CAN-TECH Newsletter/Bulletin
November 29, 2018/29 novembre 2018

Significant social media outreach can be the basis for procedural fairness in municipal decision-making

Use of technology to seek public input replaces multiple public meetings

In West Nipissing Police Services Board v. Municipality of West Nipissing, the Police Services Board of West Nipissing brought a judicial review application before a three judge panel of the Ontario Divisional Court, seeking to overturn a decision made by the Municipality to enter into an arrangement with the Ontario Provincial Police to take over municipal policing services. In large measure, the Board’s application was based on an alleged failure to live up to its requirements for public consultations leading up to the decision.

The Municipality had been formed by an amalgamation of a number of areas, including Sturgeon Falls, in 1999. Prior to then, Sturgeon Falls had its own police force and the outlying areas were served by the OPP. Around amalgamation, a process was begun to consider the feasibility of having the OPP take over but it was deferred so that the newly-formed Municipality could make that decision later. At the time, a number of public meetings were held discussing amalgamation generally and policing could have been among the topics discussed.

In 2012/2013, a process was developed and followed in anticipation of a decision on policing for the Municipality. The Court describes it:

[9] During the 2012/2013 OPP costing process, a steering committee was struck, comprised of the local Chief of Police, a Board services member, a municipal councillor, municipal staff, a representative of the local police association and a police services advisor. The steering committee met on two or three occasions and provided input to the OPP to assist it in its costing proposal.

[10] In the 2012/2013 process, public meetings were held in three communities within the Municipality, with a total of 278 people attending the meetings. These public meetings were not televised, nor was the Internet or social media used in either the 1998/1999 or 2012/2013 consultation process.

At that time, no decision was made and the municipal police force carried on. In 2016, a new process was begun, led by the municipal council, which was markedly different from the 2012/2013 effort. Instead of a steering committee with multiple public meetings, only one meeting was held but there was significant social media outreach and input was sought through those channels.

[15] A public meeting regarding the OPP proposal was held in Sturgeon Falls on November 22, 2017. The public meeting was promoted throughout the Municipality on posters in municipal offices, libraries and other public locations, as well as ads on the local radio stations. It was also promoted on the Municipality’s website, Facebook page and Twitter feed.

[16] Approximately 90 members of the community attended the public meeting. In addition, the public meeting was broadcast live on the local cable TV, was live streamed online, and was filmed and made available on YouTube.

[17] The OPP costing proposal was presented at the public meeting, as was the financial analysis by the Treasurer that was given to the Municipality. Two hours were set aside for questions from the public, which the OPP and staff answered. Council members were present for this meeting to observe and gain input.

[18] Representatives of the OPP were present at the public meeting along with municipal staff, the Chief of Police, and the Chair of the Police Services Board, as well as the Mayor and members of Council. The role of the Chair of the Board and the Chief of Police was limited to answering questions.

[19] Following the public meeting, the OPP proposal and the Municipality’s financial analysis were posted to the Municipality’s website for the public to review. As well, paper copies of the OPP costing proposal and the Municipality’s financial analysis were distributed to all municipal facilities and libraries for the public’s access.

[20] The Municipality established a dedicated email address, which was posted on the Municipality’s website, to allow further questions to be asked by members of the public. Answers to those questions, from the Municipality staff, were posted online as well. Council was provided with the information regarding the questions asked, along with the answers posted to the website, prior to its consideration of the By-law on December 5, 2017. The record before us indicates that the vast majority of the questions were answered by staff online before that meeting.

The Board argued, in its judicial review application, that they had a legitimate expectation that the previous process would be repeated and that the Municipality had failed in its obligations of procedural fairness. The Court dismissed these arguments and highlighted the technology-enabled means by which individual residents of the Municipality could participate in the new process:

[55] The Board further relies on the fact that in the prior two consultations there were multiple public meetings in different locations. The 1999 process was very different in that it took place in the course of a significant process of consolidating a group of municipalities into one, and it is therefore not really comparable. In 2012/2013 there were three public meetings in different locations rather than one, however this is also a single prior instance rather than a clear, unambiguous and unqualified past practice.

[56] Moreover, the reach of the public consultation cannot be measured solely on the basis of the number of or location of meetings. In the 2016/2017 process, the in-person meeting was supplemented by the use of cable TV and YouTube, making it possible for a wider audience to effectively attend the meeting without needing to attend in person. There was also a significant use of the Internet and social media to make information available and provide a forum for questions and answers from members of the public.

In its conclusions with respect to procedural fairness, the Court again highlighted the use of the internet in providing procedural fairness:

[60] We conclude that the process followed in 2016/2017 was sufficient for this legislative decision. The Municipality made available information about the proposal to the public, both in print and online, gave notice of the public meeting, which was widely advertised including online, held a public meeting at which questions could be asked and answered, broadcast that meeting broadly using cable TV, live streaming and the Internet, had an ongoing online means to ask questions and obtain answers and provided an opportunity for deputations, including from the Board. The Council received the Board’s view from that presentation along with a survey that the police service had commissioned. Bearing in mind all relevant factors, we conclude that there was no breach of procedural fairness in the consultation process.

Interestingly, there was no discussion of whether this outreach would exclude members of the affected population who did not have access to the internet.

Marakah Applied: Yup, You Still Have Privacy in Someone Else’s Phone

Ontario Court of Appeal excludes data seized from phone belonging to confederate of accused

In R. v. Ritchie, the accused had been convicted of a number of serious charges relating to narcotics trafficking in the context of organized crime. As part of the overall investigation police had seized (incident to arrest) a cell phone belonging to Tsekouras, on which they found coded communications between him and Ritchie. Those communications provided most of the basis for two search warrants, of the accused’s credit card account information and his home. As the Court of Appeal noted, aside from the data on Tsekouras’s phone there was very little information that could have supported the warrants. At trial the accused sought quash the warrants and have the evidence excluded but was unsuccessful on both counts, the trial court holding that he had no reasonable expectation of privacy in the contents of someone else’s phone and thus had no standing to make applications under s. 8 of the Charter.

However, these earlier rulings were made prior to the 2017 release of the Supreme Court of Canada’s decision in R. v. Marakah (reported in an earlier issue of this newsletter), in which the Court held that people have a reasonable expectation of privacy in their communications with others even where those communications are seized from the other’s phone. This caused the Crown on Ritchie’s appeal to concede that: he had standing to make the claim; the warrantless search of Tsekouras’s phone had breached Ritchie’s s. 8 rights; and the information from the phone had to be excised from the Informations to Obtain (ITOs) the subsequent warrants. This left, as the only issue to be resolved, whether the data gained from the search of the phone should be excluded under s. 24(2) of the Charter.

As in Marakah, the police had committed a serious breach of Ritchie’s rights under s. 8 by examining conversations between the two men, by way of a warrantless search. In this case the breach was even more serious than the one in Marakah, where the search had been done 2 hours after the phone was seized and the police might have been acting in good faith—here, the phone was searched 6 months after it was seized, and warrants obtained 2 months after that. The Court dismissed a Crown argument that the impact on Ritchie’s privacy was minimal because the data was on a phone belonging to someone else, noting that the Supreme Court had provided, in Marakah, a “complete answer” to this: “….Mr. Marakah had a reasonable expectation that the fact of his electronic conversation with Mr. Winchester, as well as its contents, would remain private. The Charter-infringing actions of police obliterated that expectation. The impact on Mr. Marakah’s Charter-protected interest was not just substantial; it was total.”

While society’s interest in a trial on the merits was substantial, the public interest in a penal system that was “beyond reproach” was the decisive balancing factor. The evidence was ordered excluded.

Global Privacy Regulators Issue Declaration on Ethics and Data Protection in Artificial Intelligence

Regulators strike a permanent Working Group on Ethics and Data Protection in Artificial Intelligence

At the 40th annual International Conference of Data Protection and Privacy Commissioners, held in Brussels in October of this year, the Commissioners adopted a significant declaration regarding privacy and artificial intelligence. The Privacy Commissioner of Canada was a co-sponsor, and issued the following statement:

“Technology must serve humankind, that is all individuals,” Commissioner Therrien says. “It is not an exaggeration to say that the digitization of so much of our lives is reshaping humanity. If we are not careful, it will be reshaped in ways that do not accord with our most fundamental rights and values.”

The Declaration crosses over between privacy, ethics and non-discrimination and includes the following main points:

  1. Artificial intelligence and machine learning technologies should be designed, developed and used in respect of fundamental human rights and in accordance with the fairness principle...
  2. Continued attention and vigilance, as well as accountability, for the potential effects and consequences of, artificial intelligence systems should be ensured...
  3. Artificial intelligence systems transparency and intelligibility should be improved, with the objective of effective implementation...
  4. As part of an overall “ethics by design” approach, artificial intelligence systems should be designed and developed responsibly, by applying the principles of privacy by default and privacy by design...
  5. Empowerment of every individual should be promoted, and the exercise of individuals’ rights should be encouraged, as well as the creation of opportunities for public engagement...
  6. Unlawful biases or discriminations that may result from the use of data in artificial intelligence should be reduced and mitigated...

Along with the Declaration, the Commissioners announced a call for the development of common governance principles on artificial intelligence and struck a permanent working group on Ethics and Data Protection in Artificial Intelligence.

CRTC Releases Guidelines on s. 9 of CASL

…and provides illustrative examples

The CRTC has released Guidelines on the Commission’s approach to section 9 of Canada’s anti-spam legislation (CASL), which provides best practices and guidance for stakeholders to whom s. 9 might apply. Section 9 itself provides: “It is prohibited to aid, induce, procure or cause to be procured the doing of any act contrary to any of sections 6 to 8” (sections 6 to 8 contain prohibitions dealing essentially with the circulation of advertising/spam without recipient consent). The guidelines note that the section could apply (non-exhaustively) to “advertising brokers, electronic marketers, software and application developers, software and application distributors, telecommunications and Internet service providers, payment processing system operators.” Illustration is given to the factors which the CRTC might consider in applying section 9, by way of examples:

Example 1
Company A specializes in online marketing and sells a bundle of services to Company B, which includes a messaging template and a collection of email addresses and mobile phone numbers for the purpose of mass marketing. The messaging template does not include sender identification information or an unsubscribe mechanism, and no attempt has been made to ensure the express or implied consent of the persons whose contact information appears on the list, all of which are required under section 6 of CASL. In this scenario, Company B may be in violation of section 6 of CASL if it uses the messaging template and contact lists provided by Company A to send commercial electronic messages (e.g. email or SMS). Even though Company A is not the sender of the messages, it could be violating section 9 of CASL by providing the tools that were used to violate section 6 of CASL. 

Example 2
Company A offers web hosting services. Its client, Company B, uses Company A’s services to launch a phishing campaign that redirects unsuspecting Canadians to a fake banking website created to obtain their personal data – a violation of section 7 of CASL. Company A was alerted to the malicious activity by a cyber security firm, but took no action to stop it. In addition, there is no statement in its web hosting terms of service requiring clients to be compliant with CASL, nor does it have processes to ensure compliance. Therefore, while it was Company B that launched the phishing campaign, Company A may be responsible pursuant to section 9 of CASL for having “aided” the doing of the section 7 violation.

Example 3
An individual visits an online app store and downloads a video game, which comes bundled with a custom browser toolbar. Not all toolbar functions, such as the pushing of advertisements, are described during the installation process, and consent for the toolbar is sought through a pre-checked box – contrary to the requirements of section 8 of CASL. During an investigation, it is determined that several customers had previously complained to the online app store about the toolbar. Although the video game developer may be the responsible party for a section 8 violation, the online app store may have violated section 9 of CASL for having “aided” the doing of the section 8 violation.

The Guidelines then set out recommendations for managing risks for compliance including a note on strict liability, highlighting that to take advantage of a due diligence defence ongoing management and active oversight must be demonstrated (including monitoring activities of third parties), and providing a non-exhaustive list of reasonable steps that ought to be included in prevention, detection and remediation plans that satisfy the requirements of CASL.

(with a contribution from Daniel Roth)