International Law

Presentation: Little Brother - Surveillance Technology and Privacy Law

Posted on October 07, 2020
I had the pleasure of speaking at the University of New Brunswick Law School's weekly speaker hour, on the topic of non-police use of surveillance technology and how that intersects/collides with Canadian privacy laws. Here are the slides in case it's of wider interest ...

Privacy best practices in a pandemic public health emergency

Posted on October 04, 2020
Since the early days of the COVID-19 pandemic, privacy questions have been in the headlines. International media reported stories from Asia about smartphones being used to enforce quarantine orders. In Ontario, Premier Ford suggested using telecom data to track social isolation compliance and more recently the Quebec police announced that it had arrested a woman in violation of a quarantine order by tracking her down via her cellphone...

Ontario court adopts the "false light publicity" privacy tort

Posted on February 17, 2020
Regular readers of this (irregular) blog will recall the milestone case of Jones v Tsige, in which the Ontario Court of Appeal imported into Canada the US privacy torts. That list includes: 1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs...

Privacy Commissioner again upends the consensus on transfers for processing in Aggregate IQ investigation

Posted on December 11, 2019
You may recall earlier this year when the Canadian Privacy Commissioner completely revised the previous consensus by concluding that a "transfer for processing" was a disclosure that requires consent, along with any cross-border transfer of personal information...

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Presentation: Access to Government Information

Posted on November 23, 2019
On Friday, November 23, 2019, I had the pleasure of presenting on the topic of access to government information with Janet Curry of the Workers Compensation Board at the Canadian Bar Association - Nova Scotia branch annual professional development conference...

Presentation: Surveillance tech and privacy laws

Posted on November 20, 2019
I was honoured to be asked to give a breakfast presentation to the Canadian Security Association Atlantic Chapter on surveillance and security technology and the law. In case it's of broader interest, here's the presentation: You can also grab it as a PDF here...

What a CLOUD Act agreement will look like for Canada

Posted on October 14, 2019
The United States Department of Justice and the United Kingdom Home Office have announced that the two countries have signed a bilateral agreement ?On Access to Electronic Data for the Purpose of Countering Serious Crime?. The Agreement is intended to be a bilateral agreement of the type anticipated under the CLOUD Act...

Another privacy class action dismissed due to lack of compensable damages

Posted on August 22, 2019
Privacy class actions seem to be having a bit of a rough time as of late. ?The need to change a password at a higher frequency cannot give rise to a serious compensable loss claim.? Following a trend that has become reasonably well established in Québec and is expanding across Canada, the province?s Superior Court has refused to certify a privacy class action on the basis that the representative plaintiff did not experience any compensable harm...

Presentation: What?s new in cross-border digital evidence gathering for criminal investigations?

Posted on May 10, 2019
I was invited to present at the High Technology Crime Investigation Association's first annual Canadian Cyber Summit. I spoke about recent issues and trends in cross-border criminal investigations originating in Canada, starting with the current state of affairs and the Mutual Legal Assistance Treaty regime, issues caused by blocking statutes and what the CLOUD Act will mean for Canadian investigators...

My Atlantic Security Conference 2019 Presentation: The New Privacy and Cybersecurity Legal Risk Landscape (or how to play nicely with lawyers)

Posted on April 25, 2019
I was invited back this year to the Atlantic Security Conference as a speaker. It's a great event and shows that Halifax really punches above its weight when it comes to tech and skills. Another great talk from @privacylawyer. Day one of @AtlSecCon going well...

Privacy Commissioner proposes new guidance on crossborder transfers, requiring consent for all outsourcing

Posted on April 20, 2019
In seeking to revise crossborder dataflows, the OPC?s position would require consent for all transfers of personal information for processing The Office of the Privacy Commissioner of Canada (OPC) has initiated a consultation that proposes to completely reverse its previous guidance on crossborder dataflows under the Personal Information Protection and Electronic Documents Act (PIPEDA)...

Ontario court refuses to order accused to unlock his smartphone

Posted on April 01, 2019
Not sure how I missed this one when it came out in January ... The Ontario Court of Justice has refused to order an accused to unlock his smartphone or to provide the crown with the password for the device. In R v Shergill, 2019 ONCJ 54, the Crown made an application for a search warrant for a phone seized from the accused...

Privacy for start-ups and growing businesses

Posted on February 19, 2019
I was invited with my colleague Sarah Anderson Dykema to present on privacy by design for start-ups at Volta Labs. Volta is Eastern Canada's innovation hub, incubating and accelerating start-ups. The turnout was great and the presentation was well received...

Supreme Court of Canada lays down a very nuanced, contextual understanding of "expectation of privacy"

Posted on February 14, 2019
Today the Supreme Court of Canada issued a very important privacy decision in R v Jarvis. I say it?s important for a number of reasons. First, it?s an important decision that strongly defines expectation of privacy for the Canadian Criminal Code offence of voyeurism...

Presentation: Obtaining digital evidence

Posted on December 08, 2018
This week, I was pleased to be asked to be on a panel with Daniela Bassan on digital evidence for the Canadian Bar Association - Nova Scotia Annual Conference. I spoke about the mechanics of trying to gather and preserve digital (mainly online) information, and Daniela spoke about the process of getting court orders to preserve and access information from third parties...

Canadian Privacy Commissioner calls for a new privacy law

Posted on December 05, 2018
Canadian Privacy Commissioner, Daniel Therrien, has today released a letter written to Navdeep Singh Bains, the Minister of Innovation, Science and Economic Development, calling for a new Canadian privacy law. Such a new law must, he said, include the following aspects: Continue to be technology neutral and principles-based, because these features enable the law to endure over time and create a level playing field, but it should mostly be drafted as a rights based statute, meaning a law that confers enforceable rights to individuals, while also allowing for responsible innovation...

Presentation: Privacy 101 for Psychologists

Posted on September 28, 2018
I was invited to present at an professional development event by the Association of Psychologists of Nova Scotia, on the topic of Privacy 101. In case it's of use to others, here's my slide deck:

The value of legal privilege: Your diligent privacy consultant may become your worst enemy

Posted on September 22, 2018
A diligent privacy consultant will do a thorough privacy impact assessment, a threat risk assessment or a gap analysis. They'll take a thorough look at your current practices and benchmark them against not just your competitors but against best practices...

AtlSecCon Presentation: Canada's new data breach notification regime

Posted on April 26, 2018
I had the pleasure of giving a presentation to the Atlantic Security Conference this afternoon on Canada's new data breach notification regime, which is coming into effect on November 1, 2018. It's posted below in case it's of interest to a wider audience...

Presentation: Privacy and privilege at the Canadian border

Posted on March 16, 2018
The Canadian Bar Association's British Columbia Privacy and Access Law Section and the Immigration Section kindly invited me to Vancouver this past week to give a presentation on the topic of privacy and privilege at the border. Much of this was based on my advocacy work with the CBA in presenting on the topic to the Parliamentary Standing Committee on Privacy, Access to Information and Ethics and pro bono work for the Canadian Civil Liberties Association as an amicus...

Privacy Commissioner thinks there's a right to be forgotten in Canada

Posted on January 26, 2018
The Office of the Privacy Commissioner of Canada just released a news release, another notice of consultation and a draft position paper on "online reputation". Online reputation is the nice way of saying "right to be forgotten" or "right to erasure"...

Canadian Appeal Court decides ?Virtual Presence? is enough for production order for user information against non-Canadian company

Posted on January 12, 2018
The British Columbia Court of Appeal has whipped the door open for the greater use of production orders requiring non-Canadian companies to provide user information. Here's the summary I prepared for my firm (also available here): The Legal Reality: Canadian Appeal Court decides ?Virtual Presence? is enough for production order for user information against non-Canadian company in British Columbia (Attorney General) v...

Federal Court of Appeal: Past privacy consent does not prevent new means of handling and distributing personal information

Posted on December 02, 2017
The Federal Court of Appeal released its long-awaited decision in Toronto Real Estate Board v Commissioner of Competition on Friday, December 1, 2017. The decision is a statutory appeal and is the latest chapter in a very long saga in which the Competition Bureau has accused Canada's largest real estate board of acting in an anti-competitive manner to prevent new forms of competition in the real estate market...

Ontario Court of Appeal confirms online harassment conviction where threatening website was ?about? the complainant but not a threat directed "to" the complainant

Posted on November 15, 2017
At a time when the courts and the rest of the justice system are grappling with how traditional Criminal Code offences and online misconduct intersect, the Ontario Court of Appeal has issued an important decision in R v. Sim on how criminal harassment can take place online...

My suggestions to the NS Minister of Justice to facilitate access to justice under the new cyberbullying law

Posted on November 01, 2017
I have expressed some concerns about Nova Scotia's new Intimate Images and Cyber-protection Act, mainly related to barriers to access to the courts by the adoption of a regular procedure for applications in the Supreme Court of Nova Scotia. The new law allows the Minister of Justice to make regulations about the procedures for such applications...

CRTC finds CASL to be constitutional in CompuFinder challenge

Posted on October 20, 2017
On October 19, 2017, the CRTC issued its decision in a constitutional challenge to CASL brought by CompuFinder. You may recall that in 2015, the CRTC levied the largest penalty to date -- $1.1 million -- against CompuFinder. (My previous blog post.) The company challenged the constitutionality of the legislation, primarily on the grounds that it is ultra vires federal jurisdiction (outside of powers granted to the federal parliament under the constitution) and that it violated s...

Tracing users via IP addresses

Posted on March 29, 2011
PC Pro from the UK has an interesting article on the reality of tracing individual users using IP addresses. Check it out: Can you really be traced from your IP address? | Analysis | Features | PC Pro.

Court says there's no tort of invasion of privacy in Ontario

Posted on March 24, 2011
The Ontario Superior Court of Justice just released a decision today in Jones v. Tsige, 2011 ONSC 1475 (PDF), which states, clearly and without ambiguity that there is no free-standing tort of invasion of privacy in Ontario. The facts involve a claim against an employee of a bank who reviewed the plaintiff's confidential banking records on at least 174 occasions...

Ontario Appeal court on employee expectation of privacy on a work-provided laptop

Posted on March 23, 2011
Dan Michaluk, over at slaw.ca, writes about an interesting case from the Ontario Court of Appeal that has an interesting (and now leading) case on an employee's expectation of privacy on a work-provided laptop computer. Here's a portion of the post, which can be found here: Ontario Work Computer Search Case ? Privacy Concerns Real but Employers Still may Govern ? Slaw...

Privacy-related bills to die on the order paper if Canadian election called

Posted on March 23, 2011
With talk of an election heating up in Canada, I thought I'd provide a list of the government bills that will likely die on the order paper if the government is brought down or if the PM wanders over to speak with the Governor General about dissolving parliament: C-29An Act to amend the Personal Information Protection and Electronic Documents Act (Safeguarding Canadians? Personal Information Act)First Reading in the House of Commons (May 25, 2010) C-50An Act to amend the Criminal Code (interception of private communications and related warrants and orders) (Improving Access to Investigative Tools for Serious Crimes Act)First Reading in the House of Commons (October 29, 2010) C-51An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act (Investigative Powers for the 21st Century Act)First Reading in the House of Commons (November 1st, 2010) C-52An Act regulating telecommunications facilities to support investigations (Investigating and Preventing Criminal Electronic Communications Act)First Reading in the House of Commons (November 1st, 2010) Bills C-50, C-51 and C-52 need some major work so I'm fine to see them go back into parliamentary purgatory, but the PIPEDA amendments (C-29) were pretty good and I'd hate to think we're back to the drawing board...

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