Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. R. v. Spencer, 2014 SCC 43

[1] The Internet raises a host of new and challenging questions about privacy. This appeal relates to one of them.

[2] The police identified the Internet Protocol (IP) address of a computer that someone had been using to access and store child pornography through an Internet file-sharing program. They then obtained from the Internet Service Provider (ISP), without prior judicial authorization, the subscriber information associated with that IP address. This led them to the appellant, Mr. Spencer. He had downloaded child pornography into a folder that was accessible to other Internet users using the same file-sharing program. He was charged and convicted at trial of possession of child pornography and acquitted on a charge of making it available.

[3] At trial, Mr. Spencer claimed that the police had conducted an unconstitutional search by obtaining subscriber information matching the IP address and that the evidence obtained as a result should be excluded. He also testified that he did not know that others could have access to the shared folder and argued that he therefore did not knowingly make the material in the folder available to others. The trial judge concluded that there had been no breach of Mr. Spencer’s right to be secure against unreasonable searches and seizures. However, he was of the view that the “making available” offence required some “positive facilitation” of access to the pornography, which Mr. Spencer had not done, and further he believed Mr. Spencer’s evidence that he did not know that others could access his folder so that the fault element (mens rea) of the offence had not been proved. The judge therefore convicted Mr. Spencer of the possession offence, but acquitted him of the making available charge.

2. Evans v. The Bank of Nova Scotia, 2014 ONSC 2135

[1] The plaintiffs seek to certify their action as a class proceeding against the Bank of Nova Scotia (the “Bank”) and Richard Wilson (“Wilson”). The plaintiffs seek to sue the Bank and Wilson for damages, including a breach of their privacy rights through the tort of “intrusion upon seclusion”.

[2] Richard Wilson, an employee of the Bank, has admitted to providing private and confidential information of Bank customers to his girlfriend, who then disseminated the private information to third parties for fraudulent and improper purposes. As a result of the Bank employee’s conduct, a substantial number of the Bank’s customers became victims of identity theft and fraud, which has negatively affected their credit rating.

3. R. v. Anderson, 2014 SCC 41

[1] This appeal raises the following question: Are Crown prosecutors constitutionally required to consider the Aboriginal status of an accused when deciding whether or not to seek a mandatory minimum sentence for impaired driving? The answer, in my view, must be no. There is no principle of fundamental justice that supports the existence of such a constitutional obligation. Absent such an obligation, the prosecutor’s decision is a matter of prosecutorial discretion which is reviewable by the courts only for abuse of process.

[2] The present appeal involves a scheme of escalating, mandatory minimum sentences for impaired driving convictions. These mandatory minimums are set out in s. 255 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Code”). Section 727(1) of the Code states that the mandatory minimums set out in s. 255 are applicable only if the Crown, in advance of any plea, notifies the accused of its intention to seek a greater punishment by reason of previous convictions (the “Notice”) and tenders proof at the sentencing hearing that the Notice was served. It is the Crown’s discretionary decision to tender the Notice at the sentencing hearing that is the subject of the current debate.

The most-consulted French-language decision was Financière Transcapitale inc. c. Fiducie succession Jean-Marc Allaire, 2012 QCCS 5733

[1] Le 31 octobre 2012 le soussigné rendait jugement au mérite dans ce dossier, accueillant les moyens de défense des défendeurs et rejetant la requête introductive d’instance de la demanderesse.

[2] Sauf que dans la défense il y avait une conclusion à l’effet d’ordonner la radiation de l’hypothèque qui avait été publiée au Registre des droits personnels et réels mobiliers le 8 mars 2010.

[3] Or, par inadvertance, le soussigné a omis d’inclure cette conclusion à son jugement, et les défendeurs voudraient que le jugement soit rectifié en conséquence.

[4] De même, une autre erreur s’est glissée, cette fois-là dans les conclusions recherchées par les défendeurs, en ce qu’ils se sont trompés sur le numéro de minute du notaire Gilbert Lord, sous lequel l’hypothèque a été reçue, indiquant malheureusement 7525 dans la défense au lieu de 7575 tel qu’il appert de l’acte de prêt hypothécaire, et ils demandent d’amender leur défense en conséquence.

[5] Le soussigné est d’avis qu’il est dans l’intérêt de la justice de permettre l’amendement et de rectifier ledit jugement :

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

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