC, 1985, c C-29 [Citizenship Act].

It turned out that, in my humble opinion, at least, the BCCLA is right to call the new regime dual class citizenship, and it is right to, together with the Canadian Association of Refugee Lawyers (“CARL”), launch a constitutional challenge. There are three categories of insidious changes: terrorism-related offences, “intent to reside,” and changes in the revocation appeal process.

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[filed: Uncategorized]

Is the New NCR Defense Law Too Little, Too Late?

Murder in Shoppers Drug Mart

An apparently random stabbing amid the hustle and bustle of Christmas shoppers and downtown professionals stunned the City of Toronto. Rosemarie Junor was making a quick midday stop at a Shoppers Drug Mart when she was brutally attacked by an unknown assailant who left a grave knife wound through her heart. Beloved by many, Ms. Junor, a 28-year-old newlywed, clung to her life for several days before succumbing to her injuries. She was laid to rest on December 22, 2015.

In short measure, the Toronto Police Service identified the suspect as 40-year-old Rohinie Bisesar. In the weeks that have since passed, a complicated picture has developed of Ms. Bisesar—who is now charged with second-degree murder. First, it was believed that the two women must have known one another and the attack stemmed from a domestic dispute. However, those rumours have been silenced with new information that the victim and suspect were complete strangers. Instead, there is reason to believe that Ms. Bisesar is an untreated schizophrenic and it was this that led to the slaying of the victim.

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[filed: Charter Criminal Code Criminal Law Criminal Procedure NCR]