Law Times

August 4, 2014

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Criminal decisions on privacy rights could affect civil cases By yamri Taddese Law Times s interest in digital privacy issues grows, the Supreme Court's recent decision on the privacy interests of Internet subscribers could have im- plications for cases outside of crimi- nal law, a Toronto lawyer says. R. v. Spencer, which found there might be a legitimate privacy in- terest in online anonymity, will likely be a factor in civil matters, especially in cases dealing with cy- ber defamation, says Monique Ji- lesen, a partner at Lenczner Slaght Royce Smith Griffin LLP. Spencer dealt with illegal search and seizure in a child pornogra- phy matter. The court established that police need a search warrant to obtain Internet subscribers' in- formation from service providers. "We sometimes try to get simi- lar information in defamation cas- es, for example," says Jilesen. "The Supreme Court of Cana- da decision deals with what if that subscriber information is in fact private," she adds. "Recognizing that anonymity is one conception of informational privacy seems to me to be particu- larly important in the context of Internet usage," Supreme Court Justice Thomas Cromwell wrote in Spencer. The criminal case in Spencer turned on the fact that police didn't have a search warrant, which isn't an issue in civil cases where law- yers are seeking a court order. Jile- sen believes it will have relevance, however. "I still think the civil courts or an intervener or one of the Internet service providers may say, 'Take a look at the Spencer deci- sion and the importance they place on the privacy interests.'" "If you look at the case, the court says the nature of the privacy inter- est doesn't turn on whether it's legal or illegal activity. It says one aspect of privacy is privacy as anonymity, which is an interesting concept." The top court did emphasize, however, that its findings don't es- tablish "a right to anonymity." "In my view, recognizing that there may be a privacy interest in anonymity depending on the cir- cumstances falls short of recogniz- ing any 'right' to anonymity and does not threaten the effectiveness THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS More detail and a wider scope of legal contact information for Ontario than any other source: ȕ0WFS27,000 lawyers listed ȕ0WFS9,000 law firms and corporate offices listed ȕ'BYBOEUFMFQIPOFOVNCFSTFNBJMBEESFTTFTPGȮDFMPDBUJPOTBOEQPTUBMDPEFT Visit or call 1.800.387.5164 for a 30-day no-risk evaluation 1FSGFDUCPVOEȕ1VCMJTIFE%FDFNCFSFBDIZFBSPOTVCTDSJQUJPOȕ0OFUJNFQVSDIBTF- .VMUJQMFDPQZEJTDPVOUTBWBJMBCMF1SJDFTTVCKFDUUPDIBOHFXJUIPVUOPUJDFUPBQQMJDBCMFUBYFTBOETIJQQJOHIBOEMJOH O N TA R I O L AW Y E R' S P H O N E B O O K Untitled-3 1 14-05-20 3:25 PM Women inmates on the rise Early parole changes seen as likely to boost prison numbers By yamri Taddese Law Times he number of women in federal prisons could go up with the abolition of early pa- role provisions by the federal government, according to a University of Toronto criminology professor. The number and proportion of female inmates had been increasing in both provincial and federal prisons even before the parole changes. According to Statis- tics Canada, for example, they made up 12 per cent of admissions to remand, sentenced custody, and other temporary deten- tions in 2008-09. That's up from 10 per cent in 1999-2000. And with the end of the federal accelerated pa- role system, the numbers could go even higher, says Kelly Hannah-Moffat, a pro- fessor and director of the Centre for Criminology and Sociolegal Studies at U of T. "The accelerated parole release had a criteria for eligibility of [the sentence] being your first federal sen- tence and there are higher proportions of women who are incarcerated for the first time federally," she says. Having a history of non-violence, another eligibility requirement under the jettisoned provisions, is anoth- er factor that was particularly relevant in cases involv- ing women offenders, according to Hannah-Moffat. The increase in the number of women in prison has meant increased pressure on both the correctional system and the inmates themselves, she adds. "It means there's less access to services, less access to programming," she says. "And usually when you have people in small spaces, it increases tension and stresses people who are living there — the prisoners and the staff. It makes every daily task more difficult to do." According to Kim Pate, executive director of the Canadian Association of Elizabeth Fry Societies, the upward trend in the women's prison population began as long as 15 to 20 years ago with the opening of new re- gional institutions for women. "The fact that we had six in- stitutions open up across the country meant that we pre- dicted, sadly correctly, that . . . we might see an increase in the number of women who are be- ing given federal sentences or are seeking federal sentences because their lawyers or Crown prosecutors thought there would be more rehabilitative op- portunities in the new prisons," she says. Although overcrowding at prisons affects both men and women, it's "experienced differently" by women, says Han- nah-Moffat. "One of the issues is that we know that there's a large portion of women in custody who have children . . . and women in custody tend to be the primary caregivers of those children," she says, adding there will be "collateral con- sequences" for the children of women who have gone through the correctional system. INVESTOR INTEREST Legal field attractive to entrepreneurs P5 LABOUR PAINS Rare ruling on non-competition clauses P7 FOCUS ON Corporate/Commercial Law P9 There will be 'collateral consequences' for the children of women who have gone through the correctional system, says Kelly Hannah-Moffat. Photo: Robin Kuniski See Privacy, page 4 See Mental, page 4 Monique Jilesen believes R. v. Spencer will have implications for civil matters. PM #40762529 INVESTOR INTEREST Legal field attractive to entrepreneurs TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM $4.00 • Vol. 25, No. 25 August 4, 2014 Follow LAW TIMES on L aw TIMes L aw TIMes A T

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