Political Contributions In Canada

Federal Political parties in Canada are only required to report the identities of contributors donating over $200 to one riding association or the central organization. For donations of $200 or less, receipts must be kept by the individual riding associations, but Elections Canada doesn’t record of them. Completely anonymous contributions of $20 or less are permitted.

Elections Canada confirmed in 2007 that individuals could contribute as much as $60,500 over the $1,100 limit – simply by donating $200 to each of a party’s 308 riding associations and Elections Canada would never know about it. Contributions of $200 or less are reported in aggregate, without a break-down by contributor to allow cross-checking across the riding associations.

However, we can search the Contributions & Expenses Database and other databases maintained by Elections Canada.

 

City Business Licences

Most cities issue business licences. Some cities make it easier to search the licences than others. Toronto allows you to make your own database by offering a Comma Separated Value (CSV) file at http://opendata.toronto.ca/mls/business.licences/business.licences.csv. This is great if you want to track what is at an address over time. We get this file every year and add a field for the year we get it.

You can use the Business Licence Lookup site at http://app.toronto.ca/LicenceStatus/setup.do?action=init to conduct an individual search.

 

Division of Powers — Property Rights

The provinces have been granted power over “property and civil rights in the province” in Section 92(13) of  The Constitution Act, 1867.

This division of power forced the Trudeau government to remove the right to private property from the Charter of Rights when the provinces protested its inclusion. The provinces saw this as limiting their ability to tax, expropriate, and exercise control over property ownership. Neither the federal nor provincial governments are under any constitutional obligation to pay fair (or any) compensation for expropriated property. The Constitution Act 1867 and the Charter of Rights do not address this issue. Legislatures are also free to legislate away your ability to use any property for any purpose. Ontario and Quebec will probably try this route to control firearms ownership once the Long Arm Registry is eliminated by the federal government.

This is starting to backfire. Landowner associations and grass-roots movements are starting to form in Ontario and Alberta.  These groups and movements to include property rights into the Charter of Rights will become a prominent feature of the political landscape in years to come.

New Standard for Privacy on Ontario Work Computers

I think R V. Cole, 2011 ONCA 218 will become the leading case on an employee’s expectation of privacy on a work-provided computer. This appeal was a partial victory to a Sudbury high school teacher charged with possession of child pornography. The Ontario Court of Appeal ruled that police violated his Charter rights when they searched his laptop without a warrant.

A search of Cole’s computer by the high school’s IT staff found sexually explicit photos of a Grade 10 student that he acquired from the student’s email account. The laptop was then turned over to the police and searched without a warrant. The proceeds of the police search were excluded while the IT technician’s search was proper as it was for the purposes of maintaining the school board’s network and the laptop.

Justice Karakatsanis wrote for the Ontario Court of Appeal which found the employee had a reasonable expectation of privacy in the contents of his laptop based on the following factors:

  • he had exclusive possession of the laptop;
  • he had permission to use it for personal use;
  • he had permission to take it home on evenings, weekends and summer vacation;
  • there was no evidence the board actively monitored teachers’ use of laptops;
  • the school board had no clear and unambiguous policy to monitor, search, or police the teacher’s use of his laptop.

This seems consistent with the prevailing case law regarding the recognition of an employer’s right to govern the use of their systems through policy, but it also recognises the rising privacy expectations of employees in the personal use of an employer’s system.

Anton Pillar Orders

Anton Piller Orders, named after the famous 1976 English case, Anton Piller KG v. Manufacturing Process Ltd. [1976] Ch 55 1 ALL E.R. 779, which defined the process of civil search and seizure under common law.

An Anton Piller order is obtained ex parte, and allows the moving party to access the premises of the other party to gather evidence that the court fears may be destroyed if the search is not conducted immediately. To many people this resembles a private search warrant but it is not.  The contempt power is used to enforce them rather than the normal criminal process where physical force may be used to execute the Order.  Nor does the Order authorize entry.  Rather, it commands the defendant to permit entry.  The defendant may deny entry, and thereafter face contempt proceedings.  The plaintiff’s agents may not use force to effect entry in the face of the defendant’s denial of permission.  The defendant may move to have the access limited after the search. Therefore, the order doesn’t necessarily give the moving party immediate access to the evidence, rather it preserves it, so that access can be determined at a later time.

With a search warrant, those strangers are police officers, who may use reasonable force to execute their search.  With an Anton Piller order, the strangers are not police officers (although they will usually include one peace officer from the Sheriff’s office or a Bailiff in Quebec).  They may not use force to gain entry, but rather the threat of jail or other punishment.

The premise of these orders is that (a) the defendant is likely to act to frustrate the order if given notice of it in advance; and (b) there is a strong prima facie case that the defendant has already acted very badly.  As Anton Piller orders play an increasingly important role in protecting businesses from disgruntled or departing employees (as in Ridgewood cited below), it is important for Investigators to fully understand their obligation to properly execute these orders.

A number of judgments have condemned the improper execution of these orders. An Ontario case,  Ridgewood Electric (1990) v. Robbie, contains an  excellent background of the Anton Pillar Order in Para [23] and demonstrates how not to execute the order. In Harris Scientific Products v. Araujo (2005), 54 Alta. L.R. (4th) 195, the Alberta Court of Queen’s Bench ordered damages of $35,000 for trespass and punitive damages of $10,000. Furthermore, the Alberta Court of Appeal in Catalyst Partners Inc. v. Meridian Packaging Ltd. established that there had to be strong evidence showing a real possibility that the defendant would destroy documents, not merely an inference or suspicion in order to issue an Anton Pillar Order.  In Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 the SCC ruled that Celanese had the onus of demonstrating that no prejudice would result from their solicitors carrying on in the file. As a result of the execution of an Order, the Celanese solicitors had come into the possession of confidential information attributable to a solicitor-client relationship, and the court said that the solicitors “bear the onus of showing there is no real risk such confidences will be used to the prejudice of the defendant.” This contentious case led the SCC to better define the  requirements for successful preparation and execution of an Anton Pillar Order. The following guidance is distilled from Celanese Canada Inc. v. Murray Demolition Corp.

  • An independent solicitor should act as a neutral officer of the Court to supervise the execution of the Order. This person should explain the Order to the Defendant and provide a objective report to the Court.
  • Limit the scope to only necessary material and no material should be removed from the site unless pursuant to the terms of the Order.  This is not a fishing expedition. However, allocate enough time and be methodical in your execution of the Order while documenting every step in the process.
  • The moving party should provide an undertaking and/or security for damages if the Order is unwarranted or improperly executed. The court does not want to deal with imposing fines etc. as in Harris Scientific mentioned above.
  • Include a procedure for dealing with solicitor-client privilege or other confidential materials. The court does not want a repeat of this problem as seen in Celanese above.
  • Return seized material as soon as practicable.
  • Commence the search during normal business hours when the counsel for the Defendant is available for consultation. Again, this was a problem faced by the Defendant in Celanese.
  • The premises should not be searched, or items removed, without the presence of the defendant or his responsible employee.
  • Persons conducting the search should be listed by name rather than just the number of people permitted.
  • A detailed list of all evidence seized should be made and verified by the Defendant before leaving the site.

Court Orders Facebook Download

Judge orders secret meeting to download Facebook account

The judge issued an order compelling Ms. Sparks’ lawyer, James Crocco, to secretly arrange to have a colleague call the woman to a surprise meeting without telling her why and then order to her download the entire contents of her Facebook site, including any photos and videos, so it could be examined in court.”

Escorts, Incalls, Outcalls, and Massage Parlours

The demise of the “Erotic Services” section of Craigslist in Canada has led to a rush to fill the vacuum. This has made it harder to identify prostitution ads being run by people who are carrying out other scams such as exaggerated or fraudulent insurance claims.

As these ads move to other venues, a predominate source will rise to the top. At this time I predict that it will be Duttslist or the Toronto Backpage site.

The following is a list of 25 sites vying for the position of top prostitution ad site in Canada:

Some of these sites are easy to search by telephone number and some are not.

Censorship: You be the Judge

Google Ad-sense sent an automated notice that their machines were going to stop serving ads because I listed the sites that we often search for telephone numbers as explained above.  Of course machines can’t read, but they can find links. Now Google is censoring content because they don’t like to place ads on anything that has links to sites that they don’t like, in this case so-called ‘adult content’.  I can understand not wanting to be involved in promoting pornography or the sex trade, but this is only a machine telling me what to write and there is nobody to talk to and no living person at Google ever read this article.

Criminal Records & Name Changes

I have previously written about Canadian Criminal Record Searches and how some provinces don’t link previous criminal records to a name change. Legally changing one’s name is a Provincial matter, one has to be wary of checks for criminal records.

While the person’s finger prints and photograph will certainly turn-up any serious criminal conviction, a search by the subject’s current name alone may not. Recognition of this has resulted in delays for many people seeking a police certificate for employment.

The Royal Canadian Mounted Police (RCMP) maintains the Canadian Police Information Centre (CPIC) which is Canada’s centralised depository of criminal conviction data.  Currently, only Alberta and British Columbia require people to notify the RCMP when they get legal name changes. There are some exceptions to this process, such as names that are changed as part of getting married. In these cases, if the person has a criminal record, the RCMP will add the new name to the criminal record. No other provinces or territories require people to notify the RCMP when they change their names. In some cases, such as Ontario, applicants for name changes must get criminal record checks, but there is no requirement to notify the RCMP once the name change is completed.

Division of Powers — Name Changes

Name changes appear to fall under Provincial Powers according to The Constitution Act of 1867, S.92(16) which reads, “Generally all Matters of a merely local or private nature in the Province.” This is because this matter impinges upon the recording of Births, Deaths, and Marriages.

Generally, a name change is done through an application under the Province’s or Territory’s Change of Name Act. People who have reached the age of majority in the province or territory where they live (usually 18 or 19) can apply to change their name. Those younger than the required age, can still change their names if they have been married, have a common-law relationship, or have their guardian’s consent.

One must have either been born in the province or territory, or have lived there for a certain period of time (between three months and a year)  before the application was submitted.

Canadian Criminal Record Searches

Reading the following articles about Canadian criminal record searches should give you an understanding of how Canada’s criminal records are stored and searched.

Criminal Check Delays

Ontario Police Check Backlog Frustrates Many

Previously, the criminal database was only checked for a close match to the surname and date of birth of applicants.

If this doesn’t bring up a hit, the new system now checks for matches to the sex and birthdate of the applicant only.

If there’s a match, finger prints have to be sent to the RCMP.

“The reason behind that is because some provinces don’t link previous criminal records to a name change,” said Marc LaPorte, a spokesperson for RCMP Ontario. “It’s a more rigorous check.”

This helps identify those who have changed their name after being pardoned for a sexual offense when checking the pardoned sex offender portion of the Canadian Police Information Centre (CPIC). The delays due to the new policy are country wide on all Vulnerable Sector Checks.

Effective August 4, 2010, The Minister of Public Safety’s new Ministerial Directive Concerning the Release of Criminal Record Information by the Royal Canadian Mounted Police (RCMP) governs the use and disclosure of criminal record information maintained by the RCMP. This new directive replaces the previous ministerial directive, which was in effect since 1987.

The new policy is located at: http://www.cpic-cipc.ca/English/crimrec.cfm.

Fraud Not Important Enough to Prosecute In Ontario

Reading the following article makes me wonder what happened to Canada when the Crown refuses to prosecute Tzvi Erez for a $27 million Dollar Ponzi scheme. Ontario Attorney General Chris Bentley obviously doesn’t understand that incompetence is the worst form of corruption.

Accused Ponzi schemer won’t be prosecuted

According to a Sept. 30 memo written by Tencer’s lawyer, Lou Brzezinski, assistant Crown attorney Donna Gillespie told him the charges were dropped “because the courts were tied up with more serious criminal matters [such as rape and murder].”

Brzezinski, whose client invested more than $1.2 million with Erez, claimed Gillespie said that “court time and availability of judges were insufficient … and as a result, hard choices had to be made.”

The Crown also suggested another reason charges were withdrawn was because the victim should have known better.

Assistant Crown attorney Gillespie echoed that consideration when she appeared before court to have the charges withdrawn.

Good Intentions Gone Bad

The Law Times reports that 50% fail the new Ontario PI Exam

Since April 15, private investigators have been subject to a new basic training and testing requirement. Recent estimates at some agencies put failure rates at about 50 per cent.

Criticisms of the new system include the fact that there’s no approved curriculum for the training component; that those who design the courses don’t get to see the exam beforehand; and that the test is too broad and not necessarily relevant to the work private investigators do.

As well, people have complained that there’s no handbook to help prepare for the test. “There were questions on it that I will never come across in my area of expertise,” one commentator identifying as a private investigator recently wrote on lawtimesnews.com.

It’s obvious, then, that there are flaws. Once again, good intentions at ensuring and raising proficiency standards are having unintended consequences.

We have to ask why the Ontario government is testing for useless knowledge? The simple answer is, because they can.

Read more

Division of Powers – Vital Statistics

Vital Statistics – Birth, Death, and Marriage certificates

These bits of paper define our identity in today’s society.

The Solemnization of Marriage is a provincial matter according to S 92(12) of The Constitution Act of 1867. Birth and Death records are generally held to be a provincial matter under S.92(16) which reads, “Generally all Matters of a merely local or private Nature in the Province.” For the purposes of proper administration, the territories have been granted the power to record vital statistics.

One must be an authorised person to request these records, and most provinces, in most cases, are very careful to ensure that a person requesting such documentation is entitled to receive the document.  The Investigator will require a letter authorising such a search for these records from the person or estate involved.