Law Times

Feb 25, 2013

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Page 6 February 25, 2013 �� Law Times ��� COMMENT u Editorial obitEr By Glenn Kauth Walking a fine line T he Ontario Court of Appeal walked a fine line in ruling on police authority to search cellphones without a warrant. On the face of it, the facts in R. v. Fearon were troubling. After arresting Kevin Fearon in connection with a robbery investigation, the police started rifling through his phone and continued to do so without a warrant for hours afterwards when they took him to the police station. The search revealed incriminating evidence against him, including photos and text messages. In his appeal, Fearon essentially asked the court to carve out an exception for cellphones to the doctrine of search incident to arrest given the voluminous personal information found on many devices. To the displeasure of some, the appeal court declined to do so. In particular, it found that, depending on the circumstances, searches of cellphones not protected by a password were acceptable. Given the length of time officers ultimately looked through the cellphone without a warrant, there were definitely grounds for concern. In writing for the appeal court last week, Justice Robert Armstrong said as much while discussing the subsequent search at the police station. ���In my view, the proper course for the police was to stop the examination of the contents of the cellphone when they took the appellant to the police station and then proceed to obtain a search warrant,��� he wrote. ���There is no evidence that it would have been impracticable to appear before a justice to obtain a search warrant in the usual manner,��� he added. ���If it was impracticable for an officer to appear before a justice to obtain a search warrant, the police could have proceeded to obtain a telewarrant under s. 487.1 of the Criminal Code.��� Police, then, didn���t get off scot-free when it came to their actions in Fearon. But the appeal court, which ultimately held the initial search to be a cursory one pursuant to the doctrine of search incident to arrest, dismissed Fearon���s appeal given the connection between the robbery investigation and the potential for evidence on the cellphone. The issue, of course, isn���t an easy one. There are certainly valid reasons to assert special protections for cellphones given the amount of information people now keep on their devices. At the same time, there���s no straightforward answer to the question of what constitutes a cursory search of a cellphone. Is looking through photos going too far? Are text messages off limits when it comes to determining whether a cellphone likely contains information relevant to the investigation? In Fearon, the appeal court found the facts weren���t egregious enough to carve out an exception for cellphones. That���s a reasonable conclusion given the law as it stands. As a result, we���ll have to wait for another case for further delineation on the limits to police powers to search cellphones. Alternatively, an appeal to the Supreme Court may provide guidance on these difficult issues. ��� Glenn Kauth JP wrong to jail company director for unpaid wages BY ARTHUR ZEILIKMAN u SPEAKER���S CORNER For Law Times I n a recent decision of the Ontario Court of Justice, a justice of the peace sentenced a director to heavy fines and 90 days behind bars for failure to pay wages. The decision deals with Steven Blondin, a director of six Ontario companies. In 2010, Blondin received 113 orders of the Ministry of Labour from an employment standards officer. These orders demanded that he and the companies pay more than $125,000 in unpaid wages to 61 employees. Over the course of approximately two years, Blondin and the companies refused to comply with all of the orders. Blondin���s dismissive conduct resulted in prosecution, ultimately causing the director and each company to enter a plea of guilty. The proceedings included admissions related to violating the Employment Standards Act and failing to comply with the employment standards officer���s orders. The plea resulted in a fine of $280,000, an order to pay the outstanding wages with a 25-per-cent victim fine surcharge under the Provincial Offences Act, and, most importantly, an imposition of a 90-day imprisonment term for Blondin. Law Times of the same contract would also attract loss but only of a pecuniary kind. And yet over the decades, Canadian society wisely decided to move the resolution of employment disputes to the realm of civil litigation. Having regard to Blondin���s case, it makes little sense to impose penal sanctions only because the employer is traditionally held to be in a position of power vis-a-vis the vulnerable employee when the dispute is, in essence, a contractual one. There is a reason why we have decided to forgo the imposition of punitive measures in commercial and industrial contexts. Further, we should put things in perspective. The amount the director owed in wages was $125,000 spread over 61 employees. That���s roughly $2,000 per person. Of course, the amount recoverable in the Small Claims Court is $25,000 per plaintiff. In short, although the nuances of the decision remain unclear as the only information available is in the form of a brief summary on the Ministry of Labour web site, Blondin���s conduct didn���t warrant the deprivation of his liberty. LT With respect, while Blondin���s conduct was clearly intolerable, the court shouldn���t have imposed incarceration. Instead, monetary damages, whether in the form of judgment in the normal course of a lawsuit or the imposition of a regulatory fine, would have sufficed. We need to remember that it was not too long ago that employment and criminal law used to overlap quite significantly. Under the old Master and Servant Act of 1847 ��� the governing legislation in 19thcentury Ontario dealing with employment relations ��� workers who refused to follow their employer���s directives could actually face criminal prosecution and imprisonment. Appropriately for the time, employers enjoyed a conspicuous contrast in terms of their rights: if a worker���s complaint against the employer was legitimate, the worker would no longer be bound by the terms of the contract and the employer would face only a fine. The imbalance of power was palpable as a worker���s breach of the contract of service could amount to a loss of liberty while an employer���s breach uArthur Zeilikman handles employment, labour, and civil litigation matters at Zeilikman Law. For more on this issue, see page 10. Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON ��� M1T 3V4 Tel: 416-298-5141 ��� Fax: 416-649-7870 ��� www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . Michael McKiernan Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Advertising Sales . . . . . . . . . . . . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . . . . . . . . . . . Sandy Shutt ��2013 Thomson Reuters Canada Ltd. 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