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Page 12 January 23, 2017 • Law Times www.lawtimesnews.com it is analogous to a sexual as- sault," he stated. After the ruling was issued, the defendant retained counsel and appeared again in Superior Court. In an order issued last September, Justice Dow set aside Stinson's damages award and is- sued a sweeping publication ban. The reasons in Dow's ruling have not been made public, even though an order he issued prom- ised a "redacted copy" would be released. No explanation has been pro- vided for the extent of the pub- lication ban, beyond that of pro- tecting the identity of the plain- tiff. Law Times contacted the Untitled-2 1 2017-01-19 2:30 PM FOCUS Superior Court and at press time it said it was not yet known if a version of Dow's reasons could be made public. Reynolds and two other col- leagues at Torys are now repre- senting the woman and sought to appeal the decision to the Di- visional Court. Kiteley denied the request and found that Dow's conclu- sion that the defendant should have a chance to answer the al- legations on its merits was rea- sonable. "The uniqueness of the case and the prospect for a decision on the merits making a contri- bution to the development of torts in an important area of the law is a compelling reason to conclude that it is a question of general importance that the de- fendant have the opportunity to participate in a trial," wrote Kite- ley in the decision issued Jan. 9. The original decision by Stin- son relied on a 2012 ruling by the Ontario Court of Appeal in Jones v. Tsige, which defined a new privacy tort referred to as "intrusion upon seclusion." The facts in that case in- volved a bank employee looking at the private banking records of another employee. The Court of Appeal stated that "absent egregious conduct," damages for this tort would nor- mally not exceed $20,000. In more serious privacy breaches, though, the damages could be much higher, suggests Milne- Smith. "The Court of Appeal in Jones did not have in mind por- nographic images," he says. While the default judgment ruling of Stinson was set aside on procedural grounds, the legal analysis as it pertains to invasion of privacy is still of value, says Reynolds. "The framework that he used is important. It is part of the pro- gression on how we view these incidents," she says. LT Continued from page 8 Civil tort over online video called precedent-setting Police need tech skills? Continued from page 9 Matthew Milne-Smith says he is not sure the common law is currently very well designed to deal with individual breaches of privacy that are technology based. [RCMP] Commissioner [Bob] Paulson wants, but done within the rule of law," says Fraser. In the area of password- protected or encrypted digital devices, the Canadian Associa- tion of Chiefs of Police has called for a new law to compel suspects to reveal this information so of- ficers can access the devices. Any such measure would likely be unconstitutional be- cause of the Charter right against self-incrimination, sug- gests McPhail. Fraser agrees and says that large U.S. technology companies would likely pull out of the Ca- nadian market if they could not offer encryption features to their customers. The privacy lawyer also be- lieves such a law would be inef- fective, stating that if a suspect had information on his phone that implicated him in a serious crime, he would likely rather be convicted of a lesser offence of not disclosing his password. Ultimately, says Fraser, it is not about broader police pow- ers, it is about law enforcement developing more technological skills. "The training for officers has not kept up," he says. Even a quarter century ago, this was an issue. In Wise, the Supreme Court heard that the tracking beeper did not work well and police were searching a different car when they heard the commu- nications tower fall and visually spotted the suspect driving away in his vehicle. LT Fresh Canadian legal news and analysis every day Get More Online CanadianLawyerMag.com | LawTimesNews.com | LegalFeeds.ca Untitled-5 1 2017-01-17 4:13 PM The uniqueness of the case and the prospect for a decision on the merits making a contribution to the development of torts in an important area of the law is a compelling reason to conclude that it is a question of general importance that the defendant have the opportunity to participate in a trial. Frances Kiteley

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