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Privacy Commissioner issues guidance on their understanding of meaningful consent, which they’ll begin to implement and enforce in 2019

The Office of the Privacy Commissioner of Canada (the “OPC”) has released “Guidelines for obtaining meaningful consent,” which it says it will begin to enforce as of January 1, 2019. This follows a round of consultations carried out by the OPC beginning in 2016.

The Personal Information Protection and Electronic Documents Act (“PIPEDA”) is principles-based and has a lot of flexibly in its application. Consent can be implied or express, depending on a range of factors. However, recent amendments to the Act have added to the requirements for obtaining consent and what is sufficient:

6.1 For the purposes of clause 4.3 of Schedule 1, the consent of an individual is only valid if it is reasonable to expect that an individual to whom the organization’s activities are directed would understand the nature, purpose and consequences of the collection, use or disclosure of the personal information to which they are consenting.

The OPC Guidelines focus on 7 principles:

1. Emphasize Key Elements: what personal information is being collected, with which parties personal information is being shared, for what purposes personal information is collected, used or disclosed, and the risk of harm or other consequences.
2. Allow individuals to control the level of detail they get and when (e.g. layering documents, being able to return to the policy)
3. Provide individuals with clear options to say ‘yes’ or ‘no’
4. Be innovative and creative: consider using “just in time” notices (offering an explanation and asking for consent at the time an action is to be taken, rather than as a blanket upon first engagement with the service), interactive tools, customized mobile interfaces
5. Consider the consumer’s perspective
6. Make consent a dynamic and ongoing process (e.g. privacy check-ups)
7. Be accountable – stand ready to demonstrate compliance

The OPC guidelines also say that there children are involved organizations must take precautions to ensure that minors providing consent have the capacity to do so, and that individuals lacking that capacity are supported by the consent of a parent or guardian. The OPC is of the view that children under 13 lack the capacity to consent.

Opposing counsel objected as cases are available for free online; Judge noted the case required only “basic legal knowledge”

In Cass v 1410088 Ontario Inc., Justice Whitten of the Ontario Superior Court, on a costs motion, disallowed a $900.00 charge for “legal research”. The plaintiff disputed a number of elements of the cost award, including the fee for legal research “for case precedents which are available for free through CanLII or publically accessible websites?”

The Court agreed, noting that the case was not particularly complicated and that there would be a very limited need for research in the first place:

[32] $900.00 for legal research is problematic. One assumes that counsel graduated with the basic legal knowledge we all possess. This matter was unlikely his first blush with the world of “occupier’s liability”, and specifically the liability of landlords. Counsel no doubt was familiar with the focus on the degree or control and access exercised by the landlord on the subject area. So given all the base experience and knowledge, the need for “research” by some anonymous identity is questionable.

What might have been said to be “research” was simply preparation of the factum, and that time would have been reduced if the lawyer had used “artificial intelligence sources.”

[34] All in all, whatever this “research” was would be well within the preparation for the motion. There was no need for outsider or third party research. If artificial intelligence sources were employed, no doubt counsel’s preparation time would have been significantly reduced

Driver acquittal for provincial distracted driving offence overturned on appeal

In R. v. Ahmed Justice John Henderson of the Alberta Court of Queen’s Bench sat as a court of appeal over a decision of the Traffic Commissioner, who had acquitted the accused of a distracted driving offence under the Alberta Traffic Safety Act. The accused had been observed steering his moving vehicle with his left hand while holding a smart phone in his right, and intermittently looking at it. The police charged him under s. 115.1(1)(b) of the Act, which prohibits a motorist from driving while at the same time holding, viewing, or manipulating “a hand-held electronic device or a wireless electronic device.” However, the Traffic Commissioner held that this conduct would have amounted to an offence if the accused had been charged under s. 115.1(1)(a), which prohibits driving while holding or manipulating a “cellular telephone, radio communication device or other communication device ....” In the Commissioner’s view, a smart phone could properly be included under the definition of “hand-held electronic device or a wireless electronic device” since smart phones were separately provided for under s. 115.1(1)(a), and thus acquitted him. The Crown appealed.

In a decision resting entirely on statutory interpretation (and as readers of this newsletter will recall, most cases on distracted driving offences do so), Justice Henderson overturned the ruling of the Traffic Commissioner and entered a conviction. Noting that the two sections in question were part of a set of distracted driving offences that had been inserted into the Act, he began by noting that in the grammatical and ordinary sense of the words, smart phones fell under both sections:


[18] Cell phones and smart phones are now very widely used throughout Canada and the developed world. I take judicial notice of the fact that these devices are intended to be hand- held. I take judicial notice that the devices are powered by battery and are thus electronic. I take judicial notice that the devices operate wirelessly.

[19] There can be no reasonable doubt that a cell phone is both a hand-held electronic device and a wireless electronic device.

[20] There can be no reasonable doubt that a smart phone is both a hand-held electronic device and a wireless electronic device.

Next Justice Henderson examined the context and scheme of the legislation. The Traffic Commissioner had been convinced that because ss. 115.1(1)(a) and (b) were separated by the word “or”, two separate offences were in fact created. However, use of the disjunctive “or” did not necessarily separate the two and in context did not indicate an intention to except smart phones from being treated as wireless/handheld devices. There was, in fact, a fair amount of overlap between the various provisions in the Act which dealt with distracted driving, but this did not create an interpretive issue:

[30] The fact that there is overlap among the various “distracted driving” provisions is not of consequence when interpreting the provision of a statute. It is presumed that the provisions of legislation are meant to work together logically as parts of a functioning whole. The parts are presumed to form a rational, internally consistent framework; because the framework has purpose, the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal: Sullivan on the Construction of Statutes, 6^th ed (Markham: LexisNexis Canada, 2014), at para 11; R v LTH, 2008 SCC 49 (CanLII) at para 47.

The court next turned to the argument that certain defences under the Act were available for the (a) offence (cellular phones) but not the (b) offence (wireless devices). The Commissioner had reasoned that smart phones must therefore be excluded from the scope of the (b) offence. Justice Henderson noted that the expressio unius principle of statutory interpretation supported this conclusion, but felt that in the overall context it could not bear the weight of the obvious legislative intent behind the distracted driving provisions:

[39] The concerns raised by the learned Traffic Commissioner are legitimate. The Legislature cannot have intended that the defences for legitimate cell phone use, as provided by s 115.1(3), should be dependent upon which of several distracted driving provisions the charge is advanced under. The charging section is often made at the discretion of a police officer without any regard to the consequences which may flow from it. For this reason, the decision on the charging section may be completely arbitrary. The Legislature cannot have intended that the legitimacy of defences would be based upon arbitrary decisions of a police officer.

[40] However, while the concerns are legitimate, the solution is more complex. One potential solution is that s 115.1(1)(b) should be interpreted as excluding cell phones and that any cell phone charges must be advanced under s 115.1(1)(a). That solution has its own problems because it requires that the Court infer words into the subsection which are simply not there. This solution would also not address potential cell phone charges under s 115.2 or other subsections.

[41] Ultimately the concerns with the s 115.1(3) defences arise because of inelegant drafting of the legislative provisions. The real solution is for the Legislature to respond with amendments to address the concerns.

Finally Justice Henderson explored the Hansard records surrounding the introduction of the distracted driving provisions and held that they were intended to be comprehensive, practical and enforceable. He concluded:

[49] The terms “handheld electronic device” and “wireless electronic device” are broad and were intended to be expansive. If the Legislature had intended to exclude cell phones or smart phones from the scope of s 115.1(1)(b), then it could have employed clear wording to achieve this result. It did not do so.

[50] I conclude that the intention of the legislature and the purpose of the legislation would be defeated if cell phones or smart phones were excluded from the definition of the terms “handheld electronic device” or “wireless electronic device” in s 115.1(1)(b).

A Facebook page, operated by a public official, can be a “public forum” for First Amendment purposes

Whether politicians can block citizens on social media has been in the news in Canada, but not yet in the courts. Not surprisingly, it’s a different story in the US where the question has found itself before the United States Court of Appeal for the Fourth Circuit.

In Davison v Randall, Brian Davison alleged that being blocked from a politician’s Facebook page infringed his First Amendment Rights. The defendant, Phyllis Randall, is the chair of the Loudoun County Board of Supervisors. The day before she was sworn in, she created a Facebook page entitled “Chair Phyllis J. Randall”. Randall also had a personal profile on Facebook and a page for her campaign. Her campaign page was designated as a “politician” page, and the page associated with her role as Chair had a “governmental official” label. Her personal profile had no label. Randall and her Chief of Staff generally used the Chair page to notify the public about upcoming board meetings, hosted discussions about significant public safety issues, and invited the public to participate in consultations. She also used the page to update her followers on her travels and meetings, and various other updates. The public, including Davison, would ‘like’ and comment on these posts offering commentary and criticism. Randall would occasionally reply to these comments.

Randall blocked Davison from the Chair page after Davison submitted a question implying that some School Board members had acted unethically in approving financial transactions. Davison subsequently used a page he managed to comment on a post made by Randall. Randall then deleted the whole original post, which included Davison’s comment. Randall also banned Davison’s page from the Chair page. The next morning, less than 24 hours later, Randall reconsidered and unbanned Davison’s page.

Davison sought relief against the Board and Randall in the District Court. The District Court released the Board from the suit, but concluded that the defendant Randall, as chair of the Loudoun County Board of Supervisors, violated the First Amendment rights of one of her constituents, Brian Davison, when she banned Davison from the "Chair Phyllis J. Randall" Facebook page she administered.

While a number of interesting issues were raised on appeal, the most interesting one was whether the Facebook page constituted a public forum so that it would be a forum for constitutionally protected speech that the government cannot interfere with. The appeal court noted:

Although neither the Supreme Court nor any Circuit has squarely addressed whether, and in what circumstances, a governmental social media page—like the Chair's Facebook Page—constitutes a public forum, aspects of the Chair's Facebook Page bear the hallmarks of a public forum. Randall "intentionally open[ed the public comment section of the Chair's Facebook Page] for public discourse," inviting "ANY Loudoun citizen" to make posts to the comments section of the Chair's Facebook Page—the interactive component of the page—"on ANY issues, request, criticism, complement or just your thoughts." Randall placed no restrictions on the public's access to the page or use of the interactive component of the Chair's Facebook Page. And, in accordance with Randall's invitation, the public made numerous posts on matters of public concern.

The Chair's Facebook Page also is "compatib[le] with expressive activity." "Congress [has] recognized the internet and interactive computer services as offering 'a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.'" And the Supreme Court recently analogized social media sites, like the Chair's Facebook Page, to "traditional" public forums, characterizing the internet as "the most important place[] (in a spacial sense) for the exchange of views." An "exchange of views" is precisely what Randall sought—and what in fact transpired—when she expressly invited "ANY Loudoun citizen" to visit the page and comment "on ANY issues," and received numerous such posts and comments. J.A. 455. [citations omitted]

Randall argued that the Facebook website was private property and could not be a public forum. The Court disagreed:

Significantly, even assuming the relevant aspects of the Chair's Facebook Page constitute private property—which, again, is not entirely clear from the record before us—Randall, acting under color of state law, retained and exercised significant control over the page. She created the Chair's Facebook Page. She designated the page as belonging to a "governmental official." She clothed the page in the trappings of her public office. She chose to list her official contact information on the page. And she curated the links in the left column of the page and the lists of Facebook Pages or profiles "liked" by the Chair's Facebook Page in the right column.

Of particular importance, Randall had complete control over the aspect of the Chair's Facebook Page giving rise to Davison's challenge because, as administrator of the page, Randall had authority to ban Facebook profiles or Pages from using the Chair's Facebook Page—and, therefore, the interactive component of the page—authority she exercised in banning Davison's Virginia SGP Page. Cf. Knight, 302 F. Supp. 3d at 566¬67 (holding that the interactive component of the President's Twitter account constituted public forum because the President and his advisors "exercise control over various aspects of the . . . account," including the power to block other users from accessing the account).

The Court of Appeal concluded that the Facebook page in question was a public forum for First Amendment analysis purposes and upheld the lower court’s determination that blocking Davison from participating infringed his First Amendment Rights.

Mandatory licence suspensions added to increased fines

Ontario has stiffened the penalties for its distracted driving laws. Under the Highway Traffic Actit was already an offence for any person to drive a motor vehicle “while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.” In the Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, which came into force on January 1 2019, the penalties have been significantly increased.

The offence now carries a fine of between $500 and $1000 for a first offences, with the maximum increasing to $2000 for a second offence, and $3000 for subsequent offences. In addition, conviction now carries a mandatory licence suspension: three days for a first offences, seven days for a second offences, and 30 days for any subsequent offences.

U.S. Court refuses to dismiss copyright infringement claim over Willie Nelson image

In Philpot v. ALTERNET MEDIA, INC., the California District Court heard a motion to dismiss claims against Alternet, an “alternative news website” with a companion Facebook page, by Philpot, a photographer whose work focuses on US concert events. Philpot had taken a photo of singer Willie Nelson, for which he registered a copyright in 2012, and uploaded it to the Wikimedia website. In June 2015 Alternet posted on its Facebook page a meme that superimposed a quotation from Nelson over Philpot’s photo, which received 14,000 likes, 33,000 shares and 306 comments. Alternet did not seek or receive Philpot’s permission to use the photo, and ignored his requests to cease and desist. Philpot brought claims against Alternet framed in infringement of copyright and violation of the US Digital Millennium Copyright Act (DCMA). Alternet moved to dismiss the claims.

Alternet argued that the “fair use” defence barred Philpot’s claim. The court described that defence:

When determining whether a use constitutes a "fair use," courts consider several factors, including (1) the purpose and character of the use, including whether the use is commercial or for non-profit educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion of the work used in relation to the work as a whole, and (4) the effect of the use on the potential market for or value of the work. Id.; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 576-77 (1994).

The main issue for the court was the one raised by the first factor: whether and to what extent the photo as it had been used by Alternet was “transformative,” i.e. “whether the new work merely `supersedes the objects' of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” The court reasoned as follows:

On this motion to dismiss, there are not enough facts alleged in the Complaint to allow the Court to determine whether or not Alternet's use of the Willie Nelson photo was transformative. First of all, there are almost no allegations concerning Philpot's purpose in taking the photo. Second, it is not clear as a matter of law what Alternet's purpose was in reproducing the photo. Philpot does allege that Alternet is an alternative news website whose purpose is "to influence its readers' political leanings, and consists of opinion pieces, purportedly newsworthy information, and sensationalized current events." Compl. ¶ 7. However, taken at face value, the Court reads this to be merely a description of Alternet's operational model rather than an allegation of Alternet's purpose in using the photo.

Attached to the Complaint as an exhibit is a snapshot of the Facebook post by Alternet featuring an image of Willie Nelson with the quote: "Rednecks, hippies, misfits—we're all the same. Gay or straight? So what? It doesn't matter to me. We have to be concerned about other people, regardless. I don't like seeing anybody treated unfairly. It sticks in my craw. I hold on to the values from my childhood." Compl. Ex. E, ECF No. 1-5 at 2. Alternet argues that by adding the quote, it used the photograph to provide political commentary and that this use of the photograph supersedes Philpot's original purpose. Mot. to Dismiss, ECF No. 19 at 12.

While that is possible, at this stage of the pleadings, Philpot credibly argues that the photograph, as used by Alternet, was merely for the purpose of identifying who the quote came from, thus leaving the purpose unchanged: to identify Willie Nelson. In order to make a determination as to Philpot's argument, the Court would need additional facts. For example, whether or not Alternet's purpose in using the photograph was to identify Willie Nelson's connection to the quote or to transform it into a political poster. The latter is a factual question more appropriate for the summary judgment phase. As evident based on the above analysis, the facts, as alleged in the complaint, are simply insufficient to conduct a thorough analysis of transformative use at this time. Accordingly, this factor weighs in favor of denying dismissal.

The questions raised by the other three criteria, similarly, could not be answered on the pleadings and required some form of evidence to be led. The court therefore refused to dismiss the copyright infringement claim. However, it dismissed the DMCA claim because the plaintiff was required to plead facts that could lead to the conclusion that Alternet possessed the required mental state to make out a breach of the act, “the mental state of knowing, or having reasonable grounds to know, that his actions will induce, enable, facilitate, or conceal infringement to be liable for removing copyright management information (CMI) metadata and distributing images knowing that CMI was removed.” However, the plaintiff had simply provided conclusions on this point without pleading facts, leading to the claim being struck.

Nova Scotia court decides deceased lawyer’s estate should fund discovery referee

In Medjuck v. Medjuck, Justice Peter Rosinski of the Nova Scotia Supreme Court dealt with a discovery motion that arose out of civil litigation among members of a family, in which one brother (Harold) was suing two of his brothers, one of whom (Franklyn) was a deceased lawyer. Lawyer G, who was representing the living defendant brother and the Executrix of Franklyn’s estate as to Franklyn’s individual capacity, had come into possession of two computers which were reasonably thought to have been used by Franklyn for his legal work. He had put them aside and not reviewed their contents because he suspected there was privileged information on them. The plaintiff was of the view that the contents of the two computers needed to be reviewed because it was quite likely that documents and other information potentially relevant to the civil claim was on the hard drives. This was uncontroversial since, as Justice Rosinski noted, the Nova Scotia Civil Procedure Rulescompelled the disclosure of relevant and non-privileged documents, and Rule 16 in particular mandated the disclosure of electronic data. Previous case law had established that disclosure of a hard drive for forensic analysis fell squarely into this discovery regime. It was also uncontroversial that, because it was likely that privileged information was on the computers, an independent referee should be appointed to review the computers and screen them for anything privileged. In fact, the parties agreed on the individual who should be appointed referee.

The contentious issue on the motion was determining who was to pay for the services of the referee. Lawyer G, as well as lawyer R who was representing the estate as regarded Franklyn’s work as a lawyer, argued that the Estate should not have to pay any of the cost for the referee, and that the plaintiff brother should have to pay at least 50% of the cost. The need to appoint the referee, it was argued, was the responsibility of the plaintiff, who created the uncomfortable situation of potentially privileged materials having to be reviewed and the deceased’s personal representative being unable to do it; moreover, were Franklyn still alive, he would not be able to do this himself because he would be a party and thus in a conflict of interest. However, Justice Rosinski rejected these arguments, noting that the necessity for protecting the privilege of Franklyn’s former clients via his computer had been created by Franklyn himself, while he was still alive, and it was up to the estate to address it now.

In the end, while there was little in the way of relevant precedent, a solution had to be crafted to deal with the privileged material, since it was reasonable for all parties to think that there was material relevant to their cases on the hard drives. The equities of the situation led the court to the conclusion that the Estate should bear the cost of the referee, 50% being allocated to each of the personal aspect and business aspect of the estate.

Leave Not Granted in Application against Trustee in Bankruptcy on Allegation of Breach of Privacy

The value of evidence arising from blog posts and YouTube videos was considered in Re Netlink Computer Inc. Netlink had been a company selling computers and related equipment until it went bankrupt in 2017. The Trustee in Bankruptcy had, in the course of the bankruptcy proceedings, sold Netlink’s assets, but this had given rise to some online controversy. In particular, a blog post had appeared on a site called “privacyflyby.com”, written by Travis Doering. The blog post alleged data breaches in the sale, by the Trustee, of equipment owned by Netlink. That led to a former customer of Netlink’s, Kipling Warner, to seek leave to sue the Trustee, and indeed to commence a class action. Warner alleged that the Trustee was negligent in selling Netlink’s assets, breached its service contract with Warner, breached the Personal Information Privacy Act, SBC 2003, c 63 [PIPA], the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 [PIPEDA], and the Privacy Act, RSBC 1996, c 373, and that the negligence of the trustee is in respect of a duty of care was owed to a class, for which Warner sought certification.

Warner claimed, on behalf of the class:

1. Damage to credit reputation;
2. Mental distress;
3. Costs incurred in preventing identity theft;
4. Costs incurred in paying for credit monitoring services;
5. Out of pocket expenses;
6. Wasted time, inconvenience, frustration, and anxiety associated with taking precautionary steps to reduce the likelihood of identity theft or improper use of credit information, and to address the credit flags placed on their credit files; and
7. Time lost engaging in precautionary communications with third parties such as credit card companies, credit agencies, banks, and other parties to inform them of the potential that the Class member’s Private Information may be misappropriated and to resolve delays caused by flags placed on Class members’ credit files.

The issue before the Master was whether Warner had established a prima facie case against the Trustee. It did not, because of the frailties in the evidence presented.

In Warner’s own affidavit, he relied on a number of other sources, including a blog post and a YouTube video posted by two different people who said they had attended the sale. The Master pointed out that there was no explanation as to why those two people had not been asked to provide their own affidavits, and that the “double hearsay” of Warner’s report about what they had posted online was not admissible.

Further, although Warner swore in his own affidavit that he believed Doering’s statements in his privacyflyby blog to be a faithful and accurate account, he possessed no personal knowledge of any of the facts, and integrated elements of his own belief (that were not included in the Doering blog post) that amounted only to conjecture.

In addition the Master found unpersuasive the affidavit provided by Doering himself:

[49] Mr. Doering has a commercial interest in what he alleges to be the exposure of the Netlink data breach. In addition, Mr. Doering has limited direct knowledge of the facts forming the basis of the proposed action. The Doering Affidavit was not drafted for the purpose of being tendered as evidence in a court proceeding. Rather, it is a blog post with a jurat attached to it.

Ultimately the Master concluded that the low evidentiary threshold had not been met and denied leave.

But judge crossed the line in assuming only one way to fabricate text message exchange

In R v Lambert, Justice Molloy of the Ontario Superior Court of Justice heard an appeal of a conviction in which a substantial part of the case was determined by judicial notice of how text messaging works.

The accused, Lambert was convicted of uttering threats, criminal harassment and breach of probation for sending text messages to his ex-girlfriend over a 21 day period and going to her place of work. The actual text messages or the phone (or any detailed analysis of either) were not available at the trial. The only evidence the testimony of the ex-girlfriend, NB, and photographs the police had made of her phone showing the text messages in question.

The trial turned on the credibility of the complainant and the identity of the sender of the text messages. If the accused had actually sent the messages, they would be evidence and provide substantial corroboration of the threats and harassment. However, there was nothing independent linking the messages to the accused. By the time NB had called the police, she had deleted three threatening voicemails, and by the time of the trial she no longer had the phone. The messages not been extracted from the phone and the police never examined it beyond taking photos of the screen.

From the appeal decision:

[6] The text messages were exhibits at trial. The messages sent by “Barrii” contained repeated and persistent demands for money allegedly given to N.B. and numerous threats against her. The threats escalated in violence and frequency from May 1 through to May 12, 2016, and included threats to attend at the workplace of N.B.’s daughter, threats to harm N.B., and threats to kill N.B. One such message could reasonably be construed as a threatened murder/suicide. On May 12, in addition to threatening to kill N.B., the sender of these messages said he had a gun. N.B. testified that she decided to go to the police when she received that message.

The defence suggested to NB that she had created the messages herself:

[10] It was suggested to N.B. on cross-examination that she had fabricated the text messages sent to her. Specifically, it was suggested that she: (1) obtained a second phone, which had the number 647-550-7359; (2) put that number in the contacts in her usual phone as “Barrii;” and, (3) fabricated the exchange of messages by sending messages to herself, purportedly from “Barrii,” and then sending replies from her regular phone. N.B. denied that suggestion, maintaining that all of the messages from “Barrii” were, in fact, sent by Mr. Lambert.

The trial judge determined that NB had not created the messages: they appeared natural, they included normal references to other people and events and did not paint the complainant in a good light. If she were to go to the effort to manufacture the text messages, “she would have painted herself in a better light and portrayed herself as being frightened, rather than defiant as she appeared in many of her responses.”

The trial judge also took judicial notice of how text messaging works in order to find that NB likely had not created the messages herself:

[15] The trial judge then rejected the defence argument that the Crown’s case was lacking because no expert was called to explain how text messaging works, stating:

In this day and age, text messaging is ubiquitous and is a method of communication widely used and understood by everyone who uses a cell phone. I can take judicial notice of how text messaging works, and I do not need an expert to tell me that text messages are sent from one cell phone to another, that the date and the time the message is sent is captured on the receiver’s cell phone as is the sender’s phone number, as is shown in Exhibit 2. It is not unlike telling the time. You do not need to tell how a clock works to tell what time it is.

[16] Finally, the trial judge accepted N.B.’s evidence that she was frightened by the messages but did not report the matter to the police because she was trying to defuse the situation. The trial judge also accepted N.B.’s evidence that she believed she had no choice but to go to the police once Mr. Lambert told her he had a gun. Likewise, the trial judge accepted N.B.’s testimony that Mr. Lambert came to her house and to her place of employment and left threatening voice messages. She stated, “I base this conclusion on [N.B.]’s evidence as corroborated by the text messages, which I am satisfied were sent by Mr. Lambert.”

One of the accused’s grounds of appeal was that the trial judge had improperly taken judicial notice of how text messaging works. To address this question, the judge on appeal referred to R v Find from the Supreme Court of Canada:

In this case, the appellant relies heavily on proof by judicial notice. Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. [citations omitted]

The judge on appeal found that the trial judge stayed within the permissible bounds of judicial notice in most of her analysis, but veered over the line in part by assuming – and concluding -- there was only one way that a fabrication could be carried out:

[29] …. The trial judge held:

In my view, it would take an extraordinary effort on [N.B.]’s part to fabricate these text messages. She would need to obtain a second phone with the number 647-550-7359 assigned to it, create a contact with the name Barrii, and with that phone number in her contact list, and then proceed over 21 days to fabricate close to 2,000 lines of texts between her phone and the other phone. [Emphasis added.][16]

[30] Implicit in this finding is the assumption that the only way to fabricate a text message is by this method. There was no evidence at trial as to how text messages might be fabricated and made to appear to have come from another phone. There was no evidence that it would be impossible to fabricate date and time stamps of messages received and sent on one’s own phone. The trial judge concluded, however, that to have fabricated these messages the complainant would have had to send them at the dates and times reflected on her phone. Based on the normal way cell phones work, I accept that the trial judge could have taken judicial notice of the fact that this was one way to fabricate such messages. However, a determination that there was no other possible way to do so is a finding of fact that goes beyond what is notorious and indisputable. Such a determination could only be based on evidence from somebody with expertise in how this technology works. It cannot be the subject of judicial notice. The trial judge erred in law by making this finding in the absence of any evidence.

However, in the result, the judge concluded that it was an error that did not affect the final result.

Consent of one spouse cannot authorise the seizure of a computer containing private data about the other.

The Supreme Court of Canada has concluded that one spouse has a sufficient reasonable expectation of privacy in a jointly-used home computer that the other spouse cannot consent even to the seizure of that computer, with its decision in . This conclusion overturns the decision of the Ontario Court of Appeal, which had held that the spouse could consent on her own behalf to the taking of the computer, which would have the effect of the police lawfully taking it: see the discussion in the CanTech newsletter of May 24, 2017.

Reeves shared a home with his common law spouse. They were separated in 2011 and Reeves was subject to a no-contact order after being charged with domestic assault against his spouse. For Reeves to visit the home, he needed to obtain his spouse’s prior, written and revocable consent, which she did in fact revoke in 2012. At that time, his spouse called Reeves’ probation officer to withdraw her consent, and also reported that she had earlier found what she believed was child pornography on the shared home computer (used by both spouses) in 2011. After she reported what she had found, a police officer went to the home without a warrant, and he later testified that he did not believe he had grounds at that time to obtain a warrant. The spouse allowed the officer to enter the house and signed a consent form allowing the officer to take the computer from a shared space in the home. At the time that the computer was taken, Reeves was in police custody on unrelated charges. The police detained the computer for four months during which they neither searched the computer nor reported it to a justice as required by s 489.1 of the Code. In February 2013 the police obtained a warrant and searched the computer finding images and videos that constituted child pornography, at which point Reeves was arrested and charged.

The trial judge had found a number of Charter violations: the entry into the home, the seizure of the computer, the eventual search of it under the warrant (which was found to have been improperly issued) and the failure to file a report with a justice about the seizure of the computer. Because of this collection of violations, the trial judge had excluded the evidence. The Ontario Court of Appeal agreed that there were some Charter violations in the case, but disagreed that either the entry or the seizure violated the accused’s Charter rights, and as a result did not exclude the evidence. Those two issues went to the Supreme Court, which rendered a majority decision only on the second: eight of the nine members concluded that the seizure of the computer was, in fact, a violation of the accused’s section 8 right to be free from unreasonable search and seizure, and that that was sufficient to conclude that the evidence should be excluded and therefore to restore the decision at trial. (Seven of eight judges left the question of whether one person could consent to the entry by the police into areas commonly-held with other people to be discussed in a case which turned on that issue. Justice Moldaver, writing only for himself, concurred with the majority reasoning on the seizure issue while also offered a tentative method of analysis of the entry issue, but left a final determination of the point for another day. Justice Côté, writing only for herself, concluded that the issue of the entry into the premises should be addressed, and was not unlawful, and indeed that the seizure was lawful. However, she also concurred in the majority result that the evidence should be excluded.)

The key to the majority’s reasoning rested on their discussion of reasonable expectation of privacy in the context of a computer. In Reeves, the Court continues its sophisticated “large and liberal” understanding of privacy in the technology context. That issue of reasonable expectation of privacy, which the Court again stresses must be evaluated on a normative basis, rests on consideration of four factors: (1) the subject matter of the alleged seizure; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable. As has increasingly become the case recently (as for example in R v Marakah, discussed in the CanTech newsletter of December 21, 2017) exactly how the first consideration, the subject matter, is defined has a major impact on the rest of the analysis.

The Supreme Court’s point was that the subject matter of this seizure was not merely the computer as a physical item, but “ultimately the data it contained about Reeves’ usage, including the files he accessed, saved and deleted” (para 30). They noted that “When police seize a computer, they not only deprive individuals of control over intimate data in which they have a reasonable expectation of privacy, they also ensure that such data remains preservedand thus subject to potential future state inspection” (para 30). They carried on to say

[31] Thus, I disagree with the Court of Appeal’s assertion that “[s]eizing the computer did not interfere with Reeves’ heightened expectation of privacy in its informational content; it did not imperil any of his legitimate interests, beyond mere property rights” (para. 61). Clearly, the police were not after the physical device (to collect fingerprints on it, for example), but rather sought to preserve and permit access to the data it contained. To focus exclusively on the property rights at issue (that is, on Reeves’ interest in the computer) neglects the important privacy rights in the data that are also engaged by the seizure.

Once the subject matter was defined in that way it was easy for the Court to conclude that the accused had a subjective direct interest in that data, which settled the second and third considerations, and left only whether the privacy interest was objectively reasonable. The Court answered that question affirmatively, as it has on many other occasions relating to electronic data:

[34] Personal computers contain highly private information. Indeed, “[c]omputers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities” (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 105; see also Vu, at paras. 40-41; Cole, at paras. 3 and 47-48). Computers act as portals — providing access to information stored in many different locations (Vu, at para. 44; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 131-32). They “contain information that is automatically generated, often unbeknownst to the user” (Vu, at para. 42). They retain information that the user may think has been deleted (Vu, at para. 43). By seizing the computer, the police deprived Reeves of control over this highly private information, including the opportunity to delete it. They also obtained the means through which to access this information. Indeed, these are the reasons why the police seized the computer.

The Court acknowledged that control is a relevant consideration, and that the shared control over this computer meant that Reeves privacy interest was diminished, but nonetheless it was not extinguished.

Once they had reached that conclusion, it was relatively easy for the Court, relying on previous case law, to conclude that the seizure based only on the consent of Reeves’ spouse was a section 8 violation. To say that Reeves had to take the risk that his spouse, who also had a privacy interest in the computer, might give it to the police would be to substitute a risk analysis for the correct normative approach: as in R v Duarte or Marakah, the existence of such a risk does not mean the accused does not have a privacy interest to be protected. They noted in particular that to find otherwise might “disproportionately impact the privacy rights of low income individuals, who may be more likely to share a home computer” (para 44). Similarly, it is well-established that one person cannot waive another person’s Charter rights, and so to allow the spouse’s consent here to mean that Reeves’ rights were not infringed would be inconsistent with R v Cole.

The result was that the seizure of Reeves’ computer was an interference with his reasonable expectation of privacy for which no lawful authority existed, and therefore was a section 8 breach. More generally, the Court added what can be seen as an addendum to the longstanding general rule that a warrantless search is prima facie unreasonable:

[56] …because someone is always likely to have a reasonable expectation of privacy in a personal computer, the taking of a personal computer without a warrant and without valid consent will constitute a presumptively unreasonable seizure.