The Power of Perspectives

The Canadian Bar Association

Justin Ling

Criminal law

Confidential informants: Widening the circle of privilege

By Justin Ling September 22, 2017 22 September 2017

Confidential informants: Widening the circle of privilege

 

Are confidential informants outing themselves to evade prosecution? If so, how should the courts step in to strip them of that privilege? Even if they haven’t, how do you prosecute an informant once they’ve identified themselves as such? 

That was the question before the Court of Queen’s Bench of Alberta earlier this month. 

Here’s the scenario: Police charge a suspect. During the first interview, the suspect reveals information that could later be used at trial. But, during that first interrogation, the suspect also reveals he’s a confidential informant, a fact until then unknown to the arresting officers. 

“The Crown faces a conundrum,” writes Justice J.A. Antonio assigned to the perplexing case. “If it includes the interview, redacted or unredacted, in the disclosure package for the criminal trial, it will effectively be informing defence counsel that Named Person A is a confidential informant.” 

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Privacy

RCMP conducted unauthorized searches using mobile tracking technology

By Justin Ling September 14, 2017 14 September 2017

RCMP conducted unauthorized searches using mobile tracking technology

 

We've been waiting for this for some time but we finally know the legal basis behind the RCMP’s use of IMSI catchers. 

The RCMP have used the mobile phone eavesdropping and tracking technology, sometimes referred to as Mobile Devices Identifiers (MDIs) or by the brand name Stingray, in 125 investigations, according to a new report by Privacy Commissioner Daniel Therrien. 

Strikingly, the RCMP concluded that judicial authorization wasn’t always necessary to use the technology, which can scrape identifying data from all cellphones within kilometers — including those of innocent bystanders — and can geographically pinpoint a cellphone. 

In six cases, the RCMP broke the Privacy Act and conducted unauthorized searches, contrary to section 8 of the Canadian Charter of Rights and Freedoms, Therrien found.

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Cybersecurity

Is Canada ready for a new data breach notification regime?

By Justin Ling September 13, 2017 13 September 2017

Is Canada ready for a new data breach notification regime?

 

Businesses in Canada are going to have to get serious about figuring out how to respond to a data breach.

This week’s massive Equifax breach is a reminder of the stakes at play when dealing with users’ data. The looming implementation of proposed regulations under Canada’s Digital Privacy Act should also stiffen their resolve.

After Equifax’ systems were hacked, data on as many as 143 million Americans — and possibly a number of Canadians and others — was potentially compromised.

The fallout has the U.S. Congress demanding answers, the New York Attorney General’s office has launched an investigation, and class action lawsuits are being filed against it across America.

One application for a class action, filed this week in a New York courtroom, contends that Equifax acted negligently by taking more than a full month to report the breach to their consumers on September 7, after learning of it on July 29.

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Privacy

Digital privacy at the border: What’s in your phone?

By Justin Ling September 1, 2017 1 September 2017

Digital privacy at the border: What’s in your phone?


As it stands, crossing the border back into Canada can be risky privacy-wise.


To order a search of a traveller, their briefcase, or cellphone, a border guard need only have a reasonable grounds for supposing that they have “contraband secreted about his or her body,” as the Supreme Court established in 1988’s R. v. Simmons.

Such reasonable grounds are enough for customs officers to take actions that risk subjecting travellers to some pretty embarrassing and compromising situations — such as imposing “bedpan vigils” on people suspected of using their bodies as a vehicle for smuggling drugs.

In R. v. Monney, the Supreme Court of Canada held that was the price to be paid to strike a “necessary balance between an individual’s privacy interest and the compelling countervailing state interest in protecting the integrity of Canada’s borders from the flow of dangerous contraband materials.”

That was in 1999, when cellphones were repositories of little more than contacts and call logs. Even desktop computers could hold little more than 15 gigabytes of data.

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Copyright law

Battle over costs of fighting online piracy might be heading to SCC

By Justin Ling August 24, 2017 24 August 2017

Battle over costs of fighting online piracy might be heading to SCC

 


Canada’s notice-and-notice regime could soon see its first test at the Supreme Court as Rogers Communications fights for the right to charge rights-holders for the trouble of contacting those pirating copyrighted material.

It’s a legal battle that will serve to hone Canada’s unique copyright laws, but could also determine whether notice-and-notice continues to be the easiest avenue for rights holders, or whether it will be abandoned in favour of other methods to go after pirates.

The case is between Voltage Pictures and Rogers. The former, a film production company, has fought vigorously to go after those trafficking in their films online, conscripting Rogers to help it do so.

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