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Issue link: https://digital.canadianlawyermag.com/i/1161314
www.canadianlawyermag.com 7 "[P]eople can always sue in Ontario's courts to receive the justice they deserve," says Minister Doug Downey's office. "What these changes accomplish is to ensure that the government can make good faith legis- lative, regulatory and policy decisions without fear of being sued by deep-pocketed lawyers, and to ensure that the courts are not evaluating the legislative, regulatory or policy decisions of a government — that is what the ballot box is for," Crognali says. Downey's office says "people can always sue in Ontario's courts to receive the justice they deserve" but the current system enables well-funded lawyers to "constantly" bring "expensive lawsuits over principles of law long settled by the Supreme Court of Canada." "These frivolous lawsuits result in tens of millions of dollars in legal costs for the taxpayer each year. Each dollar spent defending against a baseless lawsuit brought by an expensive lawyer is a dollar that could have gone to services like healthcare or education," says Crognali's statement. Jasminka Kalajdzic, associate professor at the University of Windsor faculty of law and a researcher who worked on the LCO report, says that, when the CLPA received assent, she knew the report could not afford to ignore it. "It was very clear to us that a major impact of the new legislation would be to stall or preclude major class action lawsuits, primarily those involving historical wrongs," she says. Protecting legal data when travelling Q&A Fast fact Acted on a recent case, R. v. Singh, 2019 ONCJ 453, that dealt with the issue of privacy at the U.S.-Canada border. Craig Penney Toronto lawyer Law Times did a poll about wiping data from your phone at the border and nearly 83 per cent of readers said they do not wipe all information off their devices before leaving Canada. More than 17 per cent said they do scrub their phones, laptops or tablets. Presumably, many are lawyers. What do you think of those results? All persons crossing the border must be concerned about border authorities examining their data. For most of us, our phones are our primary communication and info storage device; for some, it's the only such device. If you wanted to learn about someone, and you could access one thing that belonged to her, what would it be — her phone, correct? Lawyers have the added duty to protect client information (and duties to report if the CBSA accesses client data using their customs act powers). For lawyers, this means we must be cautious in what we have in our phones when we cross the border. I know many lawyers have chosen to avoid crossing the border with client information. There is no reason to expose having a client's data stored. You can store it in a secure cloud and access it later if needed. Better safe than sorry, I say. We previously discussed a case you worked on, R. v. Singh, 2019 ONCJ 453. "The evidence establishes that the Charter infringing state conduct in this case is serious, longstanding and systemic," Justice Elaine Deluzio wrote in the decision, which involved a border agent searching a recent graduate's phone for child pornography. Do you think there needs to be more awareness brought to this issue? As a practical matter, the use of border search powers [is] more invasive now because of the amount of data we typically carry on our person. Balanced against this is the need for the border authorities to protect against illegal material entering the country. The exploitation of children through the creation and spread of child pornography is a global problem. Effective searches can even have the benefit of assisting the traveller; for example, where someone seeks to enter Canada with files that are not illegal in the source country but are illegal here. Some fictional images and movies fall into that category. The border authorities are serving both the public interest and the traveller when such material is intercepted; in many such cases, the device is seized and the person is not charged but sometimes deported immediately. With the ongoing proliferation of illegal material, I would expect both law and policy to move in the direction of greater intrusiveness, not less.