Law Times

Law timeS • September 17, 2012 Foreign-ownership restrictions relaxed FOCUS and local telephone service provider that' Continued from page 10 Eastlink, a cable, Internet, tensive mobile network in At- lantic Canada, submitted that it could fi nd no link between the proposed framework and the stated policy objectives of sustaining urban competition and encouraging rural compe- tition. It has challenged Indus- try Canada to demonstrate how a regional player could acquire even one block of spectrum with the priority given to bids on packages of it. Its submission says the proposed framework "allows national providers to se- cure regional licences in which they may have minimal inter- est by virtue of the sheer size of their aggregate package bid. Other regional players like s building an ex- " Quebecor, MTS Allstream, and SaskTel have echoed these com- plaints. Th e companies worry they'll face disadvantages to the point of exclusion. Despite these criticisms, it appears unlikely there will be any changes to the main components of Christian Paradis didn't wait for submissions to close on June 25 before advising that the main principles are set for the auction. John Lawford of the Public the rules. Industry Minister Interest Advocacy Centre specu- lates that the government is try- ing to favour organizations with a national ambition. "It favours groups Mobilicity that will have a more complete bid on more spectrum. Th at may seem unfair to Quebe- cor and the like, but I would say the government is framing a na- tional policy and probably using it as an encouragement to the re- gional groups to form a national network and bid together. like Wind Mobile and The foreign-ownership change the complexion of the auction pro- cess,' says Roger Watkiss. provisions 'will point where increasing com- petition isn't a matter of more players. "Th is is the next step in giving companies like Wind and Mobilicity a shot at doing high- speed data services so they can look like Bell and Rogers." Lawford suggests there's " a design allows for one single new incumbent but suggests there may be an opportunity for the smaller companies to consoli- date their position by virtue of the removal of the foreign- ownership restrictions on play- ers with less than 10 per cent of the national market share. "Th is Watkiss believes the auction trants in the 2008 auction faced signifi cant restrictions from the foreign-ownership rules. "Th ey were more than somewhat dis- tracted by having to structure themselves to satisfy the rules. Th ey put a lot of time, eff ort, and capital into hearings and legal ac- tions into ownership that could have been more eff ectively spent deploying their networks." Th is time around, he predicts it'll be easier to raise funds for a bid. "A foreign company could make a bit of a beachhead into the country and presumably it would be easier to do that using one or more of the existing entrants as a starting point," says Watkiss. Watkiss cautions, however, change is critical. It will change the complexion of the auction process." Watkiss recalls that new en- has to increase competition. You can't see the auction in isolation, especially in the telecom indus- try. view the tower access rules as also being very important. It remains an open question as " He refers to the intent to re- to how much consolidation there will be among the smaller players. "Some of them are currently po- sitioning themselves to have the upper hand in the consolidation rather than being the one being consolidated, that the auction isn't the only factor at work here. "Although spectrum allocation is a very im- portant tool given the increasing demand for wireless services, it is not the only tool the government tional agenda, he points to the incremental increase in demand for mobile data. Industry Cana- da predicts that in the next four years, data traffi c will increase signifi cantly as people adopt multiple devices. "Th e govern- ment has to react to that. It is almost a matter of national com- petitiveness so that Canadians can utilize services equivalent to those off ered in similar coun- tries. Th ey will expect to use wireless wherever they are. Th at' LT In relation to a possible na- " says Watkiss. the challenge." Electronic surveillance evidence up for grabs BY JUDY VAN RHIJN For Law Times surveillance taking place. Not only is the government designing lawful access leg- T islation to strip away legal and constitutional safeguards on obtaining electronic evidence, but the courts are now granting civil plaintiff s access to prosecution materials that previously remained sealed. Mark Katz, a partner in the competition and foreign o date, the Competition Bureau has sparingly used its powers to obtain electronic evidence such as wiretaps and videos, but it appears that in the not- so-distant future, there will be a whole lot more encourages the bureau to use wiretaps more frequently. Unless the court' sider that their illicit conversations could potentially be intercepted and the wiretap transcripts secured by the bu- reau could now be used against them not only in criminal prosecutions but also in civil proceedings for damages." Th e federal government' s ruling is overturned, parties have to con- on hold at the moment, but its reappearance in Parliament in the fall will cause no surprise. "Th ese provisions or provi- sions like them have been reintroduced a number of times in recent years," says Susan Hutton of Stikeman Elliott LLP. "Th e biggest sticking point is that some measures will be s lawful access legislation may be investment review practice at Davies Ward Phillips & Vineberg LLP, believes the changes are aff ecting the whole protective regime around electronic evidence. Th e federal government' to obtain a warrant to access information such as subscriber name, address, telephone number, e-mail address, Internet protocol address, and name of service provider. Th e Com- petition Bureau will be one of the main benefi ciaries of the new enforcement powers. Th e bureau' Inc., the Superior Court of Quebec ordered the Competition Bureau and the director of public prosecutions to turn over copies of wiretap transcripts to plaintiff ' to obtain a warrant to intercept private communications, but designated persons will be able to compel telecommunica- tions service providers to release identifying information upon request. Once prosecutors have the evidence, they can now pass it on. In a decision in late June 2012, Jacques v. Pétroles Irving action related to the fi xing of gasoline prices in certain mar- kets in that province. "Th is is massively important evidence and that is now s counsel in a class going to be made public for civil plaintiff s," says Katz. "Th is is another sobering aspect of the enforcement regime that parties need to seriously take into account when designing their actions, particularly if the new proposed legislation s lawful access legislation will remove the need taken directly by law enforcement without a warrant. Th ere has been a lot of fl ak from privacy advocates and the privacy commissioner. Th ey say there needs to be prior approval by the court and appropriate oversight." Hutton says that while the debate extends beyond the Competition Act, there are particular concerns in this area. "Th ese changes would allow them to compel the pro- s offi cers will still need duction of extensive personal information about people who own various devices. It all comes down to people' phones," she says. "Traditionally, courts distinguish the rights of the individual and the rights of business with business seen as not deserving as much protection. But companies don't use phones. Th e [service providers] will have to pro- vide information about individual users, allowing law en- forcement offi cers to track devices without having to prove that it' provisions of the Competition Act when it comes to e-mail, social networking, and advanced technology. "Bill C-30 will further strengthen the bureau' legislation," says a bureau spokesperson. "We believe that enhancing the Competition Act will en- " Th e bureau sees the legislative eff orts as modernizing s part of a valid investigation." nology-related challenges that can delay evidence-gathering related to the bureau' sure that Canadian businesses and consumers continue to prosper in a competitive and innovative marketplace. CANADIAN LAW LIST 2012 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: • an up-to-date alphabetical listing of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; • contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; • MORE THAN A PHONE BOOK Hardbound • Published February each year • On subscription $149 • L88804-571-26084 • One-time purchase $165 • L88804-571 • ISSN 0084-8573 Prices subject to change without notice,to applicable taxes and shipping & handling. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation www.lawtimesnews.com CLL - 1/4 pg - 5X.indd 1 9/12/12 2:35 PM legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. CANADIAN LAW LIST s ability to overcome the tech- including its new responsibilities under Canada's anti-spam s enforcement of the Competition Act, s cell- dictions. Th e U.S. Department of Justice has had the power to intercept communications without consent since 2006. Since then, antitrust authorities there have had great success with electronic surveillance. Britain' Th ese measures would echo similar eff orts in other juris- can also conduct "intrusive surveillance," which includes wiretaps and videotaping, when authorized by its chairman and the Offi ce of Surveillance Commissioners. Hutton says she understands that law enforcers in gen- eral feel they need surveillance tools that are as sophisticated as those used by criminals. "No one is questioning the need to use updated technology. Th e question is whether they should use it without a warrant. Th e Supreme Court feels that checks and balances are appropriate before privacy rights are invaded. the inclusion of a requirement to obtain a warrant for intru- sive investigation techniques in the 1986 Competition Act. "Th e mere fact that you have to go and justify the request means making sure they have the grounds to ask for it. Th e gathering of this sort of information should be consistent with the provisions regarding wiretaps and search warrants." Th e bureau has so far used the electronic surveillance Hutton refers to Hunter v. Southam Inc., which prompted " powers it does have sparingly. In 2005, it used them to gath- er evidence in a telemarketing fraud case and in 2008 they formed the backbone of a matter involving retail gasoline price-fi xing in Quebec. Katz has seen how compelling this type of evidence can be. "In the last two years, it's fair to say that there have been a fair number of prosecutions coming out of the gasoline case, there is wiretap evidence there. One conclusion that can be drawn is that when it is used, it is quite eff ective in driving settlements and encouraging defendants to plead guilty. In that case, many of the accused are accepting sentences that involve some form of home incarceration." Katz is surprised that this type of evidence isn't coming up " he says. "In a large measure, that is due to the fact that s Offi ce of Fair Trading s PAGE 11 more oſt en. "If the diffi culty is in obtaining permissions and that is removed, expect to see a lot more of it," he says. LT

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