CAN-TECH Newsletter/Bulletin
February 7, 2019/7 février 2019

Yes, Virginia, A Smart Phone is a “Hand-held Electronic Device”

Driver acquittal for provincial distracted driving offence overturned on appeal

In R. v. Ahmed Justice John Henderson of the Alberta Court of Queen’s Bench sat as a court of appeal over a decision of the Traffic Commissioner, who had acquitted the accused of a distracted driving offence under the Alberta Traffic Safety Act. The accused had been observed steering his moving vehicle with his left hand while holding a smart phone in his right, and intermittently looking at it. The police charged him under s. 115.1(1)(b) of the Act, which prohibits a motorist from driving while at the same time holding, viewing, or manipulating “a hand-held electronic device or a wireless electronic device.” However, the Traffic Commissioner held that this conduct would have amounted to an offence if the accused had been charged under s. 115.1(1)(a), which prohibits driving while holding or manipulating a “cellular telephone, radio communication device or other communication device ....” In the Commissioner’s view, a smart phone could properly be included under the definition of “hand-held electronic device or a wireless electronic device” since smart phones were separately provided for under s. 115.1(1)(a), and thus acquitted him. The Crown appealed.

In a decision resting entirely on statutory interpretation (and as readers of this newsletter will recall, most cases on distracted driving offences do so), Justice Henderson overturned the ruling of the Traffic Commissioner and entered a conviction. Noting that the two sections in question were part of a set of distracted driving offences that had been inserted into the Act, he began by noting that in the grammatical and ordinary sense of the words, smart phones fell under both sections:

[18]           Cell phones and smart phones are now very widely used throughout Canada and the developed world. I take judicial notice of the fact that these devices are intended to be hand- held. I take judicial notice that the devices are powered by battery and are thus electronic. I take judicial notice that the devices operate wirelessly.

[19]           There can be no reasonable doubt that a cell phone is both a hand-held electronic device and a wireless electronic device.

[20]           There can be no reasonable doubt that a smart phone is both a hand-held electronic device and a wireless electronic device.

Next Justice Henderson examined the context and scheme of the legislation. The Traffic Commissioner had been convinced that because ss. 115.1(1)(a) and (b) were separated by the word “or”, two separate offences were in fact created. However, use of the disjunctive “or” did not necessarily separate the two and in context did not indicate an intention to except smart phones from being treated as wireless/handheld devices. There was, in fact, a fair amount of overlap between the various provisions in the Act which dealt with distracted driving, but this did not create an interpretive issue:

[30]           The fact that there is overlap among the various “distracted driving” provisions is not of consequence when interpreting the provision of a statute.  It is presumed that the provisions of legislation are meant to work together logically as parts of a functioning whole. The parts are presumed to form a rational, internally consistent framework; because the framework has purpose, the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal:  Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis Canada, 2014), at para 11; R v LTH2008 SCC 49 (CanLII) at para 47.

The court next turned to the argument that certain defences under the Act were available for the (a) offence (cellular phones) but not the (b) offence (wireless devices). The Commissioner had reasoned that smart phones must therefore be excluded from the scope of the (b) offence. Justice Henderson noted that the expressio unius principle of statutory interpretation supported this conclusion, but felt that in the overall context it could not bear the weight of the obvious legislative intent behind the distracted driving provisions:

[39]           The concerns raised by the learned Traffic Commissioner are legitimate.  The Legislature cannot have intended that the defences for legitimate cell phone use, as provided by s 115.1(3), should be dependent upon which of several distracted driving provisions the charge is advanced under. The charging section is often made at the discretion of a police officer without any regard to the consequences which may flow from it. For this reason, the decision on the charging section may be completely arbitrary. The Legislature cannot have intended that the legitimacy of defences would be based upon arbitrary decisions of a police officer.

[40]           However, while the concerns are legitimate, the solution is more complex. One potential solution is that s 115.1(1)(b) should be interpreted as excluding cell phones and that any cell phone charges must be advanced under s 115.1(1)(a). That solution has its own problems because it requires that the Court infer words into the subsection which are simply not there. This solution would also not address potential cell phone charges under s 115.2 or other subsections.

[41]           Ultimately the concerns with the s 115.1(3) defences arise because of inelegant drafting of the legislative provisions. The real solution is for the Legislature to respond with amendments to address the concerns.

Finally Justice Henderson explored the Hansard records surrounding the introduction of the distracted driving provisions and held that they were intended to be comprehensive, practical and enforceable. He concluded:

[49]           The terms “handheld electronic device” and “wireless electronic device” are broad and were intended to be expansive.  If the Legislature had intended to exclude cell phones or smart phones from the scope of s 115.1(1)(b), then it could have employed clear wording to achieve this result.  It did not do so.

[50]           I conclude that the intention of the legislature and the purpose of the legislation would be defeated if cell phones or smart phones were excluded from the definition of the terms “handheld electronic device” or “wireless electronic device” in s 115.1(1)(b).

Nine Hundred Dollar legal research charge disallowed on costs motion

Opposing counsel objected as cases are available for free online; Judge noted the case required only “basic legal knowledge”

In Cass v 1410088 Ontario Inc., Justice Whitten of the Ontario Superior Court, on a costs motion, disallowed a $900.00 charge for “legal research”. The plaintiff disputed a number of elements of the cost award, including the fee for legal research “for case precedents which are available for free through CanLII or publically accessible websites?”

The Court agreed, noting that the case was not particularly complicated and that there would be a very limited need for research in the first place:

[32]      $900.00 for legal research is problematic.  One assumes that counsel graduated with the basic legal knowledge we all possess.  This matter was unlikely his first blush with the world of “occupier’s liability”, and specifically the liability of landlords.  Counsel no doubt was familiar with the focus on the degree or control and access exercised by the landlord on the subject area.  So given all the base experience and knowledge, the need for “research” by some anonymous identity is questionable.

What might have been said to be “research” was simply preparation of the factum, and that time would have been reduced if the lawyer had used “artificial intelligence sources.”

[34]      All in all, whatever this “research” was would be well within the preparation for the motion.  There was no need for outsider or third party research.  If artificial intelligence sources were employed, no doubt counsel’s preparation time would have been significantly reduced

Happy New Year! The Bar is raised on obtaining consent under Canadian federal privacy law

Privacy Commissioner issues guidance on their understanding of meaningful consent, which they’ll begin to implement and enforce in 2019

The Office of the Privacy Commissioner of Canada (the “OPC”) has released “Guidelines for obtaining meaningful consent,” which it says it will begin to enforce as of January 1, 2019. This follows a round of consultations carried out by the OPC beginning in 2016.

The Personal Information Protection and Electronic Documents Act (“PIPEDA”) is principles-based and has a lot of flexibly in its application. Consent can be implied or express, depending on a range of factors. However, recent amendments to the Act have added to the requirements for obtaining consent and what is sufficient:

6.1 For the purposes of clause 4.3 of Schedule 1, the consent of an individual is only valid if it is reasonable to expect that an individual to whom the organization’s activities are directed would understand the nature, purpose and consequences of the collection, use or disclosure of the personal information to which they are consenting.

The OPC Guidelines focus on 7 principles:

  1. Emphasize Key Elements: what personal information is being collected, with which parties personal information is being shared, for what purposes personal information is collected, used or disclosed, and the risk of harm or other consequences.
  2. Allow individuals to control the level of detail they get and when (e.g. layering documents, being able to return to the policy)
  3. Provide individuals with clear options to say ‘yes’ or ‘no’
  4. Be innovative and creative: consider using “just in time” notices (offering an explanation and asking for consent at the time an action is to be taken, rather than as a blanket upon first engagement with the service), interactive tools, customized mobile interfaces
  5. Consider the consumer’s perspective
  6. Make consent a dynamic and ongoing process (e.g. privacy check-ups)
  7. Be accountable – stand ready to demonstrate compliance

The OPC guidelines also say that there children are involved organizations must take precautions to ensure that minors providing consent have the capacity to do so, and that individuals lacking that capacity are supported by the consent of a parent or guardian. The OPC is of the view that children under 13 lack the capacity to consent.

You Can’t Take That (Internet) Away From Me

US Second Circuit Court of Appeals finds total internet ban as part of supervised release conditions “excessive” and unconstitutional

In United States v. Eaglin, Eaglin was a convicted sex offender who had been convicted several times for breaching conditions attached to his release, primarily those relating to registering as a sex offender when he relocated. Because he had, in the past, used internet-enabled devices to look for sexual partners and view pornography, the prosecution viewed these as risk factors and had convinced the District Court to impose a total ban on Eaglin using the internet or viewing legal adult pornography. Eaglin successfully appealed these conditions, the Court of Appeal beginning the substance of its reasons by describing them as “unusual and severe.” It noted that the US Supreme Court had recently “forcefully identified” internet access as a constitutional right, on the basis that deprivation of internet access prevented legitimate exercise of freedom of expression rights. The total ban proposed was obviously excessive since it prevented him from using email, blogging, keeping track of the events of the day, or looking for work—the latter not interacting well with the accompanying condition that he remain employed. The Court remarked:

Today, as we observed above, access to the Internet is essential to reintegrating supervisees into everyday life, as it provides avenues for seeking employment, banking, accessing government resources, reading about current events and educating oneself.

Nor was the ban logically connected to his relevant convictions, which were for failure to register as a sex offender; none of his previous crimes had involved internet use. Even monitoring of internet usage would be more tailored to the circumstances of the case and less restrictive than the total ban. Similar findings were made regarding the ban on pornography. The Court concluded:

…the special conditions of supervised release banning access to the Internet and to adult pornography are substantively unreasonable in the circumstances presented here because neither is reasonably related to the relevant sentencing factors and both involve a greater deprivation of liberty than is reasonably necessary to implement the statutory purposes of sentencing.