Tag Archive for 'Courts'

New Standard for Privacy on Ontario Work Computers

Published on April 4, 2011 in Canada, Courts, Forensics, News and Privacy. 0 Comments Tags: , , , , .

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

Published on March 11, 2011 in Canada, Courts and Private Investigator. 1 Comment Tags: , , , .

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

Published on March 2, 2011 in Canada, Courts and Social Sites. 0 Comments Tags: , , .

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.”

Fraud Not Important Enough to Prosecute In Ontario

Published on November 19, 2010 in Canada, Courts and Fraud. 0 Comments Tags: , , , , .

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.

Division of Powers – Vital Statistics

Published on October 15, 2010 in Canada, Courts, Private Investigator and Sources. 0 Comments Tags: , , , .

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.

Division of Powers — Divorce Actions

Published on October 11, 2010 in Canada, Courts, Private Investigator and Sources. 2 Comments Tags: , , , , .

Divorce Registry

The Divorce Registry maintained by the Federal government was designed to prevent both spouses from proceeding with separate divorce actions in separate jurisdictions.

The divorce actions recorded in the Registry cover all of  Canada and go back to 1978.

Division of Powers – Criminal Law

Published on October 6, 2010 in Canada, Courts, How to Become a Professional Private Investigator, Legislation, Private Investigator and Sources. 0 Comments Tags: , , , , , , , , .

Under the division of powers, the federal government has exclusive jurisdiction over criminal law and procedure (section 91(27) of the Constition Act of 1867) the provinces have jurisdiction over the administration of justice, including criminal matters (section 92(14)) and penal matters (section 92(15)) regarding any laws made within provincial jurisdiction. Thus Canada has a single Criminal Code but many provincial laws that can result in incarceration or penalty.

Criminal and Civil Courts

This means that the Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts are matters handled by the Province. It also means that the Province handles the Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in  Section 92 of the Constitution Act of 1867.

For the Investigator, this means that the majority of the criminal prosecutions occur in courts administered by the provinces and that most civil actions are issued in provincial courts.

PIPEDA & The PI

Published on September 29, 2010 in Canada, Courts, Legislation, Privacy and Private Investigator. 0 Comments Tags: , , , , , , .

This year, two events indicate the federal privacy commissioner’s attempts to control private investigations in Canada may soon end. Continue reading ‘PIPEDA & The PI’

Eye Witness Misidentification is Common

Published on September 15, 2010 in Courts, How to Become a Professional Private Investigator and Private Investigator. 0 Comments Tags: , , .

Every investigator, both private and public, needs to understand what factors cause misidenification as it occurs far too often.

Reasonable Doubt: Innocence Project Co-Founder Peter Neufeld on Being Wrong

How do most wrongful convictions come about?

The primary cause is mistaken identification. Actually, I wouldn’t call it mistaken identification; I’d call it misidentification, because you often find that there was some sort of misconduct by the police. In a lot of cases, the victim initially wasn’t so sure. And then the police say, “Oh, no, you got the right guy. In fact, we think he’s done two others that we just couldn’t get him for.” Or: “Yup, that’s who we thought it was all along, great call.”

It’s disturbing that misidentifications still play such a large role in wrongful convictions, given that we’ve known about the fallibility of eyewitness testimony for over a century.

In terms of empirical studies, that’s right. And 30 or 40 years ago, the Supreme Court acknowledged that eyewitness identification is problematic and can lead to wrongful convictions. The trouble is, it instructed lower courts to determine the validity of eyewitness testimony based on a lot of factors that are irrelevant, like the certainty of the witness. But the certainty you express [in court] a year and half later has nothing to do with how certain you felt two days after the event when you picked the photograph out of the array or picked the guy out of the lineup. You become more certain over time; that’s just the way the mind works. With the passage of time, your story becomes your reality. You get wedded to your own version.

And the police participate in this. They show the victim the same picture again and again to prepare her for the trial. So at a certain point you’re no longer remembering the event; you’re just remembering this picture that you keep seeing.

Statements

Published on May 27, 2010 in Courts and Private Investigator. 0 Comments Tags: , .

If you ever have to deal with statements given to the police just after a traumatic event, then read this article.

There is a cynical defense attorney saying: “Anything you say will be misquoted and used against you.”…

The impression is that the earlier a statement is made, the more reliable it is. In reality, the earlier a statement is made, the less reliable it is. The effects of stress will confuse the statement and even cause temporary amnesia. Inaccuracies in the initial statement will convince authorities that the survivor is both a liar and a murderer. A lawyer must be immediately engaged to organize the statement.

Convicted by your own computer

Published on February 10, 2010 in Courts, Forensics, Privacy and Private Investigator. 0 Comments Tags: , , , .

Ontario Small Claims Court

Published on February 1, 2010 in Canada and Courts. 1 Comment Tags: , .

Beginning 1 January 2010, the new limit for claims has increased from $10,000 to $25,000. This makes it worth searching for Small Claims Court actions when doing due diligence research. However, the Small Claims Court is often in a building some distance from the Superior Court.

Bungled Criminal Background Investigation

Published on November 6, 2009 in Canada, Courts, News and Private Investigator. 1 Comment Tags: , , , , .

Bungled Canadian Criminal Background Check

The Courthouse News Service  reports on a bungled background investigation:

CHICAGO (CN) – An investigation agency claims it was ruined by a firm that did a slipshod background check on “reality” TV star Ryan Jenkins, who allegedly murdered his wife, dismembered her body and then killed himself. Collective Intelligence says it was hired to screen contestants for the VH1 show “Megan Wants a Millionaire,” but could not check Jenkins’ background in Canada, so it hired defendant Straightline International to do it.

Collective says Straightline told it Jenkins had no criminal record, though in fact he had a conviction for domestic assault on a girlfriend, according to the complaint in Cook County Court.

In August, Jenkins killed his wife, model Jasmine Fiore, dismembered her body, then fled to Canada and killed himself in a hotel, according to the complaint.
VH1 canceled the show, as well as “I Love Money 3,” on which Jenkins also appeared, to distance itself from media scrutiny, the complaint states.

Collective claims that Viacom, which owns VH1, CBS and MTV, ended its relationship with Collective over the mistake.

Collective says Straightline did not request a background check on Jenkins from the Royal Canadian Mounted Police, as expected, but instead got its erroneous information from a court clerk in Alberta.

Collective claims Straightline will not answer or return phone calls and will not provide it with more information about the background check it did on Jenkins.

Collective claims it has more than 90 clients in the entertainment industry and now its reputation is tarnished. It says that Viacom, ABC and NBC have since rejected it as a screener for their shows.

Collective seeks damages for breach of contract, unjust enrichment, negligence, fraud, and tortious interference.

It is represented by Louis Chronowski with Seyfarth Shaw.

In the full copy of the Complaint you will notice a document (Exhibit E starting on page 22) from the John Howard Society dated 2000 titled Understanding Criminal Records. A link to this document appears on the web site of  Straightline International to this day.

Canadian Criminal Background Checks

Background checks for criminal activity are often done for several reasons:

  • Job Applications
  • Security Clearance
  • Emigration

For example, many truck companies complete checks to ensure their trucks will not be seized at the border because the driver has a criminal record. The Access to Information Act permits an individual to apply for a copy of his or her criminal record. This may be done in one of two ways.

The first is done by providing a certified copy of the person’s fingerprints. The report will show all the particulars, including the disposition and whether or not there was an acquittal or dismissal. If the offence was committed abroad, there will be no record. Also, if prints were taken at the time of the offence and not sent to Ottawa, there will be no record.

Conditional and Absolute Discharges

The CPIC system includes Conditional and Absolute Discharges prior to July 1992. However, after July 1992 time limits were placed on Conditional Discharges of 3 years and Absolute Discharges of 1 year. After these periods they are removed from the system.

Police Certificate

The second method of acquiring one’s criminal record is not as reliable. The applicant may request a copy of his record based upon a computer inquiry using his name and date of birth. Of course this may not disclose offences where the accused’s name is different from the one provided. The report will only include offences for the exact surname and the first four characters of the given name. This method is called a Police Certificate.

The Applicant must appear in person with two of the following forms of identification: passport, citizenship certificate, birth certificate, or driver’s licence. This is required under either the federal Privacy Act or the Access to Information Act or both.

If no record is found a certificate is issued. If a record is found for the applicant, or a very similar name or date of birth and name, fingerprints will be requested to determine if the applicant is the same person recorded in CPIC.

Liability

If you are an employer doing a criminal record check you must consider name of the organisation providing the Police Certificate. Is is just a letter from a screening company or is an official document from a police agency? If the certificate contains errors, then you are in a much better position if it is a police service that made the mistake. If it is a screening company, then you have to question whether they did the search at all or used something other than CPIC.

Court Case-management Systems

While the Criminal Code of Canada is federal legislation, the administration of the courts is a provincial responsibility. Consequently, each province maintains a case-management system. It appears from the complaint that Straightline only checked the Alberta case-management system. Of course this system is useful to the Investigator, but it is for case-management, not a source of criminal record information for the entire country. Also, such systems have schedules for the removal of records no longer deemed necessary for case-management purposes. Furthermore, the court clerk is not liable in any way should he or she fail to be diligent in conducting the search, even if you can identify the clerk when the error is discovered.

Unprofessional PI

Published on October 23, 2009 in Courts and Private Investigator. 0 Comments Tags: , .

A San Francisco Private Investigator working for a defense attorney crossed the line by leaving messages on a witness’s phone telling him that if he went to court that he would be arrested.  This inept PI compounded his outrageous behavior by leaving the recorded messages for posterity.

At least the police and prosecutors who do this type of thing, do it more professionally and don’t leave behind recordings.

Fake DNA

Published on August 18, 2009 in Courts, Forensic Science, Forensics and News. 3 Comments Tags: , , , .

I have  always been skeptical of DNA evidence being the holy grail in criminal cases. Now we find that DNA evidence can be faked.