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Supreme Court of Canada Hands Down Landmark Ruling on Text Message Privacy

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Supreme Court of Canada Hands Down Landmark Ruling on Text Message Privacy

In a Supreme Court of Canada ruling in a criminal case called R. v. Marakah, which was handed down just this past week, the nation’s top Court framed the essential questions in the opening lines:

Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination? Or is the state free, regardless of the circumstances, to access text messages from a recipient’s device without a warrant?

The accused, Nour Marakah, had been charged and convicted of trafficking in handguns.  Among the evidence used against him were certain incriminating text messages that he had sent to an accomplice’s iPhone.  The messages on his own phone (from where those messages to the accomplice were sent) had already been ruled inadmissible, since their use was found to have breached his Charter right to be protected against unreasonable search and seizure.

The Supreme Court of Canada ruled that the text messages that had been intercepted from the accomplice’s phone were private in the circumstances, and also inadmissible on the same Charter-based grounds.

The Court quickly added that outcome was not automatic: different facts may have led to a different result.  Among other things, the matter hinged on whether Marakah had a reasonable expectation that the texts would remain private.

From a general standpoint, the Court discussed the relevant legal analysis to be applied in these cases.  This involved evaluating the “totality of the circumstances” including the elements of whether the sender has control over the messages once they are sent.  Someone who sends texts messages has meaningful control over what they sent, and how and to whom they disclose the information.  For the purposes of the Charter’s s. 8 protections against unreasonable search and seizure, that control is not lost merely because another individual possesses or can access it.  In other words, even though the sender does not have exclusive control over his or her personal information – only shared control – that does not preclude him or her from reasonably expecting that the information will not be subject to state scrutiny.

Returning to Marakah’s specific case, he had an objectively reasonable expectation of privacy of the text messages on the iPhone of his accomplice. He fully expected their conversation to be private, and had repeatedly asked the accomplice to delete the incriminating messages from his iPhone. The “place” of the police search (i.e. the accomplice’s iPhone) was a private electronic space accessible the accomplice, so this factor also heightened Marakah’s legitimate privacy expectations.

In entertaining, but ultimately rejecting, the policy concerns around recognizing the privacy of text messages in some circumstances, the Court added:

There is nothing in the record to suggest that the justice system cannot adapt to the challenges of recognizing that some text message conversations may engage s. 8 of the Charter.

The Court found that there had been a breach of Marakah’s Charter rights in this case, and that admitting the text messages from the accomplice’s iPhone as evidence would bring the administration of justice into disrepute.  Without those texts, he would have been acquitted; to allow the conviction to stand would be a miscarriage of justice.

Although this Supreme Court ruling germinated from a criminal case with Charter implications, it may have eventual repercussions in the civil realm, including Family Law trials.

What are your thoughts on this ruling?  Should text messages be considered private at all times?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

 

[1] 2017 SCC 59 (CanLII).

New Joint Action Plan Announced for Improving Access to Family Law Services in Ontario

New Joint Action Plan Announced for Improving Access to Family Law Services in Ontario

The Law Society of Ontario has just announced its approval-in-principle of a joint action plan that is the culmination of a Family Legal Services Review commissioned last year in conjunction with the Ministry of the Attorney General.  The resulting Report makes 21 recommendations that are aimed at improving access to Family Law legal services, most notably by expanding the role of paralegals. Under the joint action plan being considered, the Law Society commits to the following:

  • To develop a license for licensed paralegals and others with appropriate training, to allow them to offer some Family Law legal services. The licence will support training on the topics of: legal process; completing Family Law forms, investigating certain financial information, Motions to Change, and uncontested divorces.  The Law Society indicates that training will be an intensive and rigorous process, of up to 14 months’ duration, along with testing.
  • To “engage in a robust evaluation of the success of the Family Law legal services license for service providers other than lawyers, and to make any adjustments that are in the public interest.”
  • To consider allowing lawyer candidates (e. articling students) to be given “experiential training” in the licensing process, including how they may support the delivery of Family Law legal services under appropriate supervision.
  • To review the Rules of Professional Conduct governing lawyers and paralegals, to see whether the current rules on the unauthorized practice of law are as clear as possible on the difference between legal information that is legal advice, versus legal information that might be provided by Court staff to unrepresented litigants. The intent is to effect a common-sense change to give Court staff more latitude to help self-represented litigants navigate the Family Law process.
  • To continue to support the expanded use of unbundled services and legal coaching, including offering Continuing Legal Education opportunities, as well as tools that address concerns over legal liability.

The Law Society indicates that it will also continue to assess what additional Family Law legal services (including advocacy in and out of the courtroom) should be made available by providers other than lawyers.   This again requires consideration of the public interest.

It should be noted as background to this newly-announced initiative, that the Law Society has also ramped up its lobbying efforts, in cooperation with the Bar, to encourage the Federal and Provincial governments to accelerate the implementation of Unified Family Courts to all jurisdiction in Ontario.  (Currently, there are only 17 Unified Family Courts are only available to litigants in the province, mostly in the greater Toronto region).

What are your thoughts on this new action plan?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

More on Upcoming Changes to the Ontario Law Relating to Kids and Youth

More on Upcoming Changes to the Ontario Law Relating to Kids and Youth

I reported recently that the Supporting Children, Youth and Families Act, 2017 (CYFSA) was given Royal Assent on June 1, 2017. Although it is not yet officially in force, once proclaimed it will make numerous changes to existing child-focused legislation in Ontario.

Most notably, the CYFSA repeals and replaces the longstanding Child and Family Services Act, and amends 36 other pieces of family- and child-related legislation.  Although the upcoming amendments are numerous and broad-ranging, one of their overriding goals is to focus on government-provided child and youth services, and to put children at the centre of decision-making.   They also aim to increase accountability, responsivity, and accessibility in relation to services and service providers.

Specifically, the new legislation sets out that the purpose of the CYFSA is to promote the best interests, protection and well-being of children. It recognizes that services to children and young persons should be provided in a manner that:

  • Respects regional differences wherever possible, and takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons;
  • Respects a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression; and
  • Respects a child’s or young person’s cultural and linguistic needs.

Next, the CYFSA also expressly recognizes that services to children and young persons and their families should be provided in a manner that builds on the strengths of the families wherever possible. It also gives special recognition to the needs and traditions of Indian and native children and families.

Other key changes include:

  • Increasing the age of protection to include 16- and 17-year-olds. Children of this age may be found to be in need of protection; certain added circumstances apply to this age-group in making that determination.  However, 16- and 17-year-olds may not be brought to a place of safety without their consent.
  • Authorizing children’s aid societies to enter into agreements with 16- and 17-year-olds in need of protection, and to bring applications to court.
  • Strengthening the focus on early intervention, helping prevent children and families from reaching crisis situations at home.
  • Making government-provided services more culturally-appropriate for all children and youth in the child welfare system. This includes ensuring indigenous and Black children and youth receive optimum support.
  • In connection with adoption, changing the matters that must be considered in determining the best interests of the child, in keeping with the nature of the changes that are implemented in other parts of the CYFSA. It also adds a new two-stage process for adoptions from outside Canada.

Finally, the CYFSA also sets out extensive rules for the collection, use and disclosure of personal information by government and service providers, and sets out new rules for obtaining consent and access to personal records, which are driven by privacy considerations.

These changes build upon feedback received by the government through the 2015 review of the Child and Family Services Act (CFSA). Note that the former Child and Family Services Act remains in-force until the new CYFSA is proclaimed in force.

For the full text of the yet-to-be-enacted legislation, see:

Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

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Mother Wins Constitutional Challenge on Child Support for Disabled Adult Child

Mother Wins Constitutional Challenge on Child Support for Disabled Adult Child

The recent decision in a case called Coates v. Watson represents a landmark of constitutional law, with the court finding that section 31 of the Ontario Family Law Act discriminates against the adult disabled children of unmarried parents and is contrary to the Canadian Charter of Rights and Freedoms.

The case involved an unmarried Ontario mother who was responsible for caring for her adult disabled son named Joshua. The biological father had paid some child support, but was looking to have the support payments terminated now that Joshua was an adult.

Joshua suffered from DiGeorge syndrome, which left him with both physical and mental health issues. These in turn prevented him from attending school full-time.

The legal issue arose because section 31 of the provincial Family Law Act (“FLA”) states that every parent has an obligation to provide support, but only if the child is a minor or is in school full-time. The meant that in cases where the disabled child cannot attend school, section 31 actually operates to prevent him or her from falling within the definition of “child” and thus qualifying for child support. When applied to Joshua’s case, the law effectively eliminated the biological father’s obligation to assist in supporting his son.

In contrast, the federal Divorce Act contains no such qualification, and imposes a support obligation on the parents of disabled adult children, regardless of whether the child attends school.

In noting this discrepancy between the federal and provincial legislation, the court ultimately concluded that section 31 of the FLA was unconstitutional, because it discriminates against adult disabled children of unmarried parents on various grounds including parental marital status, and disability. That discrimination is contrary to s. 15 of the Charter, which enshrines the principle that every individual is “equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

If the ruling in Coates v. Watson stands (and is not overturned on appeal), then there is speculation that the FLA might have to be amended by expanding the definition of “child”, or by incorporating the definition found in the federal Divorce Act.

For the full text of the decision, see:

Coates v. Watson, 2017 ONCJ 454 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

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“Gender Expression” Now Protected for Kids by Law

“Gender Expression” Now Protected for Kids by Law

In what is perhaps a controversial move, the Ontario government has recently passed legislation to allow children to be removed from their parents who opposed the child’s expression of “gender identity” or “gender expression”.

The Supporting Children, Youth and Families Act of 2017 received Royal Assent on June 1, 2017. Once passed, it will change or repeal/replace existing legislation and implement new requirements directing service providers and other entities to support a child’s choice of gender identity or gender expression.

These amended provisions are aimed primarily at courts, social workers, and adoption services. It mandates that when providing services or considering the best interests and welfare of a child, these entities must consider “race, ancestry, place of origin, color, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity, and gender expression.”

It also prevents parents from challenging a child’s same-sex orientation, or with identification not with the gender that he or she was born, but rather the opposite one.

This directive gives rise to a corollary assessment as well: Whether a child should be removed from a home where the parents oppose a child’s declaration of his or her homosexuality or choice of “gender”. The principle behind this part of the legislation is that a parent who refuses to recognize a child’s preference in this regard is actually perpetrating abuse; the child’s removal from the home environment and into child protection facilities would prevent further abuse from occurring.

The new law is not without its controversy. Objectors claim that it represents an unwarranted incursion into the rights of parents, particularly those relating to religion, and embodies an “anti-parent” agenda.

What are your thoughts on these new changes?

For the full text of the new legislation, see:

Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

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Proposed Family Law Act Amendments Broaden Support Obligations to Disabled Adults

Proposed Family Law Act Amendments Broaden Support Obligations to Disabled Adults

Under proposed recent amendments to the Family Law Act, parents will be required to support an adult child who has an illness, disability, or other issue that makes them unable to support themselves.

Bill 113, which is a NDP-backed private member’s Bill introduced late March 2017, contains amendments which reiterate that “every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child.” The Bill then adds that this obligation extends to any child who is “unable, by reason of illness, disability or other cause, to obtain the necessaries of life.”

Currently, parents who are tasked with the care of adult children with disabilities are only able to obtain child support orders if they were married, with support being ordered as part of the separation and divorce process under the federal Divorce Act. At the moment, Ontario law does govern the rights and obligations of parents who are unmarried, but fails to specifically address the issue of support for disabled adult children. Bill 113 seeks to fill that gap in the provincial law.

The Bill’s introduction follows upon the recent court application on March 24, 2017 by a Brampton single mother named Robyn Coates, who asked an Ontario judge to rule that the yet-unamended Family Law Act discriminates against her 22-year old developmentally disabled son. The judge decided to reserve judgment, and when the ruling is handed down it will only affect Ms. Coates’ particular scenario.

However, the amendments to the Family Law Act under Bill 113 were introduced shortly after. The Bill is currently at the first-reading stage.

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

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All Parents Are Equal Act, 2016 Now In Force – Surrogacy Arrangements Impacted

All Parents Are Equal Act, 2016 Now In Force – Surrogacy Arrangements Impacted

Several months ago, I wrote a series of pieces including: Ontario Government Introduces Bill to Strengthen the Legal Status of All Parents, New Surrogacy and Parenting Declaration Laws Upcoming in Ontario, and New Proposed Law Clarifies Parentage, Surrogacy Rights, and Rights Arising from Assisted Reproduction about the All Parents Are Equal Act, 2016.

That Act is now in force, effective January 1, 2017 and (among several other things) amends the Ontario Children’s Law Reform Act to change the former practice around surrogacy arrangements. That former practice called for a court to make a declaration – on the parties’ consent – as to the child’s parentage after birth, and required the parties to file a formal court application to obtain it.

Since obtaining the court declaration was the more costly portion of the former multi-stage process for legally recognizing “parent” status in surrogacy arrangements, the elimination of this steps may come as a welcome change.

However, the Act’s more streamlined is not without its detractors. With the elimination of the need for a court declaration in some circumstances, the safeguards have been moved to the front end of the process, before the child is conceived and born. Now, up to four intended parents of a child born to a surrogate will be recognized without a court order if the following conditions are met:

  • The surrogate and the intended parent(s) received independent legal advice and entered into a written pre-conception surrogacy agreement.
  • The surrogate provided written consent to give up her parental status both before conception and seven days after the birth of the child.

(That seven days is a “cooling off” period, to ensure that the written consent by the surrogate is validly given).

Since in routine cases there will no longer be any court oversight of the process, it will be left to the parties themselves, with the help of their lawyers, to ensure that they meet the requirements of the Act, and that when the time comes, the surrogate gives her consent to relinquish the child.

What do you think of these new changes? Are they an improvement?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

UK Tightens Immigration Rules for Foreign Spouses

UK Tightens Immigration Rules for Foreign Spouses

In a controversial decision the Supreme Court of the United Kingdom has recently upheld the legality of immigration rules that imposed requirements on its British citizens to have a certain level of income before they are able to bring their spouses into the country. These contentious “Minimum Income Rules”, which came into force in 2012, had been challenged by four couples who asserted that they breached their basic human right to have a family life.

The rules require that, before being allowed to bring a spouse to live with them from another country outside the European Economic Area, a British citizen (including a recognized refugee) must have a minimum annual income of at least £18,600 (around CDN$30,600). The couples who contested the rules had argued that the income threshold was set too high, particularly since it increased with each additional child that needed to be supported.

This addition of a set income requirement reflects a stark change from the previous rules, which prior to 2012 had required only that the spouses could establish an ability to support themselves without needing to avail themselves of welfare payments from the UK government.

Although the UK Supreme Court’s ruling confirms that the rules did not violate human rights legislation, it also recommends they be amended, since the current incarnation does not adequately account for the best interests of the children, and neglects to consider other sources of income that the spouses might have.

This UK development is in stark contrast to the immigration policy in Canada, where applicants must prove only that they have enough income to provide basic needs for the spouse or his or her dependent children. (Although those who want to sponsor parents or grandparents are subject to specific income-level requirements and a new process for applying starting in 2017).

And by announcement made December 15, 2016, the Canadian Government has indicated that the department of Immigration, Refugees and Citizenship Canada will be speeding up the processing for spousal sponsorship applicants, as part of its commitment to family reunification. Most applications will be processed within a year of a person applying.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Revenge Porn: Not Just a Bad Idea; It’s Also a Crime

Revenge Porn: Not Just a Bad Idea; It’s Also a Crime

A few weeks ago, I reported on the appeal-level decision in the case of “revenge porn” where a woman’s ex-boyfriend had posted explicit photos of her on a pornographic website and showed them to his friends, all without her consent. She sued him for civil damages to compensate for the resulting humiliation.

The existence of this type of case is not unexpected, but it’s not as prevalent as one might think. Despite the widespread use of social media, and the immediacy with which even ill-advised messages can be sent, there are surprisingly few court decisions that involve a person seeking civil damages for an internet-based invasion of privacy, whether through hacking, or by posting without the person’s consent.

Part of the reason might be the impact of the criminal law: In December 2014, the Canadian Criminal Code was amended to add s. 162.1(1). The provision makes it a crime if someone “knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person” knowing that he or she did not give their consent. The term “intimate image” is defined to include a visual recording, including a photographic, film or video recording, “in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity”. On conviction as an indictable offence, the penalty can be up to five years’ imprisonment.

So far, there are only a small number of reported cases in which anyone has been charged with an offence under s. 162.1.

  • In R v. P.S.D., a young man in a volatile, on-again/off-again relationship with a young woman was charged after he took partially-clad images of her without her consent. He also sent the pictures to two friends, with instructions that they should save them, all with the intent to cause her emotional harm. The blurry, poor-quality photos were taken with his cellphone, in a manner that clearly indicated she had not consented, and showed portions of the woman’s bare breasts. The man was given a suspended sentence, after being given 90 days’ enhanced credit for the 60 days he spent in pre-trial custody.
  • In v. Calpito, the male accused, in his early 20s, confessed to having posted seven nude photos of his former girlfriend on Instagram after their romantic relationship had ended.  The photos were viewed by the woman’s large circle of friends, and even by her employer. The woman described the devastating effect of his actions on her life and university studies. The man was sentenced to a conditional discharge with three years’ probation, together with restrictions on his internet use and a significant term of community service.

The enactment of this new criminal offence, with its potentially hefty sentence, has surely had a chilling effect on the need for civil remedies as well. It means that Canadian law is well-poised to thwart the impulses of spurned ex-lovers to wreak revenge on former partners by oversharing intimate images.

For the full text of the decisions, see:

R v. P.S.D., 2016 BCPC 400 (CanLII)

v. Calpito, 2017 ONCJ 129, 2017 CarswellOnt 340

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Should Pacemaker Evidence Be Used to Catch Cheaters?

Should Pacemaker Evidence Be Used to Catch Cheaters?

I have written several times before about some of the more novel uses of the information that can be gleaned from social media, for example the use in Family Law of evidence taken from Facebook. Some of our previous posts include: Facebook as a Source of Evidence In Family Law: Part 1Facebook as a Source of Evidence in Family Law: Part 2; and  Facebook as a Source of Evidence in Family Law: Part 3.

The legal issue behind this kind of information-gathering, is whether collecting information in this manner is unduly intrusive into a person’s privacy.

A U.S. case reported by the American Bar Association that caught my attention recently takes the privacy question it even further: It involved the use of evidence taken from a man’s pacemaker, used to support a charge of criminal fraud and arson against him. It seems the data from his heartbeat-regulating device – which was collected from him by way of a search warrant – did not support his claim that his house had burned down. Evidently the man’s heart-rate on the night in question did not correspond with his description of events, including his scramble to collect his personal belongings and get out of the home. He was ultimately charged with arson and insurance fraud.

As the American Bar Association article pointed out, this Ohio decision is contentious because it can be seen as having “eroded” the privacy rights that an individual has in his or her health information. In Canada, the government’s ability to collect and use private information is strictly governed by the Personal Information Protection and Electronic Documents Act (PIPEDA), and this includes the right and duties in relation to collecting information for the prosecution of crime.

Although the U.S. decision has no sway in Canada, it occurred to me that if it did, the information from personal health devices like a pacemaker might eventually be exploited in Family Law cases as well.  I started to think about the limits of this kind of information, and how it might apply to divorce cases.

For example, it could be called up in support of the adultery-based grounds for divorce under the federal Divorce Act, by bolstering other evidence that a spouse who claimed to have been “working late” on a given evening was – judging by an unusually elevated heartbeat – actually engaged in an extra-marital affair. (Although I guess it might depend on how truly exciting the person’s work is!)

For now, this is the stuff of science fiction; it’s probably a long way off, before these kinds of biometrics are used as evidence in litigation generally, much less in Family Law cases. And they give rise to many privacy concerns that are assiduously safeguarded by Canadian public policy in the form of legislation.

What are your thoughts on whether evidence of this nature should be used?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com