News

Court considers use of data extraction tool and warrant requirements regarding searches of cell phones

In R. v. Sinnappillai, Boswell J of the Ontario Superior Court of Justice presided over the trial of the accused, who was charged with luring a minor for the purposes of prostitution and sexual touching. The charges in fact resulted from a sting operation in which a police officer communicated with the accused via text, indicating that “she” was a 15-year old girl and setting up a meeting at a hotel room. The “customer” texted the officer several times in the hours and minutes leading up to the meeting time, and the accused arrived at the hotel room at the appointed time. The police received a warrant to search the accused’s Samsung phone to see if it contained the matching set of text messages that the officer’s phone did. In order to do the search, a tech crimes officer hooked the phone up to a “universal forensic extraction device” (UFED), which lacked the ability to extract only a portion of the phone’s contents. The officer followed his standard practice, which was to extract all of the phone’s data (essentially creating a mirror image of the phone) and then searching the extracted data. The search revealed the text conversation and a matching call record. The tech crimes officer stored the mirror image on a secure police server.

At a later preliminary hearing, the police surmised that the accused might raise an inability to communicate in English as part of his defence. They obtained a second warrant and did a second search which turned up additional text messages. The mirror image was left on the police server, but the police did not report the results of either search as required by the warrants and the Criminal Code. The accused raised a number of arguments that neither the warrants nor s. 8 of the Charter had been complied with sufficiently, and asked that the data be excluded.

Early in the judgment, Boswell J observed:

[12] Almost everyone is by now familiar with the amazing array of functions that modern cell phones are capable of performing. Less people – though I suspect the number is growing – are alive to the fact that, commensurate with those functions, cell phones are repositories of immense amounts of core biographical data. They can reveal, amongst other things, where one has been and when; who one has talked to, when, for how long and sometimes what was said; who one’s associates are; and what websites one frequents. Cell phones are meticulous and reliable record-keepers.

[13] Law enforcement agencies are well aware that cell phones are frequently rich sources of evidence. Indeed, I would say anecdotally, that cell phone data now features prominently in a significant percentage of criminal cases tried before Ontario courts. It is certainly the central feature of this case.

The judge dismissed the accused’s argument that the manner in which the searches had proceeded amounted to an unauthorized search of the entire phone. The police already had the phone in their possession after the initial seizure, and “[c]opying the hard drive before searching it gave them nothing new and did not impact on Mr. Sinnappillai’s privacy interests.” The protocol followed, which involved imaging all of the data and then searching that data, was reasonable and Charter-compliant, given that it was impliedly authorized by the justice of the peace who issued the warrant and was necessary to preserve the integrity of the data. The police were also not obliged to destroy the mirror image after the first search, as the recent decision of the Ontario Court of Appeal in R. v. Nurse dictated that the police were permitted to retain and search the phone indefinitely so long as the warrant so permitted:

To conclude that Mr. MacLean [the tech crime officer] should have created a second mirrored image and searched that, as opposed to searching the image he had already created, would be to ignore common sense and practicality. Moreover, it would do nothing to advance Mr. Sinnappillai’s privacy concerns, since presumably the content of the second mirror image would be identical to the content of the first mirror image. Creating a second duplication would be nothing but a redundant ‘make-work’ task for Mr. MacLean.

However, Justice Boswell agreed with the accused’s argument that the police had failed to report the results of the searches to the issuing justice as required by the warrants and the Code. The Crown argued that the police’s report to the justice upon having seized the phone was sufficient, but “significantly higher privacy interests are engaged once the police begin to look in the phone and seize data.” As an earlier case had held:

As was subsequently held by the Supreme Court of Canada in Vu, the privacy interest in the data contained on a computer or similar device is subject to a separate level or layer of privacy protection from the seizure of the device itself. Treating supervision of the seized computer as a physical item as comparable to supervision of the data seized from the computers and USB keys is inconsistent with the concerns expressed in cases such as Vu and R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253. Consequently, I am of the view that failure to make a report to a justice in relation to the execution of the October 18, 2013 warrant constitutes a violation of s. 8 of the Charter.

Accordingly, there had been a breach of s. 8. However, Justice Boswell declined to exclude the evidence under s. 24(2) of the Charter. While the breaches were serious, there was no evidence of systemic police misconduct, and the law on the obligation to report back the results of cell phone searches was not entirely settled. The impact on the accused’s privacy was minimal, given that the police had obtained warrants for both searches and both the searches and seizures had been lawful. The evidence was reliable and important to the Crown’s case. Accordingly, the motion to exclude was dismissed.

Court rules jurisdiction over tort claims grounded due to defendant company’s e-commerce activities

In Vahle et al v. Global Work and Travel Co., Inc., two Ontario sisters had gone to Thailand on a work/travel excursion, brokered via the BC-based defendant company. They were injured in an accident while driving a scooter to their employment, and one sister was killed. The plaintiffs (the surviving sister and her parents) brought a number of tort actions in Ontario against Global, including negligence, negligent misrepresentation, and breach of contract and fiduciary obligations. All dealings between the sisters and Global were conducted through Global’s website. Global argued on a motion that the Ontario Superior Court did not have jurisdiction simpliciter and was not the most convenient forum for the actions.

Justice Paul Schabas of the Ontario Superior Court first noted the Supreme Court of Canada’s jurisprudence on jurisdiction simpliciter included a number of connecting factors which could establish jurisdiction presumptively (though all were rebuttable). On the first, the plaintiffs argued that the contract between the sisters and Global had been made in Ontario, but Justice Schabas applied the usual rule that the contract is made in the jurisdiction where the offeror receives notice of the offeree’s acceptance. The “postal acceptance” exception to the rule did not apply to faxes or emails. On the second presumptive factor, that a tort was committed in Ontario, the plaintiffs had pleaded that substantial negligent misrepresentations were made to them in Ontario, by Global via its website; and that Global’s negligence included failure to notify the parents after the accident and other steps which it should have taken in Ontario. Accordingly, this presumptive factor was made out.

Justice Schabas then turned to the contentious factor of whether Global was “carrying on a business” in Ontario. It was not sufficient that Global had a website that was accessible in Ontario, or that its online ads and promotions were received in Ontario via Google and Facebook. However:

[37] Here, the defendant engages in e-commerce in Ontario by contacting and contracting with travellers in Ontario. It does more than simply receive inquiries from clients based in Ontario. It also places foreign vacationers coming to Canada in Ontario through its working holiday program in Canada and works with businesses here who may employ those individuals. Global thus actively works with clients and businesses in Ontario.

[38] Since Van Breda, the Supreme Court has upheld orders of the British Columbia courts in which they exercised jurisdiction over Google even though it did not have servers or offices, or any employees in the province: Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 (CanLII), [2017] 1 SCR 824, affirming 2015 BCCA 265 (CanLII). In that case, Google did, however, gather information and data in British Columbia which led to targeted search results and targeted advertising towards residents of British Columbia.

[39] Global’s connections to Ontario are at least comparable to Google’s connections with British Columbia. Once contacted by Ontario residents, Global actively solicits their business, as it did here in what the plaintiffs describe as aggressive sales tactics towards them by email and telephone. Global knew that it was contracting with Ontario residents, and assured its clients that the contracts would be governed by “Canadian law” which may be understood by clients to mean the law of the province in which they are located. Accordingly, the plaintiffs have met the burden of demonstrating a good arguable case that Global carries on business in Ontario and there is a presumption of jurisdiction.

The defendant argued that the internet-based connection was weak and rebutted the presumptive factors. Justice Schabas held:

In this case, however, Global knew it was dealing with clients in Ontario. It frequently dealt with travellers coming from Ontario, as well as those wishing to have a working holiday in Ontario. Global’s representatives were aware that any representations they made to Nora and Marija were received by them in Ontario. Further, providing that “Canadian law” would apply [via the website] suggests that Global contemplated that it may be subject to Ontario law.

The connecting factors were made out, and Justice Schabas further found that Ontario was not forum non conveniens. In the result, the motion to dismiss for want of jurisdiction was dismissed.

California court invalidates bail condition allowing random searches of devices and social media accounts

In the case of In Re Ricardo P., the appellant was a juvenile offender and ward of the court who had pleaded guilty to two counts of felony burglary, and was placed on probation. He had admitted to the use of marijuana and told a probation officer that he had stopped using it since being apprehended for the robbery, as it interfered with his ability to think clearly. The juvenile court imposed a condition that he “[s]ubmit . . . electronics including passwords under [his] control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.” The court overruled the appellant’s objection that this condition was not related to the offences which he had committed, stating that monitoring the appellant’s drug usage was an important part of probation, and that it was not unusual for young people to “brag about their marijuana usage or drug usage, particularly their marijuana usage, by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.” This made the condition an appropriate part of the overall probation program, in the court’s view.

The case eventually proceeded to the California Supreme Court, which applied its test for when a probation order condition could be held invalid. It noted that the condition had no relation to the crime which was committed, given that there was no indication of the burglaries having anything to do with the use of electronic devices. Also, the condition related to conduct which was not itself criminal. The case turned, in the court’s view, on the third prong of their test, which asked whether the condition “requires or forbids conduct which is not reasonably related to future criminality.” Noting that the entire point of the condition had been to monitor whether the youth was “communicating about drugs or with people associated with drugs,” the court held that the condition was invalid because “the burden it imposes on Ricardo’s privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society.” There was no evidence in the record that the youth had actually been using drugs when he committed the burglaries, nor was there any evidence that he had used electronic devices to plan, discuss or commit burglaries. While the condition need not be related to particular past offences by the individual, there had to be a degree of proportionality between the burden imposed by the condition and the overall goal of preventing future criminality. Such proportionality was lacking here, as the condition “significantly burdens privacy interests”:

If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media by juveniles today. In virtually every case, one could hypothesize that monitoring a probationer’s electronic devices and social media might deter or prevent future criminal conduct. For example, an electronics search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on the ground that text messages, e-mails, or online photos could reveal evidence that the defendant possesses contraband or is participating in a gang. … Indeed, whatever crime a juvenile might have committed, it could be said that juveniles may use electronic devices and social media to mention or brag about their illicit activities.

The court commented that the prosecution’s argument that this ruling would prevent the imposition of commonly-used search conditions, such as those for person, property and residence, was flawed:

the Attorney General’s argument does not sufficiently take into account the potentially greater breadth of searches of electronic devices compared to traditional property or residence searches. (See Riley, supra, 573 U.S. at pp. 396– 397 [“[A] cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form — unless the phone is.”].) As noted, the electronics search condition here is expansive in its scope: It allows probation officers to remotely access Ricardo’s e-mail, text and voicemail messages, photos, and online accounts, including social media like Facebook and Twitter, at any time. It would potentially even allow officers to monitor Ricardo’s text, phone, or video communications in real time. Further, the condition lacks any temporal limitations, permitting officers to access digital information that long predated the imposition of Ricardo’s probation.

Accordingly, the condition was struck.

Professor’s tweets held to violate arbitration settlement agreement, university relieved of obligation to provide payment

In Acadia University v. Acadia University Faculty Association, the university had terminated Dr. Rick Mehta, a tenured professor, after there was controversy about various remarks he had made. The faculty association grieved the termination and the matter proceeded to a mediation, in which a confidential agreement was reached under which neither party admitted liability or culpability, and under which the university was to pay Mehta a specified amount. Despite the clear and strong confidentiality clause, Mehta began tweeting about the agreement within minutes of its conclusion, referring to himself as “vindicated” and making repeated references to “severance.” He was immediately advised by counsel for the faculty association to delete the tweets, but did not do so. At one point he deleted certain tweets but left others, and in a letter to the President of the university he threatened to release the agreement unless certain conditions were met.

Arbitrator William Kaplan held that it was “quite clear” that Mehta had breached the settlement agreement multiple times; quite apart from breaching the confidentiality clause, he had not been “vindicated” and it was highly inaccurate to refer to the payment provided for in the agreement as “severance.” He ruled:

Settlements in labour law are sacrosanct and given the repeated and continuing breaches, together with the absence of any mitigating circumstance or explanation, I find that the University is no longer required to honour the payment provision.

Hacker re-directs settlement funds paid by defendant, but defendant still on the hook

In St. Lawrence Testing & Inspection Co. Ltd. v. Lanark Leeds Distribution Ltd., Deputy Judge Shane A. Kelford heard a civil dispute between two companies, the central issue in which he summed as follows: “The Plaintiff and Defendant were both innocent victims of a ‘cybercrime’ which resulted in the loss of funds which were paid by the Defendants to settle the Plaintiff’s claim. Both parties are innocent. Unfortunately, one of them must bear the loss.” The two companies had agreed to settlement terms to resolve a dispute about an unpaid invoice. Baker, a paralegal at the law firm representing St. Lawrence, sent the terms of settlement to Lanark via email; the terms included that Lanark would pay $7,000.00 into the law firm’s trust account at a Bank of Montreal branch in Cornwall, Ontario. Less than three hours later, a hacker had taken over Baker’s email account and was intercepting all emails between her and Lanark. The hacker sent revised settlement terms to Lanark, under which Lanark would send the funds to a different account at a credit union in Medicine Hat, Alberta, which was held by someone named “Richard Hoehn.” Lanark asked for a physical address for Hoehn, which the hacker provided, and the funds were sent. There were several exchanges of emails between Lanark and the hacker in which Lanark sought confirmation that the funds had been received, and (the judge surmised) the hacker stalled until the funds cleared the Medicine Hat account.

When the fraud was discovered, it became clear that the hacker was unknown and that the funds were gone and probably unrecoverable. The law firm’s IT provider determined that the firm’s overall system had not been compromised, but just the email address of Baker, probably by way of a phishing attack or brute force (though she had a password in place that was “strong” by Microsoft’s standards). There was no evidence that the firm had been negligent in its IT security and the court held that Baker had acted reasonably and promptly once the fraud had been discovered, based on what she knew.

The question that arose was: which party was responsible for the settlement funds? Deputy Judge Kelford reviewed the similar 2017 case of Du v. Jameson Bank, in which Du sued the bank for accepting a request to transfer funds from a hacker purporting to be Du. In that case, Du had signed an account-holder agreement with the bank in which he agreed that: the bank was not obliged to question any request that came from an email account which Du authorized; he was responsible for his own email security; and he was aware of the risk associated with email requests. Outside gross negligence by the bank, Du had given up any potential claim. Here, however, there was no such agreement in place. Lanark argued that, similarly to the bank in Du, it was entitled to rely on email from Baker, the law firm’s representative and had no reasonable basis on which to question the revised instructions regarding the funds. St. Lawrence argued that Lanark should have been suspicious of the same-day revision of the instructions, and that there was no evidence of negligence by St. Lawrence or the law firm.

The court held:

56. As noted at the outset of these reasons, the issue in this case can be restated as follows: Where a computer fraudster assumes control of Victim A’s email account and, impersonating Victim A, issues instructions to Victim B, who then transfers funds intended for Victim A (or a third party) to the fraudster’s account, is Victim A liable for the loss?

57. In my view, the answer is “no”, unless:

a. Victim A and Victim B are parties to a contract which (i) authorizes Victim B to rely on email instructions from Victim A and, (ii) assuming compliance with the terms of the contract, shifts liability for a loss resulting from fraudulent payment instructions to Victim A;

b. There is evidence of willful misconduct or dishonesty by Victim A; or

c. There is negligence on the part of Victim A.

Deputy Judge Kelford continued:

59. By way of further reasoning, I see no basis on which to distinguish the circumstances of the fraud in this case from those in which a home computer or business computer is “hacked”, giving a fraudster access to the owner’s email account. The fraudster then sends out an email to all of the “contacts” in the owner’s email address book, asking the recipient to wire funds (typically $1,000 to $5,000) immediately to a PayPal or similar account able to receive electronic funds transfers. Assuming that the computer owner took the reasonable and recommended security precautions for its email account, I see no basis on which the computer owner could be held liable to reimburse those individuals who unfortunately fall victim to the fraud.

60. In reviewing legal commentary on computer fraud, this is clearly an area that would benefit from legislation to establish clear principles and guidelines for the allocation of liability in the event of computer frauds, which are increasing in number. In the United States, commentary with respect to the Uniform Commercial Code provisions dealing with wire transfer fraud suggests that in most cases, absent evidence of negligence or malfeasance by the “beneficiary” (receiving party), it is the “originator” of the transfer who is in fact dealing with the fraudster (albeit unknowingly), and is therefore in the best position to recognize potential indicia of fraud (i.e. such as changed or unusual payment instructions).

61. As a general rule, equitable negligence principles seek, after the fact, to place responsibility for a loss on the party best able to prevent the harm.

In the result, Lanark was ordered to pay the settlement funds but with no award of pre-judgment interest. Moreover, due to the novelty of the case, no costs award was made.

PIAC requested clarification that this right extends to former customers and purchasers of second-hand devices

The Public Interest Advocacy Centre (PIAC) petitioned the CRTC for clarification of the device unlocking rules that are part of the Wireless Code. The ambiguity PIAC pointed to had to do with prior customers of telcos. In particular, they said:

11. PIAC asked the Commission to clarify Rule F.1.(ii) of the Wireless Code such that all devices purchased prior to 1 December 2017 that are locked to a given WSP’s network should be unlocked upon request and at no cost, regardless of whether the device owner currently has, previously had, or never had an active account with the WSP (hereafter, PIAC’s proposed clarification).

12. In PIAC’s view, the Wireless Code may be ambiguous in terms of who the device unlocking rules are intended to benefit. The Preamble to the Wireless Code states that any ambiguity is to be resolved in favour of customers. PIAC argued that this ambiguity should be resolved to clarify that a person does not need to have an ongoing service contract to have their device unlocked free of charge.

The Code defines customers to be “Individuals or small businesses subscribing to wireless services, including account holders, device users, and authorized users.” The obligation to unlock devices relates to “customers” and the preamble of the Code says that any ambiguity is to be interpreted in favour of the “customer”. 

The CRTC, in Telecom Decision CRTC 2019-169, declined to “clarify” or otherwise change the Code, noting that current customers have this right and former customers have other options available to them. Now that devices must be sold unlocked, the number of current or former customers who seek unlocking of devices is declining significantly.

Broad proposals more of an election platform than an action plan for digital issues

In a speech at the Empire Club on May 21, 2019 (YouTube recording), Innovation Minister Navdeep Bains outlined a “Digital Charter” intended to guide future legislation and policy priorities in the areas of trust, data policy, privacy, misinformation and democracy. The Charter is based on ten principles, some of which have been further elaborated on in documentation linked from that page:

1. Universal Access: All Canadians will have equal opportunity to participate in the digital world and the necessary tools to do so, including access, connectivity, literacy and skills.
2. Safety and Security: Canadians will be able to rely on the integrity, authenticity and security of the services they use and should feel safe online.
3. Control and Consent: Canadians will have control over what data they are sharing, who is using their personal data and for what purposes, and know that their privacy is protected.
4. Transparency, Portability and Interoperability: Canadians will have clear and manageable access to their personal data and should be free to share or transfer it without undue burden.
5. Open and Modern Digital Government: Canadians will be able to access modern digital services from the Government of Canada, which are secure and simple to use.
6. A Level Playing Field: The Government of Canada will ensure fair competition in the online marketplace to facilitate the growth of Canadian businesses and affirm Canada's leadership on digital and data innovation, while protecting Canadian consumers from market abuses.
7. Data and Digital for Good: The Government of Canada will ensure the ethical use of data to create value, promote openness and improve the lives of people—at home and around the world.
8. Strong Democracy: The Government of Canada will defend freedom of expression and protect against online threats and disinformation designed to undermine the integrity of elections and democratic institutions.
9. Free from Hate and Violent Extremism: Canadians can expect that digital platforms will not foster or disseminate hate, violent extremism or criminal content.
10. Strong Enforcement and Real Accountability: There will be clear, meaningful penalties for violations of the laws and regulations that support these principles.

Given that there is a short window before Parliament rises for the summer and with an election expected in October, the Digital Charter has been understood to be as much of an election platform as anything else. And, in many cases, the Digital Charter recites previous statements of principles made by the federal government. 

In particular, the Minister in his speech and in subsequent documentation, has outlined significant changes to Canada’s private sector privacy law, the federal Personal Information Protection and Electronic Documents Act. This is described in “Strengthening Privacy for the Digital Age”, which does not lay out may specifics about privacy law reform, but includes a list of “possible options” and “considerations and questions” for each of them. Most significant, perhaps, is an intention to increase the Privacy Commissioner’s enforcement powers, though this also has few specifics.

Some causes of action viable, but application fails on commonality of claims across the proposed class

The Ontario Superior Court of Justice has refused to certify a proposed class action against a casino that was a victim of a cyberattack that saw personal information of about 11,000 customers posted online. In Kaplan v. Casino Rama, the application mainly failed on the question of “commonality” among the proposed class members, but the judge commented upon other important elements of the case put before him.

The facts are summarized by the judge:

[1] Two and a half years ago, in November 2016, Casino Rama was targeted in a cyber-attack. An anonymous hacker accessed the Casino’s computer system and stole personal information relating to customers, employees and suppliers. When ransom demands proved futile, the hacker posted the stolen data on the internet. Just under 11,000 people had some personal information posted online.

[2] The Casino contacted all appropriate authorities, took steps to close down the two websites that contained the stolen information, notified the thousands of customers, employees and suppliers potentially affected by the security breach and offered free credit monitoring services for one-year to many of them.

[3] Fortunately, some two and half years later, there is no evidence that anyone has experienced fraud or identity theft as a result of the cyber-attack. There is no evidence that anyone has sustained any compensable financial or psychological loss.

The plaintiffs sought certification in negligence, breach of contract, intrusion upon seclusion, breach of confidence and publicity given to private life. The judge concluded that the claims related to breach of confidence and publicity given to private life are “doomed to fail and should be struck.” It must be noted that this test is solely based on what is in the pleadings, rather than anything that is proven in law. 

Interestingly, the judge did find that certain representations in the casino’s privacy policy could create contractual representations, the breach of which could create a contractual claim:

[25] Breach of contract. Nor am I prepared to find that the breach of contract claim as pleaded is doomed to fail. I agree with the defendants that a company’s recitation of a privacy policy whose scope and content is determined solely by federal or provincial privacy law does not generate an enforceable consumer agreement. As recognized in John Doe and Broutzas, courts generally do not enforce agreements that simply repeat without more pre-existing statutory duties.

[26] Here, however, there is more. The plaintiffs allege breach by the defendants of their own privacy policy (not just the one that was statutorily-mandated) and breach of “industry standards” whatever that may mean.

[27] I am therefore inclined to find that the breach of contract claim discloses a viable cause of action under s. 5(1)(a) of the CPA. [footnotes omitted]

For the breach of confidence claim, the Court concluded that a failure to secure the plaintiffs’ confidential and personal information was not a “misuse” of that information, so this claim was doomed to fail. 

While some of the claims may have been viable individually, the Court concluded that there was no commonality that could permit the certification:

[55] Section 5(1)(c) of the CPA requires that the claims or defences of the class members raise common issues. There is no dispute about the applicable law. For an issue to be common, it must be capable of being answered once for all class members. As noted in the leading class actions text:

[I]f an issue can be resolved only by asking it of each class member, it is not a common issue …An issue is not “common” simply because the same question arises in connection with the claim of each class member, if that issue can only be resolved by inquiry into the circumstances of each individual’s claim … The fact of a common cause of action asserted by all class members does not in itself give rise to a common issue since the actual determination of liability for each class member may require individualized assessments.[37]

[56] The problem here, with almost all of the PCIs [proposed common issues], is that there is no basis in fact for either the existence of the PCI or its overall commonality or both. Further, many of the PCI’s, particularly those that ask about duty of care or breach of a standard of care, require so much in the way of individual inquiry that any commonality is overwhelmed by the need for individualized assessments.

With the explosion of privacy class action lawsuits following the Ontario Court of Appeal decision in Jones v Tsige, we are beginning to have a body of caselaw refining how courts will at least address certification questions, particularly where there has been no tangible harm to the individual proposed class members.

Man acquitted on parking ticket because electronic document from online “pay for parking” system not authenticated

In City of St. John’s v. Sean Callahan, the accused had been issued a parking ticket under the relevant city by-law after his mobile home was alleged to have been parked illegally. The motor home had been parked in an area that was clearly indicated by signs to be the site of a “park and pay” mechanism; users were directed to download a parking app onto their phones. The trial judge noted that while the regime expected a certain level of technological sophistication from users, the process to be followed was clearly set out in the by-law and there was a phone number provided on the signage for people needing assistance. The accused testified that he simply did not appreciate the contents of the signage and had parked his vehicle at a parking pole that had no meter, which was permissible under the by-law.

A city Parking Enforcement Officer had accessed the online parking system and obtained a list of vehicles that had paid for parking at the relevant time, and noted that the accused’s vehicle was not among them. At trial he produced a printed copy of this list, which was filed as an exhibit, but he gave no testimony about the online system or how it worked. This proved to be the fatal flaw in the city’s case. Judge Orr began by noting the requirements for prove as regards electronic documents:

[9] In this case non- payment at the time the ticket was issued was admitted by Mr. Callahan. However I note that when a document is produced at trial, in this case the printed parking record, the prerequisite to its admission is authentication. Methods of authentication include viva voce testimony, common law rules and presumptions, or statutory instruments. (The Law of Evidence in Canada, Fourth Edition, p. 1243.) Parking Officer Brown did not testify as to how the electronic system worked how or on what system the records were stored or their accuracy. Besides Officer Brown’s evidence there was no other evidence called as to the systems integrity or how the records were stored, created and retrieved no technical evidence of any kind. There are no legislative provisions in the Bylaw itself or the Highway Traffic Act, The City of St John’s Act, The Provincial Offences Act or The Evidence Act that set out how evidence about the payment process and the retrieval of the record from its electronic data base can be admitted and interpreted.

[10] In Criminal proceedings the admission of digital records is governed by 31.1-31.8 of the Canada Evidence Act. The statutory regime is set up primarily to deal with issues about the integrity of the computer system. It does not deal with the admissibility of the contents of electronic records. Instead it creates two pre-conditions that must be met, the authenticity rules and best evidence rules. Section 31.1provides that a person seeking to admit an electronic document must prove its authenticity by “evidence capable of supporting a finding that the electronic document is that which it purports to be.” Similarly, with respect to the best evidence rule there is a presumption created of system integrity that “there is evidence capable of supporting a finding that the system was operating properly”. This can be easily addressed; R. v. Nichols (2004) O.J. No. 6186 held that viva voce evidence from a system user can be evidence that meets the threshold for both issues and expert evidence was unnecessary. These sections are not part of the evidentiary rules adopted by the Summary Proceedings Act but they do encapsulate in most respects the common law rules that would apply. 

Judge Orr then went on to express the need to balance functional practicality in the authentication of electronic evidence with the need to avoid over-expansive use of judicial notice:

[11] Judicial notice by a court of facts without the requirement of proof is permissible only with respect to facts: 1) so notorious as not to be the subject of dispute among reasonable persons; or 2) capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy and may be noticed by the court without proof of them by any party. (R v Williams1998 CanLII 782 (SCC), [1998] 1 SCR 1128). Courts have identified the issue of judicial notice as having its own particular problem when dealing with information provided by new technologies. Expert evidence has increasingly but unevenly been held to be unnecessary to explain how technology and social media widely used by the general public and government agencies works. In R. v. Hamilton, 2011 ONCA 399 (CanLII), [2011] O.J. No. 2306, technicians were permitted to testify about the location of cell phones without being qualified as “experts”. On the other hand, in R. v. Peliech, [2012] O.J. No. 2467, a Mohan voire dire was held to explain how a widely used software program “Lime Wire” was used. Expert evidence implies that the witness has special knowledge. It seems clear that Courts should accept that technologies broadly used and understood by members of the public do not need expert proof to be accepted. At the same time, judges must exercise caution when taking judicial notice of notorious facts and relying on internet sources of “indisputable” accuracy, such as Google Maps. In R. v. Calvert, [2011] ONCA 379, the trial judge reviewed a Google Map on his own initiative to ascertain the distance between the scene and the police station. This was held to be permissible; however, the closer the judicially noted matter is to the central issue, the stricter the requirements of indisputability and notoriety.

[12] A Court should adopt a functional approach to new technologies and conduct trials effectively and realistically. At the same time when the technology is being relied on to establish an offence even as minor an offence as the breach of a By Law there needs to be a level of confidence in the evidence presented that would justify entering a finding of guilt.

[13] In this case, there is no proof authenticating the parking record. The evidence of the Parking Enforcement Officer did not provide any detail or information to establish the reliability or authentication of the parking record. Consequently given this gap absent the creation of a legislated rule the City’s evidence of non- payment is inadmissible.

The City having failed to prove non-compliance with the by-law, the accused was acquitted.

In our view, this otherwise low-stakes case hits a number of interesting points regarding the admissibility and use of electronic evidence. We are past the point where expert evidence is always required in order to authenticate electronic documents, since it is well within the capacity of lay witnesses to testify as to the practical functionality of various kinds of computer systems. As Justice Paciocco has noted, it is not necessary that witnesses understand the entire inner workings of any kind of machine in order to be able to testify as to how they work (see Justice David M. Paciocco, “Proof and Progress: Coping With the Law of Evidence in a Technological Age” (2013) 11 Canadian Journal of Law & Technology 181). Pragmatism is key. On the other hand, while judicial notice is available in some respects, it should be used cautiously. Equally interesting is Judge Orr’s suggestion that the technical requirements for adducing electronic documents, which are set out in the federal and provincial evidence statutes, can be assimilated into the common law for the purposes of cases brought under the Summary Proceedings Act.

Parents in child support proceeding duel over justiciability of cryptocurrency assets

In M.M.D. v. J.A.H., a child support proceeding, the Applicant mother argued that the Respondent father had more income available to him to support their child than was indicated by the evidence he had led thus far. Specifically, she alleged that he had a large amount of equity in Bitcoin investments (over $9 million), the details of which he was failing to disclose. The judge agreed with the mother that it was clear that the father had more income than he was claiming for particular tax years but refused to impute income to the father from the Bitcoin investments, given the complexity of the asset and lack of evidence. The mother was awarded an interim payment from the father to retain an expert to analyze the Bitcoin assets. Regarding disclosure of evidence of the Bitcoin, the judge noted:

[138] The Respondent has investments in cryptocurrency with a value of $9,502,416 as at February 8, 2019. He asks that only redacted documents related to this investment be produced to the Applicant and filed with the court.

[139] The Respondent states there is a substantial risk that production of information could lead to attacks and give third parties the ability to access and perhaps steal these assets.

[140] I have no expert evidence on this issue. It is clearly a volatile, emerging, intangible source of wealth which the courts will have to grapple with more frequently in future.

[141] For purposes of this case, I find there is no prejudice to the Applicant if she receives the disclosure of the Respondent’s cryptocurrency assets in redacted form. There is a greater risk of prejudice to the Respondent if he is required to produce them in an unredacted form which could compromise the security of this substantial asset.