This paper summarizes selected developments in Internet law that occurred during 2007. As with past years, this year was marked by several important developments in Canadian Internet law. Internet law is a vast and rapidly developing area. In a brief update such as this one, it is impossible to present more than an overview of significant developments in several representative areas. Reference to current legislation, regulatory policies and guidelines, and case law is essential for anyone addressing these issues in practice
B. Intellectual Property and the Internet
a. EMALL.CA Inc. v. Cheap Tickets and Travel Inc. – Domain Name Trademark Expugnement
In EMALL.CA Inc. v. Cheap Tickets and Travel Inc., 2007 FC 243, the Federal Court ordered the registrations of the trademarks CHEAP TICKETS and CHEAP TICKETS AND TRAVEL & DESIGN struck from the Trade-marks Register on the basis that they are “clearly descriptive”. This decision is consistent with the decision in Cheaptickets and Travel v. Emall.ca Inc. (January 31, 2003), pursuant to the Canadian Internet Registration Authority Domain Name Dispute Resolution Policy, where the panel held that Cheap Tickets and Travel Inc. had not proven that it had rights in the CHEAP TICKETS mark prior to EMALL.CA Inc’s registration of the <cheaptickets.ca> domain name.
b. Candrug Health Solutions Inc. and Pharmawest Pharmacy Ltd. v. Thorkelson – Domain Name Trademark Expungement
In Candrug Health Solutions Inc. and Pharmawest Pharmacy Ltd. v. Thorkelson, 2007 FC 411, the Federal Court ordered the registrations of the trademarks CANADA DRUGS and CANADADRUGS.COM struck from the Trade-marks Register on the basis that they are “clearly descriptive” and “deceptively misdescriptive”, and that they had not acquired distinctiveness through use prior to the date on which the applications for their registration were filed. The Court noted that the trademark applications were filed only a few months after Thorkelson began using the marks on his pharmacy websites, and that evidence of extensive advertising and website traffic after the dates on which the trademark applications were filed was not relevant. The Court followed the reasoning in ITV Technologies Inc. v. WIC Television Ltd., holding that the evidence of historical website pages obtained from the Way Back Machine website (www.archive.org) is generally reliable and therefore admissible as an exception to the hearsay rule, but the Court also held that no weight could be given to that evidence because there was no evidence that Canadian consumers had visited those websites.
c. Pandi and others v. Fieldofwebs.com Ltd. and others – Misleading Metatags
In Pandi and others v. Fieldofwebs.com Ltd. and others, 2007 CanLII 27028, the Ontario Superior Court of Justice refused to issue an interlocutory injunction restraining the defendants from carrying on an Internet-based retail pyjama business in competition with the plaintiffs’ business. The Court rejected the plaintiffs’ argument that the defendants owed fiduciary duties to the plaintiffs because they had hosted the plaintiffs’ website and email service, reasoning that software developers and website hosts are not traditionally recognized as fiduciaries and do not exercise discretionary power that is the basis for a fiduciary relationship. The Court noted that it would have issued an injunction restraining the defendants from using the plaintiffs’ “Jumpin Jammerz” trade name as a metatag for the defendants’ website, on the basis that the metatags were intended to mislead Internet users into accessing the defendants’ website, but that an order was not necessary because the defendants had already removed the objectionable metatags.
2. The Canadian Internet Registration Authority Dispute Resolution Policy
Certain disputes involving alleged bad faith registration of .ca domain names can be resolved by arbitration pursuant to the Domain Name Dispute Resolution Policy (the “CDRP”) mandated by the Canadian Internet Registration Authority (“CIRA”). The CDRP’s mandatory administrative dispute resolution process is binding on .ca domain name registrants because it is incorporated by reference into .ca domain name registration agreements. The CDRP is modelled on the Uniform Domain Name Dispute Resolution Policy (the “UDRP”) mandated by the Internet Corporation for Assigned Names and Numbers and applicable to .com, .org, .net and other domain names. However, the CDRP contains certain provisions that are distinctly Canadian and are designed to improve upon the UDRP in light of its interpretation and practical application.
A complainant must satisfy the CIRA Canadian presence requirements for registrants in respect of the domain name that is the subject of the proceeding or be the owner of the trademark registered in the Canadian Intellectual Property Office that is the basis of the complaint. A complainant must prove: (i) the disputed domain name is confusingly similar to a mark in which the complainant had rights prior to the date of registration of the domain name and continues to have such rights; (ii) the registrant has no legitimate interest in the domain name; and (iii) the registrant registered the domain name in bad faith. Unlike the UDRP, which provides a nonexhaustive list of indicia regarding these elements, the CDRP provides detailed and exhaustive definitions of each required element.
b. CDRP Decisions
There were 17 CDRP decisions during 2007. A complete list is available at www.cira.ca.
Complaints continue to be upheld much more frequently than they are dismissed. During 2007, 15 orders were made requiring that domain names be transferred to complainants, while only two orders were made dismissing complaints.
The 2007 CDRP decisions are notable in two respects:
(i) There continues to be some uncertainty regarding the test for “confusingly similar” domain names under CDRP paragraph 3.4. In 2006, panels were relatively consistent in their adoption of a test of resemblance based upon first impression and imperfect recollection, rather than a test of source confusion as applied in cases of trademark infringement under the Canadian Trade-marks Act or passing off at Canadian common law (see Canadian Thermos Products Inc. v. Fagundes (Dispute #49, January 2006). While most cases in 2007 appeared to adopt the resemblance test (see News Holdings Limited v. Salvalaggio, Dispute #85, November 2007; GoDaddy.com Inc. v. Ludwig, Dispute #77, April 2007; Yellow Pages Group Co. v. Coolfred Co., Dispute #76, March 2007; Trailwest Online Inc. v. Talltech Systems Inc., Dispute #73, February 2007; Craigslist Inc. v. Cox, Dispute #72, January 2007), there continued to be cases in which a source confusion test was expressly applied (see The Hartz Mountain Corporation v. Harwin, Dispute # 76, June 2007; Musician’s Friend Inc. v. Piperni, Dispute #75, February 2007).
(ii) Panels appear to be requiring more cogent and sworn evidence from the parties, especially with respect to dispositive questions such as those relating to the legal ownership of the mark in which a complainant alleges it has rights (see Bowring & Co. Inc. v. Maddeux, Dispute #81, August 2007; The Regional Municipality of Niagara v. Vail, Dispute #84, November 2007; Westinghouse Electric Corporation v. Mullen, Dispute #83, November 2007).
a. Tariff for Reproduction of Musical Works by Online Music Services
On March 16, 2007, the Copyright Board of Canada issued a decision regarding the tariff of royalties to be collected by the Canadian Musical Reproduction Rights Agency and others for the reproduction of musical works by online music services. The Board established the tariff rates for permanent downloads (8.8%), limited downloads (5.9%) and on-demand stream (4.6%), which are effective retroactively from January 2005. Of note, the tariff does not include any requirements for the use of digital rights management technologies (DRM) to restrict the use of the music downloads.
b. Tariff 22 – Communication of Musical Works Over the Internet
On October 18, 2007, the Copyright Board of Canada issued a decision establishing the tariff rates for Tariff 22, the tariff of royalties to be collected by the Society of Authors, Composers and Music Publishers of Canada for the communication of musical works over the Internet as follows: permanent downloads - 3.4%, limited downloads - 6.3%, and on-demand streaming - 7.6%. The rates are effective retroactively from January 1996.
In its decision, the Board made a number of potentially significant legal determinations, as follows: (i) The transmission of a download over the Internet constitutes a communication of the downloaded work when it is received, even though work is not used or heard at the time of the transmission, and whether or not the download is ever heard or used. (ii) One or more transmissions of the same work, over the Internet, by fax or otherwise, to one or more members of the public each constitute a communication to the public, even though the communications are not simultaneous or near simultaneous. (iii) The offering of downloads of music samples or previews is protected by the statutory defence of fair dealing for the purpose of research, because the purpose of the downloads is to enable potential purchasers to determine whether or not to purchase the songs. (iv) Music download services that use a server located outside Canada may be subject to the tariff, depending upon whether they have a real and substantial connection with Canada. (v) The Internet distribution of game software that includes embedded music constitutes the communication of the embedded musical works, and is subject to the tariff.
a. Dell Computer Corporation v. Union des consummateurs and DuMoulin – Online Arbitration Agreement Declared Enforceable
Dell Computer Corporation v. Union des Consummateurs, 2007 SCC 34, involved a consumer class proceeding brought in connection with online orders made through Dell’s website that were cancelled by Dell due to website pricing errors. The website order page contained a notice at the bottom of the page that all purchases were subject to Dell’s standard Terms and Conditions of Sale, which were available for review by website customers through a hyperlink. The standard Terms and Conditions of Sale included a clause requiring arbitration of all disputes pursuant to the National Arbitration Forum Code of Procedure, which Dell sought to enforce. The Union argued that the arbitration clause was not enforceable under the Civil Code of Quebec because it was an “external clause” that was not brought to the purchaser’s attention. The Supreme Court of Canada unanimously agreed that the arbitration clause was enforceable, but was divided on other issues.
The court majority noted that by virtue of Quebec’s Act to establish a legal framework for information technology, electronic Internet contracts have the same legal value as paper documents. The majority also noted that traditionally an “external clause” has been considered to be a contract provision that is contained in a document that is physically separate from the main contract document, but that this traditional physical separation test required modification in order to apply to electronic contracts. The majority reasoned that a test of physical separation “would be inconsistent with the reality of the Internet environment, where no real distinction is made between scrolling through a document and using a hyperlink”. Instead, the majority applied a rule of reasonable accessibility, stating as follows:
The implied precondition of accessibility is a useful tool for the analysis of an electronic document. Thus, a clause that requires operations of such complexity that its text is not reasonably accessible cannot be regarded as an integral part of the contract. Likewise, a clause contained in a document on the Internet to which a contract on the Internet refers, but for which no hyperlink is provided, will be an external clause. Access to the clause in electronic format should be no more difficult than access to its equivalent on paper. This proposition flows both from the interpretation of art. 1435 C.C.Q. and from the principle of functional equivalence that underlies the Act to establish a legal framework for information technology.
The court majority reasoned that since Dell’s Terms and Conditions of Sale were directly accessible by clicking on highlighted hyperlink entitled “Terms and Conditions of Sale” on every web page the consumer accessed, “the clause was no more difficult for the consumer to access than would have been the case had he or she been given a paper copy of the entire contract on which the terms and conditions of sale appeared on the back of the first page”. The court majority concluded that the arbitration clause was not “external” within the meaning of the Civil Code of Quebec because “the consumer’s access to the arbitration clause was not impeded by the configuration of the clause; to read it, he or she needed only to click once on the hyperlink to the terms and conditions of sale”.
The court minority noted that the context of e-commerce requires courts to be sensitive to a number of considerations: (1) e-commerce is a different means of doing business, with terminology and concepts that may not easily fit within the existing body of contract law; (2) courts must be mindful of advancing the goal of commercial certainty for e-commerce transactions; and (3) a certain level of computer competence must be attributed to those who choose to engage in e-commerce. The minority held that a hyperlink must be functional and clearly visible in order for the hyperlinked document to be effectively brought to the attention of the consumer when the contract is formed. The minority noted that the placement of a small print hyperlink to the Terms and Conditions of Sale at the bottom of each web page was consistent with industry standards and recommendations by Industry Canada, and reasoned that consumers engaging in e-commerce expected to find a company’s terms and conditions at the bottom of the web page. The court minority found that the hyperlink to Dell’s Terms and Conditions of Sale was evident, and consequently the arbitration clause was not external to the contract. The court minority also noted that the ordering page included a notice that the sale was subject to the Terms and Conditions of Sale (which were available by hyperlink).
The court minority also rejected the Union’s argument that the arbitration clause was buried or obscured within the Terms and Conditions of Sale, noting that the first paragraph of the Terms and Conditions of Sale included a warning that the document contained a dispute resolution clause that was easily located by scrolling down the document.
a. Oyagi v. Grossman – Social Host Liability Arising from Internet Invitation List
In Oyagi and others v. Grossman and others, 2007 CanLII 9234, the Ontario Superior Court of Justice refused to dismiss an action based upon social host liability against the teenage host of a house party and his parents. In holding that the action should proceed to trial, the Court reasoned that the environment at the house party was inherently dangerous because invitations for the party were distributed to an Internet “buddy” list comprised of underage teenagers.
a. Order F07-18 (University of British Columbia) – Privacy Commissioner Determines that University Improperly Collected Information Regarding Employee’s Internet Use
In Order F07-18 (University of British Columbia), an adjudicator with the Office of the Information and Privacy Commissioner for British Columbia determined that the University had violated the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, by tracking his allegedly excessive use of the Internet for personal purposes. The University had collected the information surreptitiously using “log file reports” and computer use monitoring software. The adjudicator held that some of the information collected, including screenshots of the individual’s personal banking, went beyond what was directly related and necessary to the University’s operating programs, particularly since there was no evidence that less intrusive measures had been used first. Alternatively, the adjudicator held that notice should have been provided to the individual that his personal Internet use would be tracked. The adjudicator ordered the University not to use the information except as ordered by the labour arbitrator appointed to hear the individual’s grievance, and further directed the University to “stop collecting information through an examination of log file reports, or the use of spyware, to track its employees’ Internet use, when there are available to UBC less intrusive steps to address employee Internet activity”.
b. Wasink v. TELUS Communications Inc. – Court Upholds Employer’s Use of Voice-Recognition Software
In Wasink v. TELUS Communications Inc., 2007 FCA 21, the Federal Court of Appeal held that TELUS Communications Inc. (“TELUS”) complied with the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”) when it implemented a voice-recognition application, known as “e.Speak” to allow employees to access and use its internal computer network. In order to participate in the program, employees were required to generate a template biometric “voiceprint”, which was matched against the voice seeking to access e.Speak in the future. If the two voiceprints match, access to the network can then be obtained. Four employees filed complaints with the Privacy Commissioner of Canada, objecting to the introduction of e.Speak on the basis that its use of voiceprints was contrary to PIPEDA. The Commissioner dismissed the complaints, on the basis that the purposes for which TELUS collected the voiceprints (which were found to be “personal information”) were appropriate, that the employees were informed of those purposes, that appropriate safeguards had been met, and that the consent requirements of PIPEDA had been satisfied. The Federal Court dismissed the application for judicial review, and the employees appealed.
The Federal Court of Appeal dismissed the appeal. The Court held that the collection of the voiceprint was reasonable in the circumstances. The Court endorsed the reviewing judge’s enumeration of the relevant factors: “the degree of sensitivity associated with voice prints as personal information; the security measures implemented by Telus; the bona fide business interests of Telus …; the effectiveness of the use of voice prints to meet those objectives; the reasonableness of the collection of voice prints against alternative methods of achieving the same levels of security at comparable cost and with comparable operational benefits; and the proportionality of the loss of privacy as against the costs and operational benefits in the light of the security that Telus provides”. The Court also found that TELUS complied with its obligation to obtain the employees’ consent before collecting the voiceprints. To the extent that the employees argued that the validity of their consent was vitiated by the prospect of being disciplined if they refused to consent, there was no evidence that TELUS had taken any such actions.
F. Internet Defamation
1. Crookes v. Yahoo! Inc. and others – No Jurisdiction over U.S. Website Host
In Crookes v. Yahoo! Inc. and others, 2007 BCSC 1325, the Supreme Court of British Columbia held it did not have jurisdiction over the foreign defendant Yahoo! Inc. for alleged defamatory postings on a Yahoo! Groups website because Crookes did not allege that the postings had been read by anyone in British Columbia. The Court reasoned that publication is an essential element for a defamation action, and that an Internet statement is published when and where it is downloaded from the Internet. Since Crookes did not allege that the alleged defamatory postings had been read by anyone in British Columbia, there was no basis for the Court to find that the tort of defamation had been committed in British Columbia, and therefore there was no basis for the Court to assume jurisdiction over Yahoo! Inc.
2. Crookes v. De Simone and others – Internet Printouts Held to be Inadmissible
In a further instalment of the litigation commenced by Mr. Crookes, the Court of Appeal in Crookes v. De Simone and others, 2007 BCCA 515, upheld the trial judge’s dismissal of Crookes’ claim in defamation against De Simone, on the basis that Crookes had not proved that De Simone published the alleged libel. Crookes alleged that De Simone was a “publisher” because he was a member of the steering committee responsible for the website posting. To establish De Simone’s membership in the steering committee, Crookes relied on the minutes of the steering committee’s meetings which Crookes obtained through the Internet. De Simone denied being a member of the steering committee.
The Court of Appeal held that the meeting minutes obtained by Crookes from the Internet were not admissible on the basis of an exception to the hearsay rule because: (a) the minutes were not “necessary”, because it was clear that there were “many potential sources of this evidence of higher value than the internet posting of an unknown source”; and (b) the minutes were not sufficiently reliable, in the absence of any indication of who made the statement that De Simone was a member of the steering committee, and there were “no circumstantial guarantees of trustworthiness. The Court of Appeal therefore held that the trial judge had made no error in dismissing Crookes’ action against De Simone.
3. WeGo Kayaking Ltd. and others v. Sewid and others – Liability for Internet Defamation
In WeGo Kayaking Ltd. v. Sewid, 2007 BCSC 49, the Supreme Court of British Columbia held that critical reviews of the plaintiff kayaking companies published on a tourist information website were defamatory and motivated to provide a business advantage to Sewid, who operated a competing water taxi and tourism business. The Court rejected Sewid’s evidence that the website was owned by another defendant, and that he was not responsible for the defamatory postings. The Court held that Sewid was involved in formulating, communicating, authorizing and approving the publication of the defamatory statements, and that it did not matter if someone else was the person who actually posted the statements on the website. In assessing damages, the Court noted that the defamatory statements were widely disseminated through Internet publication. The Court awarded the plaintiffs a total of $250,000 in general damages and $3,000 in punitive damages.
4. Warman v. Fromm and Canadian Association for Free Expression Inc. – Liability for Internet Defamation
In Warman v. Fromm and Canadian Association for Free Expression Inc.,  O.J. No. 4754, the Ontario Superior Court of Justice held that Fromm and Canadian Association for Free Expression were liable for defamatory Internet postings critical of Warman and his work as an investigator for the Canadian Human Rights Commission. The Court rejected the defence of fair comment because the defamatory postings included untrue statements of fact, were not made honestly and fairly, and were made with malice. In assessing damages, the Court noted that the defamatory statements were widely disseminated through Internet publication over a long period of time. The Court awarded Warman $20,000 as general damages and $10,000 as aggravated damages, and ordered Fromm to post full retractions on all websites on which he had posted the defamatory statements.
G. Jurisdictional and Practice Issues
1. Jurisdictional Issues
a. Lawson v. Accusearch – Jurisdiction Over Foreign-based Internet Organizations
In Lawson v. Accusearch Inc., 2007 FC 125, the Federal Court held that the federal Privacy Commissioner erred when she concluded that she did not have jurisdiction under PIPEDA over the Internet activities of an organization, Accusearch Inc. (“Accusearch”), based in Wyoming, United States. Accusearch operated the Abika.com website and offered background searches, psychological profiles, and other personal information for a fee. The Privacy Commissioner found that, because she lacked the authority to compel Accusearch to provide evidence in the course of the investigation, she lacked jurisdiction to investigate at all.
The Federal Court held that, while PIPEDA is not intended to operate extraterritorially, the Commissioner did have jurisdiction over Accusearch’s collection, use, and disclosure of personal information because of the links between Accusearch and its Canadian customers. There was a real and substantial connection between Accusearch and Canada. The Court reasoned that the Commissioner’s statutory jurisdiction was not constrained by Accusearch’s failure to participate in the investigation and the Commissioner’s inability to compel Accusearch to provide evidence.
b. Minister of Advanced Education v. Rogers – Jurisdiction Over Internet Advertisements
In Minister of Advanced Education v. Rogers, 2007 BCSC 583, the Supreme Court of British Columbia considered, among other things, whether it had jurisdiction to enjoin advertisements posted on the Internet on behalf of “Vancouver University”. The Minister alleged that the defendants were in breach of the Degree Authorization Act, S.B.C. 2002, c. 24, by advertising for sale degrees or diplomas that the defendants were not lawfully authorized to confer. The defendants argued that the advertising did not occur within British Columbia, but rather occurred over the Internet.
The Court rejected the defendant’s argument, and applied the principle confirmed by the Supreme Court of Canada in Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, 2004 SCC 45, that Canadian law applies to Internet communications provided there is a real and substantial connection between the communication and Canada, as assessed by reference to the location of the content provider, the host server, the intermediaries and the end user. The Court reasoned that “Vancouver University” and its controlling minds were located in British Columbia, and therefore the advertising occurred within British Columbia.
2. Practice Issues
a. Electronic Discovery
i. Sedona Canada Principles Released for Public Comment
In February 2007, the Sedona Conference® Working Group 7 (Sedona Canada) released for public comment The Sedona Canada Principles Addressing Electronic Discovery (the “Sedona Canada Principles”). The Sedona Canada Principles are intended to provide principled guidance for the development in Canada of the law regarding the discovery of electronically stored information. Comments from members of the bar and the judiciary were solicited after the release of the public comment draft, and a revised version of the Sedona Canada Principles is scheduled to be released in 2008.
ii. eBay Canada Limited and others v. Minister of National Revenue – Income Tax Act Disclosure of Information Stored on Servers Outside Canada
In eBay Canada Limited and others v. Minister of National Revenue, 2007 FC 930, the Federal Court upheld an order under the Income Tax Act s. 231.2 requiring eBay Canada to disclose detailed contact information and sales information for certain eBay Canadian customers known as “Power Sellers”. eBay challenged the order on the basis that it did not own or possess the information, which was stored on computer servers located in California and owned by other eBay companies, although it regularly accessed and used the information in the course of its business operations in Canada. The Court held that Income Tax Act s. 231.2 was broad enough to include information stored outside of Canada if it is available to and used by persons in Canada. The Court reasoned that since the electronic information was used by various eBay entities in a variety of places, it was irrelevant where the information was located or who among the eBay entities asserted “ownership” of the information.
b. Internet Evidence
In Hollingsworth v. Ottawa Police Services Board, Ont. Sup. Ct. Small Claims Court, the Court dismissed Hollingsworth’s action for unlawful arrest and detention and violation of his Charter rights, finding that the police had reasonable grounds to arrest Hollingsworth when they responded to complaints regarding a house party. At trial, Hollingsworth testified that he had never been intoxicated and was a very responsible person, but that evidence was rejected by the Court because Hollingsworth’s own Facebook page publicly described how he became extremely intoxicated on prior occasions.
In Kourtesis v. Joris, Ont. Superior Court of Justice, July 10, 2007, the Court dismissed Kourtesis’ action for personal injury damages resulting from a motor vehicle accident. Kourtesis claimed to have suffered extensive and continuing symptoms consistent with mild to moderate soft tissue injury in her neck and left shoulder. Her evidence gave the impression that since the accident she did not have a social life at all. However, her Facebook page contained photographs of a recent Greek vacation in which she appeared to be enjoying an active social life. Based upon the Facebook pictures and related testimony, the Court rejected Kourtesis’ contention that the accident had deprived her of her ability to enjoy life.
c. Other Practice Issues
In Solara Technologies Inc. v. Beard, 2007 BCCA 402, the Court of Appeal set aside an order restraining the plaintiff from using as evidence an email that was obtained as a result of an Anton Piller order that had been subsequently set aside on the ground that certain facts had not been disclosed to the chambers judge. The Court considered that, in determining whether to exclude evidence that has been obtained as the result of an Anton Piller order that has been set aside, the Court should consider the administration of justice, justice in relation to the public interest, and justice to the parties. Applying those factors, the Court held that the chambers judge had erred in restraining the plaintiff from using the email, which it indicated could form a crucial part of the evidence in the case and which was likely discoverable in the litigation in any event.
H. Cybercrime and Regulatory Offences
1. R. v. Bryan – Supreme Court of Canada Upholds Conviction for Online Posting of Election Results
In R. v. Bryan, 2007 SCC 12, the Supreme Court of Canada upheld the prohibition in s. 329 of the Canada Elections Act, S.C. 2000, c. 9, against transmitting the result of a vote in one electoral district prior to the close of all the polling stations in the receiving district. Bryan had posted on a website the Atlantic Canada results of the 2000 general federal election while polling stations remained open in the rest of Canada. The Crown admitted that s. 329 of the Canada Elections Act infringed Bryan’s freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms, but sought to uphold the legislation as a reasonable limit that is demonstrably justified in a free and democratic society pursuant to s. 1 of the Charter. The provision was upheld at trial, struck down by the summary conviction appeal court, but upheld again by a majority of the Court of Appeal.
The majority of the Supreme Court of Canada dismissed the appeal, holding that the provision was justified under s. 1 of the Charter. For the majority, Bastarache J. held that the objective of the provision – which he characterized as being to ensure informational equality, and thereby address the perception of unfairness if some voters have access to information unavailable to others – is pressing and substantial, even though it cannot easily be measured. He concluded that there was a rational connection between the prohibition and the objective, and that the means chosen were proportional, having regard to the salutary effects of the prohibition weighted against its deleterious effects. Fish J. concurred with Bastarache J., in a separate judgment, as did Deschamps, Charron and Rothstein JJ. The minority, in a judgment delivered by Abella J. and concurred in by McLachlin C.J. and Binnie and LeBel JJ., would have found the provision to be unconstitutional, on the ground that its deleterious effects outweighed its salutary benefits. Notably, the minority found that the publication ban had been rendered obsolete by advances in broadcasting and telecommunications technologies, including the ease and accessibility of Internet communications.
2. R. v. Mirsayah – Threats Uttered by Email
In R. v. Mirsayah, the Supreme Court of British Columbia upheld the appellant’s conviction for uttering threats in the form of emails sent, using a false name, to the president of the University of British Columbia in the midst of a labour dispute. The emails threatened a campaign of violence against the president and her family, and had been sent using a computer in the undergraduate computer lab at the University. There was evidence indicating that the computer from which the emails were sent had been accessed using the appellant’s login credentials and, in fact, he had been the lab supervisor on duty that day. A disk containing the email was found in his backpack, and there was evidence that he had attempted to delete traces of the email from his home computer (where he was alleged to have drafted it originally). The appellant was convicted at trial, and the conviction was upheld on appeal.
This paper is an earlier version of a chapter in Annual Review of Law & Practice, 2007, Continuing Legal Education Society of British Columbia.