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Page 4 august 4, 2014 • Law Times www.lawtimesnews.com of law enforcement in relation to offences committed on the Inter- net," wrote Cromwell. "In this case, for example, it seems clear that the police had ample information to obtain a production order requiring Shaw to release the subscriber information corresponding to the IP address they had obtained." While rigorous evidence of cyber defamation will likely compel the courts to grant Norwich orders for a third party to hand over information, the implication of the Sp encer ruling is "one more thing to consider" for civil lawyers, Jilesen suggests. Gilbertson Davis LLP partner Lee Akazaki says the civil courts may refer to Sp encer only to emphasize the principle that there may be an ex- pectation of anonymity on the Internet. "It's not directly on point," he says, adding that if judges consider Sp encer in the civil context, it would be "only to express or confirm the societal interest in a particular right. In this case, it would be the expectation of anonymity or the expecta- tion of privacy." In a civil case, the question becomes whether a person has the right to express an opinion online with the expectation of anonym- ity, Akazaki notes. "The court might rely on the Sp encer decision just to support the fact that this is an element of our bundle of rights as citizens that we in Canada have decided to protect. But from a legal analysis, I don't think that the Sp encer decision does much to inf luence the civil con- text," he adds. A recent Superior Court decision that looked at revoking permis- sion for police to obtain subscriber information for a large pool of tele- phone numbers offered further guidance on the privacy issue. In R. v. Rogers Communications Partnership, Peel Regional Police had originally obtained an order that allowed them to collect subscrib- er information regarding all calls routed through 21 cell towers during specified time periods to further a crime investigation. But after Rogers and Telus Communications Co. applied for an order to quash the production order, police sought to revoke it and obtain a limited version of it instead. Although police wanted an ex parte order revoking the broader order, Rogers and Telus won their chance to pres- ent their argument in court even if their application was moot. "The privacy rights of the tens of thousands of cell phone users is of obvious importance," wrote Justice John Sproat on July 16. "Production orders are typically made on an ex par te application so it is unlikely that the issuing justice has detailed information regarding the contractual relationship between the telecommunications provid- er and its customers and, therefore, the customer's reasonable expecta- tion of privacy. Counsel for Rogers-Telus will be able to identify and argue Charter issues that might not otherwise be evident." Jilesen says "there's little doubt" the court will consider Sp encer in the applications under the Charter of Rights and Freedoms it will hear in this case. For Akazaki, both Rogers Communications Partner- ship and Sp encer imply that the courts are treating the issue of pri- vacy very seriously. "At the end of the day, in both cases [criminal and civil], it re- quires lawyers to be more careful. When we say that it would make it difficult to get something, often that's a code for it would make my job more difficult to achieve the interests of my client," he says. "In that regard, yes, the Sp encer decision might make it more dif- ficult in the long run to get a Norwich order or any kind of pre- action disclosure orders." LT NEWS Alternative Legal Career with Practical Law Carswell, a omson Reuters Business, is looking for several talented individuals to join the Practical Law Canada team. Practical Law provides "know how" content to law fi rms and law departments across a range of subject areas. One of the keys to Practical Law is an in-house team of experienced lawyers with excellent writing skills to draft content and help shape the service. 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ThomsonReuters-HR_LT_July21_14.indd 1 14-07-16 2:30 PM Privacy and the courts Continued from page 1 0 100 200 300 400 500 600 700 800 900 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 Federal Statutes Other Criminal Code Property crime Violent crime • Federal statutes • Other Criminal Code • Property crime • Violent crime "There's very limited opportunity to bring the child into custody, particularly if they're a very young child and there are very limited opportunities to visit those children," she says. She notes women often end up at institutions far away from home, something that makes it difficult to main- tain relationships with their children. According to Pate, statistics out of the United States have shown 90 per cent of the children whose mothers go to prison end up in the care of the state. That number is just 10 per cent for children whose fathers leave to serve time. The numbers, she sus- pects, would be comparable to Canada's. A mother-child prison program launched by the federal government in Canada has seen little participation. The program, which allows women in- mates to bring their children into insti- tutions, has stringent eligibility require- ments almost akin to the ones needed for regaining custody of a child through social services, says Pate. "Paradoxically, people who might be excellent parents and excellent mothers, they'll never have access. And those who do have access, it may actually cause them to come to the attention of social services in a way that's completely unwarranted because of the level of assessment." The high prevalence of mental-health issues among women in custody only adds to the problem. According to the Correctional Service Canada, 29 per cent of women offenders in federal custody were identified at admission as presenting mental-health problems, a proportion that has more than doubled since 1996-97. The Office of the Correctional Investigator has also reported that women tend to harm themselves more than men in prison. Despite of these numbers, there's a lack of understanding of mental illness and how it affects women in prison, says Hannah-Moffat. And while men often have an opportunity to go to institutions with specialized psychiatric facilities, women tend not to benefit from such re- sources as there are a limited number of prisons available to them, she says. "Women tend to be a risk to them- selves more than others. The issue of self-injury, for example, it looks different in men and women's institutions," says Hannah-Moffat. And unlike some male inmates who en- joy the support of relatives in the commu- nity, studies show the favour is "not recipro- cated" for women, says Hannah-Moffat. Pate, who's in regular contact with women in prisons, says the support issue is one of the top concerns she hears. In- stead of more programs, she says a look at why women are going to jail in large numbers would be helpful. According to Statistics Canada, 22 per cent of women in provincial prisons were there for violent offences while 23 per cent were in custody for property-related crimes in 2008-09. "We should really examine why im- prisonment is being used so liberally [with women] when in fact their risk to public safety, the need for corrective action or any of the other sentencing principles re- ally could be called into question," says Pate, who notes women as a group are the least likely to reoffend and more likely to reinte- grate safely into the community. "It really is emblematic of women's in- equality in this country that the poorer, more racialized, more disabled [you are], the more likely you are to come under the gaze of the state and more likely to be crimi- nalized and institutionalized," she adds. LT As Canada's penitentiaries begin to overflow, a four-part Law Times series this summer will look at the issue of remand and other trends within the correctional system in Can- ada. Using data from various reports, the se- ries will explore why more people, including women, are ending up in jail even as crime rates go down. Charges relatively fl at as inmate numbers rise A look at the rate of adult females charged by off ence category Mental health a big issue for female inmates Continued from page 1 Off ence rate per 100,000 women Source: Statistics Canada

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