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Court rulings emphasize practicality, ubiquity of email communication

While we are well past the days where expert witnesses were required when parties sought to lead email in evidence, this very universal (some would even say antiquated) mode of communication is still the subject of contention in various kinds of litigation. Recent case law suggests that Canadian courts are keen on the practical utility of email, particularly in situations where the underlying dispute is based around failure on the part of one party to communicate in a reasonable or timely manner.

In The Owners, Strata Plan NW 2089 v. Ruby, Registrar Neilsen of the British Columbia Supreme Court presided over a petition by a New Westminster strata (condominium) corporation to: enforce a lien that had been entered against the unit owned by Ruby, in the amount of $4,532.33; or enforce sale of the unit if the lien was not discharged. There was an underlying dispute regarding payment for upgrades to elevators in the building, in particular whether commercial tenants would pay and in what amount. Ruby was employed as a tour manager and was most often away at least 6 months of the year, sometimes consecutively, and sometimes longer. He had regularly used email in order to communicate with the management of the corporation. He was aware of the dispute regarding the elevator upgrades but at all relevant times had the impression that no decisions had been made.

In September and November of 2017 the corporation had sent letters to Ruby notifying him of a special levy on owners to pay for the elevator upgrades. Ruby was out of town and did not receive the letters. In December 2017 the corporation sent Ruby an email referring to the letters and informing him that they were commencing “forced sale proceedings.” Ruby responded immediately and offered to pay the special levy, but over the course of communications (this time by email) it was made clear that the court proceedings would still be brought unless he also paid “special legal costs” in amounts up to $2,700. He refused to pay these and the petition went ahead.

Ruby provided substantial evidence that he had corresponded regularly with the corporation via email for well over a decade preceding this particular matter, and that in particular he had dealt with disputes regarding special levies by email on previous occasions. As the Registrar noted, the Strata Property Act provided for various means of communication between corporations and owners, including email, and in this case the corporation had not responded to Ruby’s evidence regarding past email communication. Regardless of the corporation’s policy preferring written communication, it was clear that there was a history of regular communication regarding strata matters by email, and there was no explanation from the corporation as to why they had “handed the matter over to their lawyers” (who, ironically enough, dealt with Ruby exclusively by email). The legal costs were held to be “unreasonable in their entirety” by the Registrar, who ruled:

In my view, this entire proceeding could have been avoided had the petitioner sent a single email to the respondent, demanding payment of the special levy, as it had in the past, before handing the matter over to their lawyers and incurring legal costs…Upon receipt of the first email demanding payment of the special levy the respondent promptly acknowledged his liability and agreed to pay. He did not agree to pay legal fees which he felt were needlessly incurred. Regretfully, he was not permitted to pay the special levy unless it was accompanied by full payment of the legal fees claimed. The escalating claim for legal fees became a club to cow the respondent into submission.

The claim for costs was disallowed and Ruby received his costs for the hearing.

Unreasonable email use against the background of a petty dispute also featured in Hemming v JAZZ.FM 91 Inc., in which a dissident group among the members of a small non-profit organization appears to have been seeking a meeting of the entire membership. It requested contact information for the members, but the organization chose to withhold email addresses from disclosure, even though it was “the primary means of notice used to contact the overwhelming number of members.” Justice Dunphy of the Ontario Superior Court ordered that the list of email addresses be produced, chiding the organization for a practice “clearly adopted to frustrate the applicants” and which placed “needless/pointless obstacles in favour [sic] of communication.” Having cited the needlessly adversarial nature of the dispute (the judge commented in oral remarks that there were three lawyers on each side of the matter), partial indemnity costs in the amount of $20,000 were awarded against the non-profit. [Editors’ note: we can’t believe it, either]

Students reasonably expecting not to be secretly videotaped in school for sexual purpose

The Supreme Court of Canada has elaborated on the voyeurism offence in section 162(1) of the Criminal Code with its decision in R v Jarvis. That provision makes it an offence to surreptitiously observe or record a person who is in circumstances that give rise to a reasonable expectation of privacy, including that the recording was done for a sexual purpose. In Jarvis itself, the accused was a teacher in a high school who had used a camera hidden in a pen to record video of female students, generally the breasts of students wearing tight fitting or low-cut clothing. The videos were recorded in the hallways, classrooms, cafeteria and grounds of the school. By the time the matter reached the Supreme Court, it was settled that the videos had been recorded surreptitiously and for a sexual purpose, and so the only issue was whether the students could be said to have a “reasonable expectation of privacy”. The Court concluded that they did, and therefore that the accused was guilty, and in the course of deciding that made important observations about the relationship between technology and privacy.

The Court’s conclusion rests on statutory interpretation of the phrase “circumstances that give rise to a reasonable expectation of privacy” in section 162(1), which the majority concluded meant “circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred”. That determination is to be made based on a number of factors, including the location, whether the conduct is observation or recording, whether the subject is aware of or has consented to potential observation or recording, the manner in which it was done, the subject matter, any rules or regulations governing the situation, the relationship between the observer and the observed, the purpose for which it was done, and the personal attributes of the person who was observed or recorded. In the context of this case, that meant that students who knew they were being observed by school surveillance cameras which had been installed for security purposes could nonetheless reasonably expect that they would not also be recorded by a teacher secretly recording video of their intimate body parts for sexual purposes.

In reaching that conclusion the majority of the Court relied on a number of considerations, including the problem to which the voyeurism offence was directed, Parliamentary reports at that time, and so on. In addition they held – over the objections of the minority – on principles arising from jurisprudence about section 8 of the Charter, the right to be free from unreasonable search and seizure, which is meant to protect a reasonable expectation of privacy. In particular they relied on the fact that privacy is meant to be assessed normatively, as the amount of privacy we are entitled to expect, rather than based on a risk analysis of the amount of privacy we can guarantee as a practical matter. They observed:

[63] Relatedly, the privacy jurisprudence recognizes the potential threat to privacy occasioned by new and evolving technologies more generally and the need to consider the capabilities of a technology in assessing whether reasonable expectations of privacy were breached by its use: see Wise, at pp. 534-35; Tessling, at para. 16; see also Alberta v. UFCW, Local 401, at paras. 20 and 27. As Voith J. observed in Rudiger, even where a permanent recording is not made, technology may allow a person to see or hear more acutely, thereby transforming what is “reasonably expected and intended to be a private setting” into a setting that is not: para. 98, see generally paras. 93-98. While evolving technologies may make it easier, as a matter of fact, for state agents or private individuals to glean, store and disseminate information about us, this does not necessarily mean that our reasonable expectations of privacy will correspondingly shrink.

Similarly they noted “The development of new recording technology, and its increasing availability on the retail market, may mean that individuals come to fear that they are being recorded by hidden cameras in situations where such recording was previously impossible; however, it does not follow that individuals thereby waive expectations of privacy in relation to such recording or that retaining such an expectation becomes unreasonable” (para 68).

Both the nature of the technology and that the accused was recording rather than simply observing were seen as important. The Court noted 

[74]…Recording has a greater potential impact on privacy than does mere observation, as a recording can be saved for long periods of time, replayed and studied at will, dramatically transformed with editing software, and shared with others — including others whom the subject of the recording would not have willingly allowed to observe her in the circumstances in which the recording was made. Indeed, in the case at bar, the recordings would have allowed Mr. Jarvis, by watching the videos he had made, to “observe” students in a manner that would otherwise be unimaginable. If Mr. Jarvis had attempted to stare at students’ breasts while standing directly beside them for long stretches of time, as he effectively could do by watching the recordings he made, it is inconceivable that the students would not have taken evasive action or that school authorities would not have been alerted to this behaviour earlier.

Similarly, noting that not all forms of recording are equally intrusive, they held “the students would have reasonably expected that they would be captured incidentally by security cameras in various locations at the school and that this footage of them could be viewed or reviewed by authorized persons for purposes related to safety and the protection of property. It does not follow from this that they would have reasonably expected that they would also be recorded at close range with a hidden camera” (para 76). Putting the emphasis from that point in a different way, the Court also observed that although their decision here was recognizing a form of privacy in public spaces, that did not prevent all recording in such places:

[89] In today’s society, the ubiquity of visual recording technology and its use for a variety of purposes mean that individuals reasonably expect that they may be incidentally photographed or video recorded in many situations in day-to-day life. For example, individuals expect that they will be captured by video surveillance in certain locations, that they may be captured incidentally in the background of someone else’s photograph or video, that they may be recorded as part of a cityscape, or that they may be recorded by the news media at the scene of a developing news story. In the school context, a student would expect that she might be captured incidentally in the background of another student’s video, photographed by the yearbook photographer in a class setting, or videotaped by a teammate’s parent while playing on the rugby team.

A further element about the voyeurism offence which has been ambiguous is the requirement that the observation or recording be “surreptitious”. The meaning of this term was an issue in R v Lebenfish, where the accused was openly taking pictures of other people present on a nude beach, but without their knowledge. The debate there was more or less between the views that the accused’s behaviour was not surreptitious because he did not try to hide that he was taking photographs, or that it was surreptitious because the people being photographed were unaware of that fact. The trial judge acquitted by taking a photographer-centric interpretation as opposed to a subject-centric approach. Jarvis might, on the face of it, suggest that the subject-centric approach is the more appropriate one. On the other hand one might equally argue that those concerns are now adequately dealt with by the “reasonable expectation of privacy” analysis in the offence, and therefore that the “surreptitious” analysis should focus on different concerns.

Transmission data warrants not limited to transmission data

The Newfoundland and Labrador Court of Appeal has adopted a very broad and expansive interpretation of police powers in relation to electronic data with its decision in Re: section 487.02 of the Criminal Code. Police in that case had sought a transmission data recorder (TDR) warrant under section 492.2 of the Criminal Code, a provision which was added in 2014. A TDR warrant only allows for the gathering of “transmission data”, which is defined as data that:

1. relates to the telecommunication functions of dialling, routing, addressing or signalling;
2. is transmitted to identify, activate or configure a device, including a computer program as defined in subsection 342.1(2), in order to establish or maintain access to a telecommunication service for the purpose of enabling a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication; and
3. does not reveal the substance, meaning or purpose of the communication.

In essence, the purpose of a TDR warrant is to determine which devices communicate with which other devices, but is specifically not meant to gather information about the content of any of those communications.

The Criminal Code also contains section 487.02, the assistance order provision, which allows a judge, where some other warrant has been issued, to “order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant”. At a time when, for example, intercepting a telephone call would have required some physical device to have been placed on a telephone line, an assistance order would have been issued to the technician with the appropriate knowledge to install that device. It was the proper scope of section 487.02 in the context of a TDR warrant that was at issue.

In this case, the RCMP obtained a TDR warrant to determine which telephone numbers were communicating with a particular identified cell phone which was associated with an investigation. In addition, they sought a section 487.02 assistance order requiring the telecommunications service providers to also provide the RCMP with the subscriber information associated with those other telephone numbers. The Provincial Court judge to whom they applied refused to grant the order, holding that that fell outside the scope of an assistance order. The Crown sought judicial review of that decision in the Supreme Court of Newfoundland and Labrador, General Division, but that court upheld the Provincial Court decision: the judge concluded that the point of an assistance order in the context of a TDR warrant could only be to assist in obtaining transmission data, and that “subscriber information is not transmission data.”

The majority of the Newfoundland and Labrador Court of Appeal, however, granted the Crown’s appeal. They reasoned – based in part on fresh evidence they received from RCMP officers about how police use the information they obtain from TDR warrants and why the need assistance orders – that section 487.02 could be used to order the production of subscriber information. They review the principles of statutory interpretation and the history of the section, including the predecessor section which was replaced, but the essence of their reasoning is that transmission data is usually of very little use to the police by itself without subscriber information and therefore that Parliament must have intended that the police could also obtain subscriber information. In addition, where the lower courts had in effect reasoned that subscriber information was not clearly included within the definition of “transmission data”, the majority in the Court of Appeal held that it was not clearly excluded.

The dissenting judge agreed with the interpretation of the courts below and argued that the majority approach “allows for an unwarranted and uncontrollable extension of the type of information that the police would be able to obtain in the course of executing a TDRW” (para 68). He agreed that allowing police also to obtain subscriber information would make an investigation more effective, but that that was not the purpose of an assistance order.

With respect, the reasoning of the majority seems to ignore the significance of the fact that a TDR warrant is available based on the low standard of reasonable suspicion, rather than the more demanding standard of reasonable grounds to believe. They do make note of this point, observing at paras 48 to 53 that if the police were required to obtain a production order or general warrant in order to get the subscriber information, this would make things more difficult for them by requiring them to meet the higher “reasonable grounds” standard. What the reasoning of the Court of Appeal seems not to recognize is that that is exactly the point. There is meant to be a balance between the privacy interest intruded upon and the strength of justification required for intruding on it: the reasonable suspicion standard is only meant to be sufficient when the privacy interest in the information to be gathered is relatively minor. In other contexts, obtaining the name and address of a subscriber has been seen as significant enough to require the police to meet the “reasonable grounds” standard (see for example R v Spencer, 2014 SCC 43): allowing an assistance order to “tack that on” to a reasonable suspicion TDR warrant arguably violates section 8.

It seems more likely that the intended purpose of a TDR warrant is as a bridging mechanism to more intrusive investigative techniques. For example, if a particular cell phone is associated with one member of a conspiracy and, out of all the numbers in communication with that phone over a one week period, two of those numbers were in touch twenty times a day, that might well give the reasonable grounds necessary to obtain a production order for the subscriber information for those two phones. There would have been no need, however to obtain the subscriber information for all callers right from the start.

Law society tribunal found that lawyer failed to adequately supervise articled student; in part due to lack of familiarity with social media

A discipline tribunal of the Law Society of Ontario has disciplined a lawyer for professional misconduct entirely based on the use of social media and creation of websites by his articled clerk. The findings in Law Society of Ontario v. Forte were largely based on an agreed statement of facts. The lawyer, who was a sole criminal law practitioner took on his first articled student, Nadia Guo, at the end of June 2015. Within a couple of weeks, the articled student was arrested in a courthouse after an altercation with counter staff. She posted on Craigslist, Twitter and Reddit that she had been illegally arrested. She also made a number of very intemperate postings on the Criminal Lawyers’ Association listserve, got into arguments with list members and then tweeted about it. By the end of July 2015, the lawyer and the law society had received a number of complaints about the articled student’s postings.

Despite being the subject of complaints and some intervention by her principal, the articled student continued offensive postings on Twitter, including some that appeared to disclose confidential client information. A Crown attorney wrote to the lawyer, advising him that some comments posted on her Twitter account not only contained offensive language, but also referred to privileged and confidential information. The lawyer suspended her two weeks later, but in the meantime, the inappropriate online conduct continued:

[20] On December 14, 2015, Ms. Guo posted a series of tweets about the inefficiencies of the court system and how all court clerks should be fired and replaced by robots. She also described them as having jobs that were incredibly “futile and outdated.” This incident led to a request by the Lawyer that the student apologize to the court staff at Old City Hall.

[21] On December 18, 2015, Ms. Guo then posted a lengthy apology letter on Twitter addressed to the court clerks in question. Although the letter apologized for the “poor choice of wording” used in the earlier tweets, it then repeated some of her earlier arguments about robots replacing court staff.

[22] Following the delivery of the apology, a Justice of the Peace e-mailed the Lawyer to advise that two of her clerks were “very distressed” about Ms. Guo’s conduct. She expressed concerns about the fact that the student’s tweets were unprofessional, uncalled for, and inflammatory. The Lawyer responded to this e-mail thanking the Justice of the Peace for drawing the student’s conduct to his attention, reporting that he had begun monitoring the student’s tweets, and agreeing that the posts in question were inappropriate and offensive.

[23] Following Ms. Guo’s suspension, she made private or deleted her Twitter account. However, for a period of time she continued to post tweets on the Lawyer’s firm Twitter account in the Lawyer’s name, without his knowledge. She also continued to operate a personal website, containing a link to the Lawyer’s website, which at one point listed the names of more than 50 “Bad Cops,” two “Bad Crowns” and two “Bad Judges.”

[24] The Lawyer finally terminated Ms. Guo’s articles on February 20, 2016.

The Tribunal related a series of interventions the lawyer made respecting the articled student’s conduct.

[26] Beginning in July, the Lawyer had many conversations with Ms. Guo to attempt to educate her about the uncivil and intemperate tone of many of her communications. He also arranged for her to meet with seven other lawyers over time, five of them women, and several of those women racialized. He instructed her on various occasions to cease her Twitter activity and to apologize to those offended by her actions. The Lawyer also responded directly to court staff, crown attorneys, defence counsel and others who had been offended by her conduct.

[27] Unfortunately, none of the Lawyer’s efforts made any real change in Ms. Guo’s behaviour. On one occasion, for example, he ordered her to take down her Twitter account, only to learn that she had opened another soon after. After he ordered her to take the second one down, he learned she had been tweeting, without his knowledge, from his firm Twitter account.

[28] The Lawyer’s unfamiliarity with social media appears to have been a significant contributing factor. He appears to have only reviewed the student’s personal Twitter account during the CLA listserve incident, through his wife’s account. He never reviewed Ms. Guo’s personal website, which contained inflammatory and inaccurate material as well as information about client cases that had been posted without his consent. He allowed Ms. Guo to create a Twitter account for his firm, but never reviewed it at any time.

Ultimately, her unprofessionalism became his misconduct as he was responsible for the supervision of his articled student. And his lack of familiarity with social media may have contributed to the situation, it was not seen as an excuse:

[40] Unfortunately, the Lawyer’s well-intentioned efforts at supervision were inadequate; he failed to monitor or control Ms. Guo’s Twitter account, failed to review the contents of her website, trusted her assurances for far too long, and failed to take appropriate disciplinary measures until it was far too late. The Lawyer’s unfamiliarity with social media, or the demands of his busy practice, do not excuse this conduct.

[41] Given the facts outlined above, we determined that the Lawyer failed to assume complete professional responsibility for his practice by failing to adequately supervise Ms. Guo.

The tribunal ordered a reprimand, coaching, attendance at two law society continuing legal education programs and that the lawyer pay the Society’s costs of $3500.

Employees unable to locate or access $190 million in cryptocurrency

A number of media outlets (including the Halifax Chronicle Herald, the CBC and CNN) are reporting that Vancouver-based cryptocurrency exchange QuadrigaCX has filed for creditor protection in Nova Scotia after the death of the company’s founder, CEO and sole director. The company, it is reported, was already facing liquidity challenges when early last year CIBC froze $25.7 million of its funds that were held in the account of a third-party processor. The founder’s death, it appears, has left the remaining employees unable to locate or access $190 million of customer’s funds. Its filings in the Nova Scotia court indicate that the company owes 115,000 customers about $250 million in cash and cryptocurrency.

Electronic evidence requires authentication

The British Columbia Court of Appeal offered guidance on the proper use of evidence from Facebook, finding that it had been improperly introduced in R v Ball. The accused had been convicted of arson, specifically of having set fire to a property of a former friend. He came to the attention of the police when his ex-girlfriend attended at an RCMP detachment to report that he had told her that he was responsible for the fire. She called up her Facebook page on a detachment computer and showed several messages from an account that she identified as belonging to the accused, and which constituted admissions to setting the fire. The officer took photographs of the computer screen with those pages on it.

At trial, those photographs were admitted into evidence, although the accused maintained that the Facebook messages were forgeries. In fact, the British Columbia Court of Appeal noted, whether the photographs were admissible depended on the portions of the Canada Evidence Act dealing with the authentication of electronic documents, but this point seemed to have occurred to no-one at the trial:

[67] Facebook posts and messages, emails and other forms of electronic communication fall within the definition of an “electronic document”. Home computers, smartphones and other computing devices fall within the definition of a “computer system”. Accordingly, the admissibility of Facebook messages and other electronic communications recorded or stored in a computing device is governed by the statutory framework. As with other admissibility issues, where there is reason to question whether an electronic document meets the statutory requirements, a voir dire should be held and a reasoned determination made as to its admissibility. This step is particularly important in the context of a jury trial.

The Court of Appeal noted that the person seeking to introduce an electronic document has the burden of proving its authenticity, based on the best evidence rule. In that regard the Act states:

31.2(1) The best evidence rule in respect of an electronic document is satisfied: (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored…

In this case, no efforts had been made to authenticate the evidence. That was particularly important given the nature of the evidence and the issues at trial. The alleged admission to lighting the fire would be hearsay, but the timestamps associated with the message would be real evidence. The evidence consisted only of photographs of the computer screen, not printouts. The only evidence of authenticity came from the ex-girlfriend, but she only addressed the content of the messages, not the time stamps or other data. Further, the only evidence about the operation of Facebook messenger came from the ex-girlfriend: however, the accused’s claim was that the messages had been tampered with, and that she was the one who had done the tampering.

The British Columbia Court of Appeal did not conclude that the evidence was not admissible, holding only that “[i]t is sufficient to say there is a realistic possibility that, properly scrutinized, the judge may have justifiably excluded or limited the evidentiary use of the photographs” (para 87). Based on that and other errors, they ordered a new trial.

US Second Circuit Court of Appeals finds total internet ban as part of supervised release conditions “excessive” and unconstitutional

In United States v. Eaglin, Eaglin was a convicted sex offender who had been convicted several times for breaching conditions attached to his release, primarily those relating to registering as a sex offender when he relocated. Because he had, in the past, used internet-enabled devices to look for sexual partners and view pornography, the prosecution viewed these as risk factors and had convinced the District Court to impose a total ban on Eaglin using the internet or viewing legal adult pornography. Eaglin successfully appealed these conditions, the Court of Appeal beginning the substance of its reasons by describing them as “unusual and severe.” It noted that the US Supreme Court had recently “forcefully identified” internet access as a constitutional right, on the basis that deprivation of internet access prevented legitimate exercise of freedom of expression rights. The total ban proposed was obviously excessive since it prevented him from using email, blogging, keeping track of the events of the day, or looking for work—the latter not interacting well with the accompanying condition that he remain employed. The Court remarked:

Today, as we observed above, access to the Internet is essential to reintegrating supervisees into everyday life, as it provides avenues for seeking employment, banking, accessing government resources, reading about current events and educating oneself.

Nor was the ban logically connected to his relevant convictions, which were for failure to register as a sex offender; none of his previous crimes had involved internet use. Even monitoring of internet usage would be more tailored to the circumstances of the case and less restrictive than the total ban. Similar findings were made regarding the ban on pornography. The Court concluded:

…the special conditions of supervised release banning access to the Internet and to adult pornography are substantively unreasonable in the circumstances presented here because neither is reasonably related to the relevant sentencing factors and both involve a greater deprivation of liberty than is reasonably necessary to implement the statutory purposes of sentencing.

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).