RSS FeedCase Comment – Gomboc Decision, 2010 SCC 55
Here is a link to my website for a case comment on the Gomboc that will be published in an upcoming issue of RegQuest.
Enjoy the reading.
Careless Driver Convicted After Boasting Online: Issues Surrounding Internet Statement Evidence
From my blog: Simon Says, Category: Police and Law News.
CTV News: Careless Driver Convicted After Boasting Online
Issues Surrounding Internet Statement Evidence
The gist of the story is that Vladimir Rigenco, a 19 year old man from Vaughn, Ontario pled guilty to Careless Driving in a Provincial Court and received a six month driving prohibition, 1 year probation under the Provincial Offences Act, and a $1000 fine. He was charged after he posted comments on a car enthusiast forum about how he had driven his 2006 BMW M5S at speeds of more than 100 km/hr over the speed limit.
This case raises some interesting issues surrounding electronic “statement evidence” and the anonymity of the internet. The issues were not brought before a court in this case, because it was resolved by way of a plea bargain and not a trial, but obviously the crown believed they had enough evidence to proceed with charges.
The primary issue that arises with electronic statement evidence (usually someone admitting or boasting of a crime on the internet or making threats against someone electronically) is that of identity. Just because something originates from a specific account, does not mean that the registered owner or user of that account was the person at the keyboard when the statement was made.
It is a simple enough defence to say that other people than the registered owner have access to the account, either with permission or without. In fact, in my opinion (and the opinion of most police officers I know and worked with), this defence is so common sense that it prevents an officer from forming reasonable grounds that the owner of an account is the one who committed the offence.
A parallel issue surrounding identity is how the actual identity of the real person who owns/uses an account is determined. Most people don’t use their real names on their internet accounts and, even if they do, there is no mechanism in place to determine if someone inputting the name Simon Borys is actually the real Simon Borys. (Would the real Simon Borys please stand up!?)
In order to determine the identity of the person behind an account, police usually have to write Production Orders for the companies that own the servers that host the website or forum in question to get the IP address that the statements originated from (unless they are publicly available). They then have to write a Production Order for the Internet Service Provider of that IP address to determine the actual name and location of the registered owner of the account.
That still only gets them to the house or building the statements came from, which can assist with providing corroborative evidence if the police already believe it was Simon Borys who made the statements and the IP address is registered to Simon Borys’ father at the house Simon Borys lives at. But there still might be a defence that it was someone else in the house who made the post, especially if it’s a public building or something like a student residence.
This type of investigation is time and resource consuming and does not even guarantee the identification of a suspect. However, it can be useful when other investigative avenues exist. In this case, if police had the address which the post originated from, they would have been able able to search Ministry of Transportation records for all the people residing at the house to determine if anyone there owns a 2006 BMW M5S.
A second issue of fundamental importance with respect to electronic statements is whether there is any corroborating evidence at all. Someone can, and people often do, make false claims on the internet (or elsewhere) for any number of reasons. In this case, perhaps Rigenco just wanted people to think he was cool. The bottom line is that if there is no evidence other than a statement, I would suggest that is not sufficient evidence to lay a charge.
The belief that a statement alone is sufficient evidence, when taken to its logical extreme, ends in absurdity. If I say I smoked marijuana can I be arrested for possession? If I say parked in a no parking zone can I be given a ticket? It’s just not logical to think that an unsupported inculpatory statement meets the threshold of reasonable grounds. Where is the evidence? I don’t know if there was additional evidence in this case, but the issue remains.
I hope that after reading this people have a little better understanding of the complexity and difficulty of internet related investigations and keep in mind that police are unlikely to undertake this type of investigation for all but the most serious offences.
Does A Police Officer Have To Show Up For Court?
From my blog: Simon Says, Category: Police Myths.
Does A Police Officer Have to Show Up For Court?
Today, in my continuing saga of addressing Police Myths, I will be answering the question “does a police officer have to show up for court?” Although it is well known that officers sometimes do not show up for traffic court, Simon Says: Yes, they do have to attend court!
Attending all levels of court to give evidence in both criminal and provincial offence matters is one of the duties of a police officer. Section 42 (1) (e) of the Police Service Act lists one of an officer’s duties as “laying charges and participating in prosecutions” (that means showing up for court). Usually, this duty is also spelled out explicitly in the police service’s policies and procedures. The Court Attendance policy of the service I used to work for stated, “Members shall attend court as specified in the procedure.” In fact, later in the policy, under the duties of the Officer in Charge, it states that they are to take disciplinary action against an officer who did not attend court as required.
So why do officers occasionally not show up for traffic court? Most people have heard of someone who went to court to fight a traffic ticket, was told the officer wasn’t there, and had the ticket withdrawn.
The reason for this is usually that the officer got tied up dealing with something on the road and was not able to finish it in time to get to court. Officers start their shifts early in the morning (usually 7:00 am), which gives them plenty of time to get involved in something by the time court is scheduled to start (usually 9:30 or 10:00 am). Due to the nature of situations an officer deals with on the road, they can’t always just stop what they’re doing to go to court.
The other most common reason is that the officer is on holidays or sick.
In either case, without the officer to give evidence, the crown prosecutor likely has no reasonable prospect of obtaining a conviction, which leaves them with two choices. They can either bring a motion to adjourn the matter to a latter date or withdraw the charges. Which option they choose depends on a number of factor, primarily the seriousness of the offence. In criminal court, the crown will always bring a motion to adjourn, and it will probably be granted by the Judge. In provincial offences court it is far more likely that the crown will withdraw, especially if there are civilian witnesses who would be inconvenienced by having to return on another date.
The important thing to remember about this myth is that it is not up to the officer’s discretion whether they will attend court. Regardless of what they have said when issuing a ticket or what impression they left you with, they must attend court unless they are physically unable to do so.
World Institute for Research and Publication (WIRP) Presentations
I presented a couple papers this morning at the Annual Meeting of the World Institute for Research and Publication – Law. You can read more about the conference over at Slaw.
The presentations, with audio and complete papers, are available on the WIRP site, or on SlideShare below:
Full Paper: Media Narratives in Times of Turmoil: Depictions of Minorities in Canada Post 9/11
Full Paper: Admissibility of Alcohol and Gaming Commission of Ontario Reports
Is Signalling Always Required on Roads in Ontario?
From my blog: Simon Says. Category: Police Myths
Prompted by one of the comments to my blog post, Is is legal to pass on a solid yellow line?, I will be writing today about whether signalling a turn or a lane change is always required. Simon Says: No!
First let us explore the relevant section of the Highway Traffic Act. Section 142 (1) states: “The driver or operator of a vehicle upon a highway, before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway, shall first see that the movement can be made in safety, and, if the operation of any other vehicle may be affected by the movement, shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.”
Regina v. Lebedorf, [1962] O.W.N. 233 (H.C.), creates two separate offences out of this section. The first is the offence of failing to see first that the movement can be made in safety (Turn/Change Lane Not in Safety* – $110 fine/$180 in a community safety zone) and the offence of failing to give a signal plainly visible to the operator of any other vehicle that may be affected by such movement (Fail to Signal Turn/Lane Change* – same fines). For the purposes of this post we will deal with the second offence.
In Regina v. Dillman, [2008] O.J. No. 1120 (Ont. C.J.), the court determined that the offence of turn-not in safety set out in subsection 142 (1) of the Highway Traffic Act was an offence of strict liability. I am persuaded, largely by the Supreme Court’s decision in Regina v. Sault Ste Marie, [1978] 2 S.C.R. 1299, that this classification must apply to the offence Fail to Signal as well. In Sault Ste Marie the court indicated that there is a presumption of strict liability for these types of offences, unless it has been determined otherwise. It does not appear that it has Fail to Signal has been classified as an absolute liability offence and, further, it was conceded in Dillman that the other offence in the same section is not either.
Strict liability means that the prosecution is required to prove actus reus (that the prohibited act itself was committed) beyond a reasonable doubt. But, in strict liability cases, the defendant can make a defence of due diligence, based on a balance of probabilities, by showing that they took all reasonable steps to avoid the offence.
Whether signalling a turn or lane change is always required hinges on one word in the section: if; “if the operation of any other vehicle may be affected by the movement, shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.”
Signalling applies to motor vehicles, trailers, and bicycles and can be accomplished by either electronic means (blinkers) or by way of hand signals, as outlined in Section 142, subsections 3-6. But, if there is no one else on the road to be affected, it is not an offence to fail to signal. If an officer observes a driver fail to signal a turn or lane change and wishes to lay the charge against them, they will be required to articulate in court what other vehicle was affected by the turn and how.
Common sense would dictate that “being affected” requires that the person being affected actually be forced to make a course correction, accelerate, or decelerate, in order to avoid a collision with the vehicle that failed to signal. I would suggest that a person (including a police officer) cannot “be affected” if they simply observe the failure to signal from a distance.
However, whether or not it is legally required to signal in a particular situation, we must remember the intent of the legislation: to create an orderly and predicable flow of traffic in order to avoid collisions. Based on that premise it seems prudent to form a habit of signalling, in order that it not be forgotten when needed.
*These are the approved short form wordings for the offences under Section 142 (1)
Does a police officer have to show you the number on the Radar?
From my blog: Simon Says. Category: Police Myths.
Another question I was asked frequently during my time as a police officer is, “Does the officer have to show you the number on the Radar they used to clock your speed?” Simon Says: No!
This is another myth that probably began from some jurisdiction in the United States, but in Ontario this is not required. I believe this holds true in all other Canadian jurisdictions as well. This applies for both Radar and Laser units, which are the two types of speed measuring devices in common use by police services in Ontario.
Speeding is considered an absolute liability offence, which means that the Crown does not have to prove that you intended or even knew that you were speeding. They only have to prove that you were. An absolute liability offence means that there are no defences of due diligence available to the defendant to excuse their actions. The key piece of evidence the Crown needs to prove the offence of speeding is the measurement from the speed measuring device. The officer’s verbal evidence in court as to what reading he locked on the device will be sufficient evidence to prove the speed (though not necessarily the whole case). The officer’s verbal evidence can be challenged but if all you do is disagree with the speed they testify to, it is not likely you will be believed, unless the officer has credibility issues. The court usually weighs officer’s accounts of numbers heavily, since they were specifically in the execution of their duties at the time and made notes of everything during the incident or shortly thereafter.
With respect to not being allowed to view the device, Section 46 (2) of the Provincial Offences Act entitles defendants to “make full answer and defence.” However, creating a proper defence for a speeding trial does not require that the defendant viewed the speed measuring device to confirm that the officer read it correctly. Reading the numbers on a digital display is one of those things that police are trusted to be able to do accurately so claiming that the officer read the numbers wrong will probably not be the key to creating a proper defence. It would be up to the defendant to articulate why they feel the officer was wrong in their particular case and how their inability to confirm the reading prejudiced their ability to make a proper defence. To my knowledge no one in Ontario has successfully made this argument yet, but if you’d like to be the first, give it a shot!
Personally, I rarely ever showed people the Radar or Laser I used, except maybe if it was a confused old grandma who didn’t speak English very well and clearly had no idea what was going on. First, because it’s just not relevant to a person’s ability to make a defence, since I was confident in my ability to read the digital display properly and second because I know an officer who showed a roadside device to someone to check the reading and had the person grab it from them and smash it on the ground! In my experiences the bosses are not very happy when you cost the service more than twice as much as it would have cost them to pay you to stay home for the day…ask me how I know! :)
Former NHL’er Ramage Has Appeal
Former St. Louis Blue and Toronto Maple Leaf has had his second day in court. This time to appeal a conviction that led to a four year sentence for Impaired Driving Causing Death in connection with the accident that claimed another former NHL’er, Keith Magnuson.
The appeal will focus around two specific issues:
1. Was Ramage’s Charter rights violated through the collection of his urine at the hospital?
2. Should the court find that they were not violated, is the four-year sentence imposed by the Ontario Superior Court too harsh?
The court appears to be already leaning toward reducing the sentence through the words of Justice David Doherty who indicated
I think it’s fair to say we’re all concerned about the length of sentence.
To me this is an interesting case and one that affects me personally. I worked with many (if not all) of the officers involved in this case, however, this specific incident was before my time. No police officer likes losing a case because of an error that they committed (i.e. Charter breach), however, although the defence has suggested the officer wilfully breached Mr. Ramage’s rights. It is more likely the officer was acting in good faith with respect to the investigation.
But this begs the question. If an officer, who acting in good faith, breaches an accused person or suspect’s rights, in situations such as this, is justice better served in upholding a conviction or upholding a what would ultimately be a minor Charter violation.
You may wonder why I say minor? Because ultimately, although a breach may have occurred, a warrant surely would have been granted to obtain bodily fluids.
Discuss.
Don’t Smile when Depressed and Dancing with Strippers
Nathalie Blanchard of Bromont, Quebec, has been on sick leave for a year and a half for long-term chronic depression.
The 29-year-old woman had her benefits cut by IBM after she posted pictures on Facebook at a male stripper show, her own birthday party and on holidays. Her Manulife representative told her that,
I’m available to work, because of Facebook.
Ironically, most of these events were recommended by her physician as part of her treatment.
Depression is not like other disabilities where Facebook has been used to demonstrate lack of impairment. The complex parameters of a psychosocial condition like depression is entirely distinct from factors such as range-of-motion, flexibility, and strength that are more commonly assessed in physical disabilities.
Thomas Lavin, Blanchard’s counsel, expressed similar reservations,
I don’t think for judging a mental state that Facebook is a very good tool. It’s not as if somebody had a broken back and there was a picture of them carrying …a load of bricks. My client was diagnosed with a major depression. And there were pictures of her on Facebook, in a party or having a good time. It could be that she was just trying to escape.
We don’t know if Blanchard was bipolar, or has a chronic pain condition that may affect the presentation of her depression disorder. Although the inability to smile can lead to depression, those that do smile and possibly appear happy are not necessarily without depression.
And if we think about it for a second, Blanchard is not likely to select the photos of her sulking in the corner onto her profile. Facebook photos go through a screening process, essentially attempting to put the “best face forward.” What each person considers best, whether it’s attractiveness, professionalism, interesting, provocative, or wacky, does vary from person to person. In Blanchard’s case, where family and friends likely know about her prolonged bout with the blues, it is not unreasonable to expect her to at least try to look happy.
Here are some more established methods of evaluating depression, that long precede the use of Facebook photos:
- Hamilton Rating Scale for Depression (HRSD or HAM-D)
- Montgomery-Åsberg Depression Rating Scale (MADRS)
- Beck Depression Inventory (BDI or BDI-II)
- Zung Self-Rating Depression Scale
- And more.
As persuasive as Facebook photos might be to a jury, it lacks scientific reliability and validity. Insurance adjusters know this, and without corresponding clinical data to confirm any impressions, they should be reluctant to reject or terminate claims on the basis of photos alone without any context.
Facebook status update corroborates alibi
Popular social networking sites such as Facebook have been the focus of legal attention for issues of privacy, and for their increasing use as evidence against parties in legal matters. Many criminal defendants and parties to divorce proceedings have been considerate enough to record their misdeeds for posterity, and savvy prosecutors and divorce attorneys have been keen enough to try to use them.
One recent incident stands in stark contrast: using Facebook helped one New York teen to clear his name by corroborating a much needed alibi. Rodney Bradford, 19, was arrested as a suspect in a robbery case. The district attorney found his alibi – his parents claimed he was at home with them – dubious, up until Rodney’s attorney pointed out this Facebook status update made near the time of the robbery:
“Where’s my pancakes? Oct. 17, at 11:49 a.m.”
Charges were dropped after Facebook confirmed the status update was made from a computer located at Rodney’s father’s apartment.
Reported in NY Times Local for Fort Green
Secret evidence
Lifting the cover on Canada’s spy files
Michelle Shephard writes for the Toronto Star:
But beyond answering questions that have lingered for years about Khadr’s case, John’s testimony was a remarkable example of how the Canadian Security Intelligence Service is being forced into public.
“There really has been a paradigm shift in what is being disclosed and what’s not,” noted Toronto lawyer Lorne Waldman, who represented Maher Arar during a multi-million dollar federal inquiry.
Reputation Management Law is the Next Big Thing
Tony Wilson, of Boughton in Vancouver, wrote in this week’s issue of Lawyer’s Weekly,
Reputation matters… But it’s not just companies and trade-mark owners who have reputations to protect. We all do, and these days, much of our personal reputation is on the web for all the world to see.
Like many professionals, physicians in Canada operate by word-of-mouth referrals, largely based on the personal experiences of patients or other referring physicians. RateMDs has become an increasingly popular site for patients to share experiences about their physician.
It’s become enough of a concern to physicians that Sam Solomon provides some advice to MDs in this month’s edition of Parkhurst Exchange:
- Ask for the review to be taken down
- The Medical Justice approach of providing patients a contract allowing them to only post reviews on sites that confirm poster identity
- Sue
- Encourage patients to post positive reviews
- Use the criticism as an opportunity to improve practice
It’s unclear whether option 2) would hold up in court, and 1) is rarely effective, either due to confidentiality issues, site administrative policies, or simple refusal.
RateMDs was founded by the same people who made RateMyProfessors.com, RateMyTeachers.com, and the Ratingz.net network of rating sites that includes LawyerRatingz.com. It seems quite a few of my law professors are up there. A quick survey reveals that many Canadian attorneys have been rated, and most not favourably.
Assuming that the only people to ever review professionals are clients who have utilized their services is far too presumptuous. Competitors, business rivals, people with personal vendettas, and even opposing parties in lawsuits can pose as a client in an attempt to portray the person in a negative light.
It can and has happened. Solomon points to the case of Dr. Mohamed Foda of Leduc, Alberta, who forced RateMDs to provide information about a negative poster through the California Northern District Court in Foda et al v. RateMDs, Inc. On April 28, 2008, the Edmunton Sun covered the story,
An Edmonton urologist has launched a $12-million defamation lawsuit against two unidentified people for allegedly posting bogus poor ratings about him on the California Internet site RateMDs.com. In a March 31 statement of claim, Dr. Mohamed Foda alleges the postings were not made by actual patients of his, but by someone who has a “malicious” motive to harm his medical business, and states he will seek to identify the unknown defendants by searching for their computer identifying information. Foda claims the defamatory comments have caused irreparable harm to his reputation and medical practice and caused him emotional distress and anxiety.
The posts in question stated:
“This doctor prescribed me an antibiotic that causes birth defects after I clearly told him I was 4 months pregnant!! Apparently he made a ‘mistake.’” — Posted on RateMDs.com on October 1, 2007
“I found Dr Foda to ignore problems until drastic measures were required. Had to call numerous times to get an appointment. Felt that Dr Foda did not do required follow up in a timely manner. Did not inform patients of what he did in the OR [such as] remove tumours. Would have died if not for another [doctor].” — Posted on RateMDs.com on May 26, 2007
Administrator of RateMDs, John Swapceinski, says that the site gets letters from lawyers once a month. Not surprisingly, they do not comply with the requests. The site does serve an important public function for consumers of healthcare. But Swapceinski also said that Dr. Foda’s suit is the first time a lawyer has actually followed through and sued the site, and he indicated he would cooperate with a subpoena to release the information if one was provided.
In light of the Cohen v. Google and York University v. Bell Canada Enterprises cases I’ve covered previously, it’s probably no great surprise that the court did reveal the identity of the poster.
What is also unique about this case is that the person identified as the RateMDs poster was involved in different lawsuit on the other side of Dr. Foda in Foda v. Capital Health Region, [2007] A.J. No. 22; 2007 ABQB 19, where he was making a claim for breach of contract, conspiracy, harassment, defamation, and direct interference with economic relations.
The Court of Appeal ([2007] A.J. No. 668;2007 ABCA 207) upheld a motion to add a party to his statement of claim, but the defamation claim agains this party was struck for lack of evidence using the test in Botiuk v. Toronto Free Press Publications Ltd.,
62 …it is sufficient to observe that a publication which tends to lower a person in the estimation of right‑thinking members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability. See Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, at p. 1079. What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances. In The Law of Defamation in Canada (2nd ed. 1994), R. E. Brown stated the following at p. 1‑15:
[A publication] may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances, known to the listener or reader, which give it a defamatory meaning by way of innuendo different from that in which it ordinarily would be understood. In determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.
But if the party Dr. Foda was seeking to add in the Alberta case – a Donna Canart, Surgical Clinic Coordinator at Leduc Community Hospital – is the same person identified in the California proceedings, this evidence may now be available. Canart allegedly filed a report against Dr. Foda according to the Capital Health Corporate Workplace Respect Policy, raising issues in the Alberta case of malicious prosecution. However, similar defamation claims in Alberta were made against co-defendant Linda Scott. The California case has only had two hearings to date, and Dr. Foda only spoke in general terms to Sam Solmon, so it is difficult to ascertain which specific party was behind the RateMDs posting.
Even when a claim is substantiated, it is possible for either party to turn malicious. The Foda case highlights that litigants in lawsuits can and will attempt to affect the reputation of the opposing party online, something I’ve predicted repeatedly. All types of litigation will invariably cross over into this specialized area of law.
Some of these rating sites allow the professors to respond to their students, even with video. Or, as they put it,
Your professors have been reading your comments on RateMyProfessors.com. Now it’s their turn…
I don’t see other professions going the same way, given the nature of client solicitation. So where do people turn for help?
Wilson concludes,
Just like there was no such thing as Internet law before the Internet or franchise law before there were franchises, a new and growing niche area is “reputation management law.” It straddles libel, slander and defamation law, freedom of speech, privacy law, copyright and trade-mark law, employment law and the rules governing Youtube, Facebook, Twitter and other social media. And like environmental law 25 years ago, it has nowhere to go but up…
Either way, it’s clear that online reputation management is the next big thing that everyone will have to deal with.
Everyone reading this is now searching their name on LawyerRatingz.com, or other sites like CanLaw. They’re probably wondering what they would do if they were deliberately maligned, and trying to figure out who is the best”reputation management lawyer” they know, if any.
And that’s assuming that you waited until the end of the article to do so.
National security invoked to block testimony
Ottawa seeks to gag Afghan prisoner probe witnesses
Federal lawyers are trying to block government witnesses from testifying before a military watchdog investigating the treatment of Taliban prisoners in Afghanistan, The Canadian Press has learned.
