Tin Foil Hat Time in B.C.

tinfoil-hatAs you may have read in various news reports, one David Jonathan Ross is suing the Minister of Public Safety and Solicitor General of British Columbia and the Attorney General of Canada because, he claims, the R.C.M.P.

attended at his residence near Hope, British Columbia. He alleges that he (and possibly others) was under investigation and was subjected to surveillance techniques that included “neurophone, advanced neurophone and subliminal messaging”. He says that, as a consequence, he suffers from headaches, sleeplessness, loss of normal brain function and related consequences.
Ross v. British Columbia (Public Safety), 2009 BCSC 930

Not surprisingly, the defendants applied for an order dismissing the complaint on the basis that, among other things, the action lacked merit and was bound to fail. Surprisingly, the court refused to dismiss the action.

The crunch (i.e. the sound of crinkling tin foil) comes in para. 27 of the judgment:

. . . In the present case, that exercise has a somewhat surreal dimension to it, since the claim of the plaintiff is, to say the least, novel and unconventional. . . I conclude that the evidence adduced through the affidavit of Staff Sergeant Kjemhus is not of such an effect to cause this Court to conclude that the plaintiff’s claim is doomed to fail. I say that because, while the allegation of these particular surveillance techniques seems outlandish and unlikely, the response that the affiant, a detachment commander with no asserted expertise in the matter, does not know of the technology and has no reason to believe it is a technology that the R.C.M.P. uses is not sufficiently definitive to be dispositive of the matter. Intending no disrespect to this witness, it seems entirely likely there are matters of technical investigation mechanisms that the agency uses of which he is unaware. Put another way, his evidence that he is unaware of the technique is not by any means proof positive that it is not used.

Putting aside the logical difficulty of proving a negative of the “there are no black swans” sort, you have to wonder what planet the judge is from that a “neurophone” is possible in his philosophy. I mean, I’m as paranoid as the next survivor of the sixties, but this is to channel Hunter S. Thompson. And to waste time and money. I humbly suggest that judicial notice might well have sufficed here as a basis for sending Mr. Ross packing.

Comments

  1. This judgment might contain its own embedded messages for Crown. Consider the final paragraph:

    “[35] In dealing with the matter, I was somewhat struck by the fact that there was no application to strike the pleading pursuant to Rule 19(24), given the state of the statement of claim. However, that was not a matter that was before this Court and, accordingly, there was no basis upon which I would have a jurisdiction to embark on any such analysis.”

    In other words: “The Plaintiff may be at a severe disadvantage, but Crown is not, and even in crazy claims you need to do your job.” Or perhaps I’m misreading the judge’s vibes. Maybe a neurophone would help.

    I also wonder if hearing this sort of case is more or less expensive than having a functioning health system that includes active and effective mental health outreach.

  2. This reminds me of the electronic evidence cases like In Re Vinhnee (US – 9th circ in bankruptcy) where the judge took it upon himself to examine the technical witness of the plaintiff (American Express) and find the explanation of the information security practices inadequate, and as as a result threw out Amex’s collection suit against its customer, who had not even bothered to show up.

    There are (especially) American sources that say you have to provide a lot of foundation evidence for digital records. The BC case sounds like a mirror image (funhouse mirror image?) of the reasoning of those sources.