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Law Times • OcTOber 24, 2011 Lawyer troubled by Jones ruling BY MARCY SEGAL For Law Times I rely upon my computer and Black- Berry like I rely upon air, water, and chocolate. My devices store my work product and my personal infor- mation. Th e stored information can be retrieved and, due to modern technol- ogy, even deleted information can be recovered. I value my privacy in my residence as much as I value it in my data de- vices. But last week, the Ontario Court of Appeal released a stunning judg- ment that provided some guidance as to the scope of police powers in rela- tion to a search of a computer's con- tents. Th e central question dealt with how in-depth a search can be. What if police stumble across evidence of an unrelated crime? At fi rst blush, it would appear that the court condoned the inclusion of illegally obtained evidence. However, upon further refl ection, I believe it also provided a caveat to authorities to tread carefully in their examination of our sacred devices. In R. v. Jones, the respondent was acquitted of child pornography charges when Justice Mary Nolan of the Supe- rior Court excluded 57 images and 31 videos on the basis of a s. 8 violation of the Charter of Rights and Freedoms. As part of her judgment, she was criti- cal of erroneous advice given to the police by a seasoned Crown attorney. Further, she found the procedure fol- lowed by the Crown to be part of a larger "systemic problem." Th e case arose as police were inves- tigating an Internet fraud in which it was alleged that a motorcycle for sale on eBay was purchased with a fraudu- lent money order. Police believed the respondent was responsible. Conse- quently, they obtained a warrant with- out a time restriction to search the respondent's home for evidence of the fraudulent purchase. Th e warrant au- thorized the police to seize any com- puter devices, data, and e-mail trans- missions for particular addresses. Th e respondent's computer was seized in the search. While police were conducting a preliminary search for evidence of fraud, they stumbled across child pornography. Since the warrant was specifi c in its scope, police sought clarifi cation from a Crown attorney as to whether they could continue the search without a further warrant, a decision that would later prove instru- mental in the court's determination on appeal. Th e Crown essentially gave the green light to further search and seize evidence of child pornography without the requirement of another warrant. Such advice was erroneous but justi- fi ed at the appeal level. At trial, the judge was most critical of the Crown's conduct, calling it "reckless and cava- lier and symbolic of an institutional failure." Neither police nor the Crown, as per policy, made notes of their com- munication, a fact that prompted criti- cism by the trial judge. Justice Robert Blair, writing for the appeal court, overturned the fi nding and ordered a new trial. He described the central issue to be a question of "whether the search for evidence of child pornography was authorized by the terms of the warrant itself or, if not, whether it was otherwise authorized in law and conducted in a reasonable manner." He then continued to reiterate the balancing act a judge must engage in given that "the primary value under- pinning the s. 8 right is the need to protect an individual's reasonable ex- pectation of privacy in the target of the proposed search against unreasonable intrusion by the state." Th e warrant didn't specify either the types of fi les to be examined, nor was there a time limit to the examina- tion. Such omissions aren't unusual and at times leave the executor, as in this case, uncertain as to how extensive the search can be. Faced with the issue, Blair resolved it in favour of the indi- vidual, although when people fi rst read the decision, they might fi nd otherwise. Blair found that the evidence uncov- ered in the initial search, although not covered by the warrant, was in fact admissible under the common law plain view doctrine. However, the subsequent search didn't fall under common law or s. 489 of the Criminal Code and was an unlawful search. Further, although Blair deter- mined that the breach was "somewhat serious," as per R. v. Morelli, he found all of the evidence to be admissible under s. 24(2) of the Charter partly because there was no bad faith on the part of the authorities and also because the allegations, serious as they were, merited a trial on their merits. As a mother and a citizen, I applaud the state's eff orts to stop child pornog- raphy. But as a lawyer, I question the decision to admit the illegally obtained evidence. Th e warrant authorized a search in relation to a fraud. Blair found no am- biguity in the warrant's scope. Without question, police should have applied for a second warrant in order to search for evidence of child pornography. I suspect that their failure to do so was a common occurrence, an issue Nolan alluded to. What muddied the waters even more was the fact that an experi- enced Crown attorney gave the offi cers the green light to continue searching without a warrant. I understand Nolan's frustration. Th e Crown's erroneous advice caused the police to search beyond what the law had authorized. Th ere are good reasons for specifi c provisions in the code and certain procedures that au- thorities must adhere to before they can invade a citizen's private domain. Shortcuts are not to be condoned, let alone rewarded. I also appreciate Blair's fi nding that the offi cer acted in good faith and, consequently, that the evidence war- ranted inclusion. Th e police were pru- dent to seek advice from the Crown. I suppose the silver lining is that there won't be any ambiguity in the future. Police have to obtain a further warrant when they stumble upon evidence un- related to the initial search. Marcy Segal is a Toronto criminal lawyer with more than 20 years' experience de- fending all criminal charges at the trial and appeals level. She can be reached at 416-782-7999 or marcysegal.com. COMMENT PAGE 7 Gov't disrupts delicate collective bargaining system BY SARA SLINN For Law Times T he recent round of negotiations between Air Canada and the Canadian Union of Public Em- Speaker's Corner ployees over a collective agreement for fl ight attendants has taken some unusual turns over the last few weeks. Th ese negotiations have taken place against the backdrop of signifi cant and controversial government intervention in public- and private-sector bargaining this summer. In June, federal Labour Minister Lisa Raitt ended Canada Post's lockout of its workers with back-to-work legislation that imposed salary terms and introduced a similar bill shortly after a Canadian Auto Workers unit of customer service and check-in staff went on strike. Th e Canadian Union of Postal Workers is now challenging the constitutionality of the government's actions. While CUPE and Air Canada have reached tentative settlements twice, bargaining unit members refused to ratify them both times. Eighty-eight per cent of voting members rejected the fi rst settlement; 65 per cent turned down the one reached in September. As CUPE then set to engage in a legal strike, Raitt threatened to intro- duce back-to-work legislation. How- ever, the minister later eff ectively sus- pended Air Canada fl ight attendants' right to strike by referring two matters to the Canada Industrial Relations Board for determination. Raitt asked the board to determine whether essential services are neces- sary to prevent an immediate and se- rious danger to the safety or health of the public and whether the failure to ratify the two tentative deals recom- mended by CUPE has created condi- tions unfavourable to the settlement of the dispute such that it should impose an agreement or the fl ight attendants' right to strike should be suspended. Th erefore, by fi ling these references, the minister neatly avoided a strike for an uncertain period of time. Shortly thereafter, Air Canada fi led an unfair labour practice complaint against CUPE that apparently alleged that the membership's failure to ratify the tenta- tive settlements is evidence of bad-faith bargaining by CUPE. But last week, the parties agreed to send the matter to bind- ing arbitration. Th is saga off ers a diffi cult lesson to all involved about the voluntary nature of our collective bargaining system and its legitimate consequences. Our collective bargaining system, contained in the federal jurisdiction un- der the Canada Labour Code, establishes a framework within which unions and employers are to freely negotiate terms and conditions of work. Th is dispute and Raitt's actions highlight three essen- tial elements of this system. First, a key characteristic of this volun- tary system is that it's meant to foster freely negotiated contracts and the government has no direct role in the parties' private negotiations. Any intervention by the gov- ernment disrupts the operation of the col- lective bargaining system and may hamper the parties from reaching agreement. Th is issue is a bit more complicat- ed when a public-sector operation is www.lawtimesnews.com involved. However, as the government and many others tend to forget, Air Canada isn't a public entity. Second, free negotiations mean that parties may reasonably not come to agreement. Work stoppages, then, are a legitimate component of this system. While unions and employers must bar- gain in good faith, this doesn't require that the parties actually reach agreement. Where parties don't agree, our system allows each one the option of exerting pressure on the other through a strike or a lockout. Th is pressure may motivate the parties to reach an agreement. Th erefore, both strikes and lockouts are explicit elements of the broader col- lective bargaining system. Th ey serve a key purpose: to help motivate parties to reach a settlement. A work stoppage is a part of the process that doesn't come into play in every bargaining round, but when it does, it's not evidence that the statutory process is broken. However, the federal government has demonstrated that it has no patience for lockouts in the public sector (as with Canada Post) or strikes in the private sec- tor (as with the Air Canada ticket agents). It will quickly override the statutory col- lective bargaining system to simply end the work stoppage and, in some cases, impose contract terms on the parties. If we imagined the government step- ping into other types of private-sector contract negotiations and possibly using legislation to impose the terms, this would be seen as an unacceptable intrusion into a private contracting process. Such interven- tion in bargaining collective contracts is a similarly unacceptable intrusion. Finally, collective bargaining statutes commonly require that union members vote on whether or not to ratify any tentative settlement that their repre- sentatives have reached on their behalf. Th ough not necessary under the federal code, this practice is meant to ensure that unions represent their members in negotiations and prevent them from im- properly imposing an agreement. Th e statutory obligation on parties to act in good faith during bargaining requires the union to reasonably inform members about tentative agreements. Here, if CUPE did so and recommended that its membership ratify the tentative agreement, then it's extremely unlikely that it failed to meet its duty to bargain in good faith. Most of the time, members ratify ten- tative settlements; sometimes they do not. It's unusual for members to reject two consecutive tentative settlements. Th is doesn't necessarily indicate a prob- lem with the statutory system or the union's conduct. Unions and their mem- bers can legitimately disagree, including about important matters such as whether a proposed settlement is satisfactory. Th e ratifi cation process is meant to be a fo- rum for expressing such disagreement. Collective bargaining is important and complicated and sometimes doesn't have quick or easy solutions. For the gov- ernment to step in during the early stages of disputes disrupts this delicate process and breaks the system before it has the chance to fully operate. Sometimes, collective bargaining is messy, protracted, and inconvenient. Sometimes, that's the way it should be. Professor Sara Slinn teaches at Osgoode Hall Law School. Her research interests are in the areas of labour and employment law.