In the Provincial Court of Alberta Citation: R. v. McKay, 2013 ABPC 13 Citation: R. v. McKay, 2013 ABPC 13 20130121 111003307P1 McKay

In the Provincial Court of Alberta

Citation: R. v. McKay, 2013 ABPC 13

Date:

20130121

Docket:

111003307P1

Registry:

Calgary

Between:

Her Majesty the Queen

- and -

Christopher Scott McKay

Ruling on Voir Dire by the Honourable Judge H.A. Lamoureux

[1] The accused is charged under s. 253(1)(a) and 253(1)(b) of the

Criminal Code. The

accused has a filed a Notice pursuant to the

Charter s. 24(2), to exclude evidence obtained

arising from alleged breaches of the accused’ rights pursuant to s. 7, 8 and 10 of the

Charter. In

particular, the accused says that he was not given a reasonable opportunity to exercise his right

to counsel and that the accused was not provided with a full range of resources and access to

sources of information which reasonably were or ought have been made available to him to

contact a lawyer, including internet access. The Defence also says that the accused was not given

reasonable assistance by police to contact his choice of counsel and that he did not waive his

right to counsel in any legally binding manner.

[2] There is a specific issue in this case, in that the accused says that internet access should

form part of the resources provided by police to detainees in order to allow them a reasonable

opportunity to exercise the right to counsel.

Evidence in the Voir Dire

[3] In this case, both the Crown and Defence have called evidence in the

voir dire.

Crown Evidence

[4] The Court has evidence from Constable Dennis Vink who has been a member of Calgary

Police Service for 13.5 years and is a qualified breath technician who has administered hundreds

Page: 2

of tests. The officer testified that on August 22, 2011, he stopped the motor vehicle being

operated by the accused in a traffic stop as a consequence of his observation that the vehicle

proceeded through a red light without stopping. The officer noted that the accused had a very

light smell of alcohol on his breath and he informed the officer that he had consumed one beer at

a friend’s house that evening. The officer formed the requisite suspicion that the accused had

alcohol in his body at the time of operating a motor vehicle and he radioed for an ASD. At 1:43

am, the officer made an ASD Demand and the sample which was acceptable registered a fail at

1:44 am. The ASD was an Intoxilyzer 400D and it was working properly. The officer testified

that the fail meant that the accused’ blood alcohol exceeded the legal limit and he formed the

opinion that the accused’ ability to operate a motor vehicle was impaired by alcohol. The

accused was arrested at 1:49 am for the offence of operating a motor vehicle while his ability to

do so was impaired by alcohol. The accused was read his

Charter rights at 1:49 am from a card.

The accused was asked if he understood and he replied, “yup”. The accused was asked if he

wanted to call a lawyer and he replied, “yes”. The officer read a proper Caution at 1:51 am

followed by a proper breath demand at 1:53 am. The accused was transported from the scene at

1:54 am and arrived at 2 District office at 2:00am. Upon arrival the officer showed the accused

the resources available to contact counsel. In particular the officer showed the accused the 1-866

telephone number on the wall, 411 for information as to phone numbers, the White Pages and the

Yellow Pages of the telephone book. The accused was given privacy and he made a telephone

call at 2:04 am. The accused finished the telephone call at 2:09 am. He was asked if he spoke

with someone and he replied, “yes”. At 2:13 am the accused was brought before a qualified

breath technician and he provided samples into an approved instrument, the first sample at 2:14

am and the second sample at 2:36 am. The breath technician produced a Certificate of Analysis

of the accused’ breath which was given to the arresting officer. Officer Vink signed the bottom

of the Certificate of Analysis, explained the document to the accused, read the Notice of

Intention to Produce the document at Trial to the accused, served a true copy of the original of

the Certificate of Analysis (a carbon) on the accused. The officer, prior to service, compared the

original Certificate with the carbon copy given to the accused, determined that they were exact

duplicates of one another. Service of the Certificate of Analysis was effected and the accused

was released shortly after 3:00 am with his documents, including the Certificate of Analysis,

Exhibit “A” in the

voir dire, “in his hands”. The accused was also served with an Appearance

Notice, a Second Offender Notice, and a license suspension.

[5] In cross examination the officer clarified that the White and Yellow Pages from the

telephone book were current editions. In cross examination the officer also testified that at the

time of dealing with the accused, police did not have any ability to provide access to the internet

to detainees in a secure holding area. The officer testified that no access to the internet was

given and he testified that no access to the internet was requested by the accused. He did

reiterate in cross examination that the toll free number, the White Pages, the Yellow Pages and

411 information was given to the accused. The officer also testified in cross examination that to

his knowledge, lists of lawyers who practice in the area of impaired driving offences are

contained in the Yellow Pages of the Calgary telephone book.

Page: 3

Defence Evidence

[6] The accused, Christopher McKay, testified in his own defence in the

voir dire. He is 20

years of age and was 19 years of age at the time of the dealing with police in this case. Mr.

McKay is a graduate of the Mount Royal University Broadcasting Program and he is currently

working as a cameraman in the audio visual field. Mr. McKay testified that upon arrival at the

Calgary Police station his cell phone was placed in the police locker along with his other

personal belongings. He testified that he was taken to a phone number which was mounted on

the wall by telephones and he utilized that telephone number. He testified that he used that

telephone number when the officer told him that there was a number to call for free legal advice.

The accused testified that to his recollection, that he did not see telephone books and that he does

not recall the officer pointing out telephone books to him. However, he did testify that after he

dialed the toll free number and was placed inside a holding cell to talk the person on the

telephone, he did notice a set of “phone books on the floor”. The accused also testified that he

usually uses

Google to access any information that he needs. He was asked by his lawyer if he

understood what 411 was. He testified that he did not know what 411 was at the time and that he

would not have considered “411 a viable search engine”. Mr. McKay testified that he was

certainly interested in obtaining legal advice at the time and that he would access

Google to

search out appropriate legal advice. Mr. McKay also testified that at the time of his arrest he

believed that he had the right to only one telephone call and that once he had used up that

telephone call his rights were exhausted. Mr. McKay also testified that the call that he made

using the toll free number did not give him anymore information than he already had received

from the arresting officer. He testified that the telephone call was abrupt and it appeared that the

person on the other end of the telephone did not want to talk to him. Mr. McKay was asked

about his level of satisfaction with his toll free telephone call and he replied, “no satisfaction at

all”. Mr. McKay reiterated that at the time, he thought he could only have one telephone call

and that his understanding arose from pop culture and Hollywood movies. In examination in

chief Mr. McKay conceded that he did not tell the arresting officer that he wasn’t satisfied with

his telephone information and he reiterated that he did not know that he had any rights to further

opportunities to get legal advice at the time.

[7] In cross examination Mr. McKay conceded that he had consumed five beers between

7:00 pm and 11:30 pm on the night in question immediately prior to his arrest and he conceded

that he lied to the officer about alcohol consumption because he, “didn’t want to get in trouble”.

Decision

[8] The key issue for consideration in this case is whether internet access should form part of

police resources provided to detainees in order to facilitate a reasonable opportunity to exercise

the constitutional right to counsel.

[9] There is crucial evidence in the testimony of the accused on the issue of his knowledge of

resources available to him to find information that he is not personally aware of. The evidence is

at p. 7, ll. 20-24 of the Transcript:

Q How do you -- how did you generally search for information at that time

in your life?

Page: 4

A By using

Google.

Q Okay. And what does

Google do for you?

A

Google is the main way that I find information or services that I don’t

know of.

[10] We are at an unprecedented time in human history. The real world exists parallel to and

in tandem with the virtual world. It is uncontroverted that the vast majority of individuals born

after the year 1980 first look to the virtual world for information, for education, for access to

services, before they consider access to anachronistic services such as paper telephone

directories and numbers posted on a wall. The computer generation considers the internet, the

cell phone, the iPad, the Smartphone, essential partners in daily life. The average 19 year old

looks to

Google as a source point for much of the information necessary to carry on daily life.

Google

mapping, driving motor vehicles with the assistance of Google, access to restaurants,

access to medical care, access to Universities and educational information, and access to

lawyers, along with millions of other items of information are all contained on the metasource -

Google

. Indeed Google seeks as one of its missions to become the source of original information

for the world.

[11] So what happens when a 19 year old is arrested and has never faced the prospect of

trying to get legal advice before providing potentially incriminating evidence to a police officer?

This Court takes judicial notice that the average 19 year old will look to the internet for

information to get legal advice

before checking White Pages, Yellow Pages or 411. In fact the

accused himself has testified that he did not at the material time, even know what 411 was. In a

statement of deep ignorance, the accused says under oath that he would not have considered

“411 a viable search engine”. Transcript p. 8, ll. 4-16:

Q Okay. So at the time, August 22

nd, 2011, when you were in that police

station with Constable Vink, did -- what was your understanding of 411?

A I was not a hundred per cent sure. I would not have considered it a

viable search engine or directory resource.

Q Okay. In the circumstance that you were in on that occasion, were

you interested in receiving legal advice?

A Absolutely.

Q Okay. If you had not been in a police station, how would you have

searched for information about legal advice?

A I would have searched for legal advice using the internet, more

specifically,

Google.

[12] So, what information would have been available to the accused if he had gone on

Google

and questioned

Google as to “Calgary criminal defence lawyers”?

Page: 5

[13] A search of

Google in five seconds or less, reveals the following information:

Criminal Lawyer

- Respected with 20 Years Experience

www.criminallawcalgary.ca/

Criminal Law Trials and Appeals

Contact Us Now - About Us - Criminal Law Specialty - Impaired Driving Expertise

Criminal Defence Lawyer

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[14] In short, in the manner of seconds, an accused person with access to the internet can

Google

the names of experienced top Calgary criminal defence lawyers including addresses,

telephone numbers, email addresses and other educational information concerning the services

they provide.

[15] The information on

Google may be more current and more detailed than a name and a

phone number in the Yellow Pages, the White Pages, 411 or the toll free number.

[16] The Court notes that police are routinely accessing the internet in order to investigate

crime and to assist them in gathering evidence and data in the course and scope of their

employment. It is now time for police to provide to accused persons access to the internet at the

same time as they provide access to 411 and paper phone books.

[17] Every police station should have access to the internet so that accused’ persons can go to

the internet to access the names of lawyers that they require. This information in the virtual

world must be provided concurrent with information in the real world, such as the Yellow Pages,

White Pages, and 411. There are sufficient numbers of individuals born post computer age who

have no understanding of the paper world who have extensive knowledge and understanding of

the virtual world. These individuals must be accommodated and the only way to do that is to

ensure that detainees under arrest be given the opportunity to use the internet to call a lawyer in

the same way that they can use a telephone book to call a lawyer.

[18] In the current case before the Court there is no question that the accused invoked his right

to counsel. The burden lies with the Crown to establish that the accused was provided a

reasonable opportunity to exercise that right.

[19] The question is whether access to 411, White and Yellow Pages and the toll free number

amounted to a reasonable opportunity. The question is to what is a reasonable opportunity is

contextual and fact specific. The Crown says that the police do not have any duty in law to

provide access to the internet for detainees when there is no specific request to access the

internet. The Court disagrees. In particular case, the accused was actually directed to use the

toll free number and he did so in ignorance of the potential to use other resources with which he

might have been more familiar. In the Court’s view, in the year 2013 police providing access to

the internet is part of a detainee’s reasonable opportunity to contact legal counsel. This is so

Page: 7

even whether counsel of choice is not an issue and the accused is simply seeking general

information from a source such as

Google.

[20] S. 10(b) of the

Charter impresses both informational and implementational duties on

police who arrest or detain an individual. The informational duty was satisfied in this case. The

implementational is indeed two fold as the Crown indicates in its excellent written Brief. The

first implementational duty is “to provide the detainee with a reasonable opportunity to exercise

the right (except in urgent and dangerous circumstance)”.

R. v. Bartle, (1994) 92 CCC (3d) 289

(SCC), at 301. The second implementational duty is to “refrain from eliciting from the detainee

until he or she has had a reasonable opportunity (again except in cases of urgency or danger).”

R.

v. Bartle

, surpra

.

[21] In this case, the Court concludes that the Crown has not met the onus of proof that lies

upon it with respect to the first implementational duty on the part of police. The accused was not

given a reasonable opportunity to exercise his right to access a lawyer, by failure of the police to

provide concurrent access to the internet along with 411, the toll free number and the paper

telephone directory. In the year 2013 it is the Court’s view that all police stations must be

equipped with internet access and detainees must have the same opportunities to access the

internet to find a lawyer as they do to access the telephone book to find a lawyer.

[22] Accordingly, s. 10(b)

Charter breach has been established.

[23] The Court will hear submissions under s. 24(2).

Dated at the City of Calgary, Alberta this 21

st day of January, 2013.

H.A. Lamoureux

A Judge of the Provincial Court of Alberta

Appearances:

Kristyn Stevens

for the Crown

Ian Savage

for the Accused

We have found no evidence that Facebook user data was compromised. : will see..

Facebook, like every significant internet service, is frequently targeted by those who want to disrupt or access our data and infrastructure. As such, we invest heavily in preventing, detecting, and responding to threats that target our infrastructure, and we never stop working to protect the people who use our service. The vast majority of the time, we are successful in preventing harm before it happens, and our security team works to quickly and effectively investigate and stop abuse.

Last month, Facebook Security discovered that our systems had been targeted in a sophisticated attack. This attack occurred when a handful of employees visited a mobile developer website that was compromised. The compromised website hosted an exploit which then allowed malware to be installed on these employee laptops. The laptops were fully-patched and running up-to-date anti-virus software. As soon as we discovered the presence of the malware, we remediated all infected machines, informed law enforcement, and began a significant investigation that continues to this day.

We have found no evidence that Facebook user data was compromised.

As part of our ongoing investigation, we are working continuously and closely with our own internal engineering teams, with security teams at other companies, and with law enforcement authorities to learn everything we can about the attack, and how to prevent similar incidents in the future.

Facebook Security has a team dedicated to tracking threats and monitoring our infrastructure for attacks at all times. In this particular instance, we flagged a suspicious domain in our corporate DNS logs and tracked it back to an employee laptop. Upon conducting a forensic examination of that laptop, we identified a malicious file, and then searched company-wide and flagged several other compromised employee laptops.

After analyzing the compromised website where the attack originated, we found it was using a "zero-day" (previously unseen) exploit to bypass the Java sandbox (built-in protections) to install the malware. We immediately reported the exploit to Oracle, and they confirmed our findings and provided a patch on February 1, 2013, that addresses this vulnerability.

Facebook was not alone in this attack. It is clear that others were attacked and infiltrated recently as well. As one of the first companies to discover this malware, we immediately took steps to start sharing details about the infiltration with the other companies and entities that were affected. We plan to continue collaborating on this incident through an informal working group and other means.

There are a few important points that people on Facebook should understand about this attack:

- Foremost, we have found no evidence that Facebook user data was compromised.

- We will continue to work with law enforcement and the other organizations and entities affected by this attack. It is in everyone’s interests for our industry to work together to prevent attacks such as these in the future.

Canada’s privacy watchdog wants answers over NETFILE

OTTAWA — Canada’s privacy watchdog would like some answers from the government’s tax collector after it eliminated the need for a

web-access code to file personal-income tax returns online.

Unlike previous years, the Canada Revenue Agency will simply require a person’s Social Insurance Number and date of birth, similar to paper filing, when using NETFILE, the web service for filing personal income tax returns.

The agency did not consult with the Office of the Privacy Commissioner of Canada before making the change, and now Jennifer Stoddart’s office wants information “to determine if there’s a need to go further,” said Scott Hutchinson, a spokesman for the office.

“We want to see what information they provide to us and we will proceed from there.”

At this point, the office doesn’t have the necessary details to make a determination, Hutchinson added.

“Lacking details, we have not had an opportunity to examine the changes made from a privacy standpoint. While it doesn’t appear on the surface that CRA is collecting new information from tax filers that it already hadn’t been in the past, one important question for the agency to answer would be: how is the security of personal information being upheld, and specifically whether there is the potential for fraudulent filers to access an individual’s personal information under the changes to NETFILE.”

In a statement Tuesday, the revenue agency said it consulted with the Treasury Board before making the decision, and is now working with the privacy commission’s office and “will provide all information requested.” In the meantime, the agency defended the decision.

“As the Web Access Code did not allow Canadians to access or change their personal information with CRA, its elimination has no adverse effect on the previously established CRA security of private taxpayers’ information.”

The statement also reiterated that the agency “performs a number of identification validations, including validating your SIN and date of birth with the CRA information on file. If any discrepancy is found, the system will automatically stop processing your return. Along with these validations, the system does not permit changes to address or banking information. NETFILE is, and will continue to be, safe and secure.”

The news of the NETFILE change at the Canada Revenue Agency follows the admission earlier this month by Human Resources and Skills Development Canada (HRSDC) that it had lost a hard drive with the personal information of about 583,000 Canada Student Loans borrowers. The unencrypted, unprotected hard drive included names, social insurance numbers, dates of birth, addresses and loan balances — more than enough information for criminals to steal someone’s identity.

The investigation into the data breach at HRSDC by Stoddart’s office is ongoing.

In another move to encourage people to file their taxes online, the revenue agency will no longer mail personalized income-tax packages to Canadians, but people will still be able to file using paper forms. Revenue Canada, meanwhile, has eliminated its Telefile service, which permitted people to submit their tax information via the telephone.

Last year, about 35 per cent, or 9.7 million people, filed using paper forms, compared to about 65 per cent, or over 17.6 million people, who filed electronically. About one per cent (321,033 people) filed using Telefile.

In its statement, the revenue agency said it is constantly refining its business processes “to make sure it uses its resources responsibly and remains efficient and effective in delivering services to Canadians,” noting it costs about four times more to process a paper return than an electronic return.

 

OPC Guidance Documents ... Information for individuals regarding the loss of the HRSDC hard drive.

OPC Guidance Documents

Information for individuals regarding the loss of the HRSDC hard drive

On January 11, Human Resources and Skills Development Canada (HRSDC) announced that a hard drive containing the personal information about more than half a million clients of the Canada Student Loans Program and 250 departmental employees was missing. The Office of the Privacy Commissioner of Canada, which is investigating the matter, has developed the following information to help those who may have concerns or questions for our office.

What is the Office of the Privacy Commissioner of Canada doing about the loss of an external hard drive from an HRSDC office?

The Office of the Privacy Commissioner of Canada (OPC) has launched an investigation under the Privacy Act, the federal public sector privacy law that applies to personal information handling practices of federal departments and agencies.

What will an investigation do for me?

This incident is being investigated under the Privacy Act, which covers federal departments and agencies. The OPC investigates complaints and, given the Commissioner’s role as an ombudsman, makes recommendations to organizations with respect to their personal information handling practices and seeks to resolve matters on behalf of individuals in Canada. You can expect that the Commissioner will make public her findings in this matter.

Will the investigation result in any compensation for those affected?

The Privacy Act does not give our Office the ability to fine organizations or seek damages on behalf of individuals.

When will the investigation be complete?

Every case is different, so it’s difficult to predict the exact length of time. Typically, an investigation may take several months. This is an issue we are taking very seriously and we are committed to completing a thorough investigation as quickly as possible.

I’m concerned that I may be one of the individuals impacted by this incident. What should I do?

While this breach touches a large number of Canadians, we understand that not all student loan applicants have been affected. If individuals have not received a notification letter, they could contact HRSDC directly to determine whether their information was on the lost portable hard drive. HRSDC has established a toll-free number at 1-866-885-1866 (or 416-572-1113 for those outside of North America).

I want to complain. How can I do that?

The Commissioner is already investigating this matter on behalf of Canadians and will make her findings public. In the circumstances, individuals do not need to file individual complaints in order to initiate a full investigation into this incident. If, however, you would still like to lodge a formal complaint with us, the first thing you should do is find out if you are one of the individuals affected by this incident (see above). Once you have done this, you can proceed to file your complaint.

How do I file a formal complaint?

If you choose to file a privacy complaint against a federal government institution, you must do so in writing (download or print a complaint form) or via our online complaint form on our website. For more information about filing a complaint, see our complaints web page. You can also call our Office at 1-800-282-1376 if you have questions about our complaints process. There is no charge for filing a complaint with the Office of the Privacy Commissioner of Canada and you are not required to hire special advisors to help you with the process.

Should I be concerned about my personal information being misused?

HRSDC has indicated it has no evidence that personal information has been used to commit fraud to date. However, since officials are unable to locate the hard drive containing the data, individuals may also want to take certain precautions, in addition to steps being taken by the OPC and HRSDC, to better protect themselves from identity theft.

What can I do to protect myself against identity theft and fraud?

If an individual learns that their personal information has been compromised, they may want to takes steps to help protect themselves against identity theft. For example:

• Contact credit card companies, banks, department stores and any other organizations where you have an account to advise them of the loss of your personal information.
• Contact other organizations who supply the identification. For example, if your SIN number has been compromised, contact Service Canada.
• Contact the Canadian credit bureaus – TransUnion and Equifax – to report suspected identity theft and obtain a free copy of your credit report to ensure it is accurate and doesn’t include debts you haven’t incurred.
• Take notes & follow up with the Canadian Anti-Fraud Centre (1-888-495-8501). The CAFC is jointly managed by the RCMP, OPP and the Competition Bureau. They collect information about identity theft and offer advice to victims.

We have a number of resources about identity theft available on our web site. See our “Identity Theft” topic page for more information.

PROTECTING CANADIANS' PERSONAL INFORMATION AT HRSDC The Honourable Diane Finley, Minister of Human Resources and Skills Development, has issued the following statement regarding the loss of an external hard drive from an HRSDC office in Gatineau, Quebec

PROTECTING CANADIANS' PERSONAL INFORMATION AT HRSDC

Ottawa, Ontario, January 11, 2013 - The Honourable Diane Finley, Minister of Human Resources and Skills Development, has issued the following statement regarding the loss of an external hard drive from an HRSDC office in Gatineau, Quebec which contained personal information of 583,000 Canada Student Loans Program borrowers between 2000-2006 :
Full details are available in the attached backgrounder.
“I want all Canadians to know that I have expressed my disappointment to departmental officials at this unacceptable and avoidable incident in handling Canadians’ personal information. As a result, I have directed that departmental officials take a number of immediate actions to ensure that such an unnecessary situation does not happen again.
“The department will be making every effort to contact the individuals whose information was lost. This includes direct notification to those for whom we have current contact information. I am releasing all details on the breach publicly and we will be working with a number of external partners to ensure that Canadians are made aware of the data loss. The Department is continuing its investigation. The Office of the Privacy Commissioner has been consulted. My office has engaged the Royal Canadian Mounted Police on this matter, given its serious nature.
“I have requested that HRSDC employees across Canada receive comprehensive communications on the seriousness of these recent incidents and that they participate in mandatory training on a new security policy to ensure that similar situations do not occur again. Further, I have instructed that the new policy contain disciplinary measures that will be implemented for staff, up to and including termination, should the strict codes of privacy and security not be followed.
“On behalf of our Government, I want to reassure Canadians that we are serious about protecting their personal information. As Minister, I will ensure that every effort is taken so that HRSDC meets the expectations of Canadians in keeping their information safe and secure.”

- 30 -

This news release is available in alternative formats on request.
For further information (media only):
Alyson Queen
Office of Minister Finley
819-994-2482
Media Relations Office
Human Resources and Skills Development Canada
819-994-5559
Follow us on Twitter

IF THERE IS A DISCREPANCY BETWEEN ANY PRINTED VERSION AND THE ELECTRONIC VERSION OF THIS NEWS RELEASE, THE ELECTRONIC VERSION WILL PREVAIL.

---

Backgrounder

---

In late 2012, the department of Human Resources and Skills Development Canada (HRSDC) informed the Office of the Privacy Commissioner of the loss of a USB key, which contained the personal information of over 5,000 Canadians.

• While reviewing this incident, departmental officials learned of a subsequent serious loss of Canadians’ personal information.
• Although the search is ongoing, an external hard drive has been deemed lost from an HRSDC office in Gatineau, Quebec.
• The Department is continuing its investigation. The Office of the Privacy Commissioner has been consulted. The office of the Minister has engaged the Royal Canadian Mounted Police on this matter, given its serious nature.

Details regarding loss of the hard drive

• A hard drive containing personal information on 583,000 Canada Student Loans borrowers dated from 2000-2006 has been deemed lost at an HSRDC office in Gatineau, Quebec, although the search is ongoing.
• The file contained information including student names, dates of birth, Social Insurance Numbers, addresses and student loan balances from recipients across the country (except Quebec, Nunavut and the Northwest Territories as they manage their own student loan programs).
• Personal contact information of 250 HRSDC employees was also on the hard drive.
• No banking or medical information was included on the drive.
• The client information was saved onto an external hard drive as a back-up storage option.

Timeline of events

• November 5, 2012: A HRSDC employee discovered that an external hard drive was missing. Search efforts began.
• November 28: The Departmental Security Officer was notified.
• December 6: Discovery that personal information of Canada Student Loans Program clients was on the hard drive.
• December 14: The Office of the Privacy Commissioner was notified.
• January 7: The incident was referred to the Royal Canadian Mounted Police.
• January 11: Canadian public was informed of the incident.

Process for inquiries and more information
HRSDC is sending letters to individuals affected, for whom we have current contact information, to advise them of the incident and what steps to take to help protect their personal information.
A toll-free number has been set-up at 1-866-885-1866 (or 416-572-1113 for those outside of North America) for individuals to verify if they are affected by this incident, and to ask additional questions regarding this issue. Hours of operation will be 8:00 a.m.-8:00 p.m. (EST), 7 days a week, starting Monday, January 14, 2013, for as long as needed.
People with a hearing or speech impairment and using a teletypewriter (TTY) can call 1-800-263-5883. Hours of operation will be 8:00 a.m. -8:00 p.m. (EST), 7 days a week, starting Monday, January 14, 2013, for as long as needed.
All details on this incident and how Canadians can protect their personal information are available at http://www.canlearn.ca/eng/main/spotlighton/privacy/index.shtml
New HRSDC policy for storing secure information
The Minister has directed that the overall policy for security and storage of personal information at HRSDC be strengthened and improved. The highlights are:

• New, stricter protocols to be implemented immediately. Portable hard drives are no longer permitted. Unapproved USB keys are not to be connected to the network;
• Immediate risk assessments of all portable security devices used in the Department’s work environment to ensure that appropriate safeguards are in place; these assessments will continue on a regular, ongoing basis;
• Mandatory training for all employees regarding the proper handling of sensitive information, including personal information;
• Implement new data loss prevention technology, which can be configured to control or prevent the transfer of sensitive information;
• Disciplinary measures that will be implemented for staff, up to and including termination, should the strict codes of privacy and security not be followed.

Federal Justice Minister Rob Nicholson says the controversial Bill C-30, known as the online surveillance or warrantless wiretapping bill, won't go ahead due to opposition from the public.

Federal Justice Minister Rob Nicholson says the controversial Bill C-30, known as the online surveillance or warrantless wiretapping bill, won't go ahead due to opposition from the public.

Canadians rallied against the bill after the public safety minister told an opposition MP that he could "either stand with us or with the child pornographers."

"We will not be proceeding with Bill C-30 and any attempts that we will continue to have to modernize the Criminal Code will not contain the measures contained in C-30, including the warrantless mandatory disclosure of basic subscriber information or the requirement for telecommunications service providers to build intercept capability within their systems," Nicholson said.

"We've listened to the concerns of Canadians who have been very clear on this and responding to that."

Nicholson made the announcement after introducing a bill to update provisions that would allow for warrantless phone tapping in emergencies.

Canadian law allows police to wiretap without authorization from a court when there is the risk of imminent harm, such as a kidnapping or bomb threat, but the Supreme Court last year struck down the law and gave Parliament 12 months to rewrite another one.

Read the full text of C-55, An Act to respond to the Supreme Court

Why Edgar Schmidt is Suing the Department of Justice Canada

 Why Edgar Schmidt is Suing the Department of Justice

 

Edgar Schmidt is a senior lawyer with the Department of Justice. That is, he used to be a senior lawyer with the Department of Justice until he was suspended on December 14^th, 2012 after suing the Department by alleging that it has been conducting inadequate reviews to ensure proposed legislation complies with the Canadian Charter of Rights and Freedoms (the “Charter”).
The Department of Justice plays an important role in Canadian policy-making: it reviews proposed bills and legislations to make sure they are compatible with human rights legislation or the Charter. If the proposed legislation does not comply, the Department reports the inconsistency to the House of Commons. At least that’s the theory.
Section 4.1 of the Department of Justice Act outlines how regulations and bills are examined, which specifically provides that “the Minister shall…examine every regulation…and every Bill introduced… in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any such inconsistency to the House of Commons at the first convenient opportunity.”
Based on this provision, the Minister of Justice has a duty to report to the House of Commons any inconsistency a bill or regulation has with the Charter. In addition, the Minister of Justice has a duty to report any inconsistency a bill or regulation has with the Canadian Bill of Rights under section 3 of the Canadian Bill of Rights along with similar duties under section 3(2) and 3(3) of the Statutory Instruments Act.
The issue is that the Department of Justice has been interpreting these duties in a loose – and arguably unlawful – way.
Schmidt alleges that since 1993, with the knowledge and approval of the Deputy Minister, the Department of Justice has applied a different standard than that required under section 4.1 of the Department of Justice Act. Whereas the statute requires officials to report any such inconsistencies with the Charter or the Bill of Rights to the House of Commons, a different interpretation has been followed in the Department by qualifying such inconsistencies into two distinct categories: manifestly or certainly inconsistent.
Schmidt explains how certainly inconsistent provisions are dealt with in the Department in his statement of claim:

“14. Specifically, with regard to its examination under the Department of Justice Act in relation to the Charter, if it is in the opinion of counsel in the Department that:
a. a provision is likely or even almost certainly inconsistent with the Charter – even if the probability of inconsistency is 95% or more -, but
b. some argument can be reasonably be made in favour of its consistency – even if all arguments in favour of consistency have a combined likelihood of success of 5% or less-,
no advice is given to the Deputy Minister that he or she – unless he or she forms a different opinion – has a duty to communicate the concern to a Clerk of the Privy Council.”

Based on these allegations, the Department of Justice is approving proposed legislation that has only the mere possibility of being consistent with the Charter or the Bill of Rights – even if that possibility is an extremely remote one. In contrast, Schmidt argues that the statutory examination provisions require the Department of Justice to determine whether the proposed legislation is actually consistent with the Charter or the Bill of Rights – not on the possibility of whether or not the legislation could be consistent.
Essentially, rather than public officials doing their due diligence to make sure proposed laws comply with our protected human rights, they are passing questionable laws and putting the onus on the Canadian public to challenge the legislation for infringements of the Charter or the Bill of Rights. It’s a frightening proposition. If Schmidt’s allegations are proven to be true, it could mean that Canada is rife with laws that are inconsistent with human rights, if only because of the failings of a government watchdog and the limited resources of a legal system unable to rectify them all.

Canadian Senator Patrick Brazeau Controversy list

Controversy
Brazeau was criticized for stating his intention to accept a seat in the Senate and concurrently remain national chief of the CAP thus collecting two publicly funded six-figure salaries; a decision from which he subsequently retreated by resigning as CAP chief.^[5] He has also come under fire over a sexual harassment complaint made against him to the Human Rights Tribunal of Ontario ^[6] and for allegedly condoning heavy drinking during business hours.^[7] Brazeau resigned ^[8] from his position of national chief of the Congress of Aboriginal Peoples on January 9, 2009, issuing the following statement ^[9] on the Congress of Aboriginal Peoples' website:

In December 2008, I was honoured by my nomination to the Senate of Canada by the Prime Minister, the Right Honourable Stephen Harper. Such an appointment is a great privilege and affords me the considerable opportunity to continue my public service to Canada. My goal is and has always been to serve Canada’s Aboriginal peoples and my country to the best of my skills and abilities, in a manner that is accountable, responsible and transparent. I am committed to bringing this same discipline to my role as a Senator in the Parliament of Canada. To this end, I have decided to step down from my position as National Chief of the Congress of Aboriginal Peoples effective immediately. I am eager to fully embrace my new role and to contribute to the important work of the Senate of Canada. I am committed to continuing my advancement of Aboriginal issues and opportunities across Canada. Further, I relish the opportunity to build upon the achievements of Prime Minister Harper’s government.

In addition, he has faced allegations around the spending of funds received by the Congress of Aboriginal Peoples for aboriginal health programs. The Globe and Mail reported on January 19, 2009, that Health Canada auditors rejected almost $260,000 in congress expenses out of a budget of $472,900 allocated to the congress by the ministry, alleging that much of the money had been spent on board meetings where health issues were not discussed.^[10] Conservative Party spokesman Kory Teneycke indicated that the alleged misspending occurred before Brazeau became chief of the organization, and that Brazeau took steps to address the problem once he took over the leadership.^[11]

 Boxing fight loss

On March 31, 2012, Brazeau lost in a celebrity boxing match to Liberal MP Justin Trudeau.^[12] Brazeau has stated he would like a rematch with Trudeau; both camps have yet to set a date.

 Twitter

On June 26, 2012, Brazeau came under fire after attacking Canadian Press journalist Jennifer Ditchburn on Twitter. Brazeau publicly called Ditchburn a bitch after she reported on his poor Senate attendance record.^[13] Brazeau not only had poor attendance on the Senate floor: between June 2011 and April 2012, he missed 65% of meetings at the Senate Standing Committee on Aboriginal Peoples, on which he sits.

 Residency controversy

Without the knowledge of his ex-wife's father, Brazeau used Daryl Tenasco's address at Kitigan Zibi, Quebec for the purpose obtaining a aboriginal income tax exemption from 2004 to 2008. Kitigan Zibi Chief Gilbert Whiteduck said. “Normally you have income tax exemption when you live on a reserve and you are employed by a reserve.” Neighbors said it did not appear that Brazeau lived in the community. According to Jean Guy Whiteduck “I’ve never seen him, it’s right across from my place. I’ve never seen him there. He may have visited. That’s about it."^[14]

 Chief Theresa Spence

Brazeau received criticism for mocking Attawapiskat Chief Theresa Spence at a Conservative fundraiser in an Ottawa suburb in January of 2013. In an audio recording from the event provided to CTV News by Metroland Media, Brazeau is heard stating publicly "Oh, poor Theresa Spence. Oh, poor her," in regards to the six-week long hunger strike the aboriginal leader had recently ended. Spence was requesting a meeting with Prime Minister Stephen Harper and Governor General of Canada David Johnston to discuss aboriginal treaty rights and socioeconomic issues. Brazeau was also critical of the Idle No More movement, saying that he felt many Canadian aboriginals simply expected to be supported by taxpayers. The recording also revealed Brazeau stating "To sit back, wait for the government to give me handouts. Maybe be on welfare, maybe drink, maybe take up drugs", in regards to aboriginal Canadians. He later added "The best way to get our land back is to buy it back. Just like every other Canadian."^[1] Brazeau also insinuated in the recording that Spence had actually gained weight during her "so-called hunger strike". ^[15]

Arrest for assault and sexual assault

On February 7, 2013, Brazeau was arrested for an incident relating to domestic violence. He was subsequently charged with assault and sexual assault in Gatineau court house the next day. After a short court appearance Brazeau was released on $1000 bail on the condition he not go within 150 meters of the victim's work or home.^[16] Shortly after his arrest Marjory LeBreton the Conservative Senate leader confirmed in a statement "In light of the serious nature of the events reported today, Senator Brazeau has been removed from the Conservative caucus. As this is a legal matter, I cannot comment further."^[17]

 References

1. ^ ^{a b} CBC News (February 8, 2013). "Patrick Brazeau facing domestic, sexual assault charges". CBC.ca. http://www.cbc.ca/news/canada/story/2013/02/08/pol-patrick-brazeau-senate-arrest.html. Retrieved February 8, 2013.
2. ^ Wayne K. Spear, Brazeau's latest outburst shines a harsh light on the Senate, The National Post, June 27, 2012
3. ^ http://www.abo-peoples.org/affiliates/aaq.html
4. ^ "Senators - Detailed Information". http://www.parl.gc.ca/common/senmemb/senate/isenator_det.asp?senator_id=2805&sortord=N&Language=E&M=M.
5. ^ "Native leader steps down to focus on Senate". CBC News. January 9, 2009. http://www.cbc.ca/cp/national/090109/n0109113A.html. Retrieved 2009-01-13.^{[dead link]}
6. ^ Curry, Bill (January 6, 2009). "New Tory senator faces harassment complaint". The Globe and Mail. http://www.theglobeandmail.com/servlet/story/RTGAM.20090106.wsenate06/BNStory/politics/home.
7. ^ "Controversial new senator quits aboriginal leadership job". CBC News. January 9, 2009. http://www.cbc.ca/canada/story/2009/01/09/brazeau-congress.html.
8. ^ "Brazeau picks Senate over aboriginal advocacy". Globe & Mail - Bill Curry. January 10, 2009. http://www.theglobeandmail.com/servlet/story/LAC.20090110.BRAZEAU10/TPStory/National. Retrieved 2009-01-13.
9. ^ "Statement by Congress of Aboriginal Peoples National Chief Patrick Brazeau on his Appointment to the Senate of Canada, January 9, 2008". Congress of Aboriginal Peoples. January 9, 2009. http://www.abo-peoples.org/media/Statement%20CHIEF%20BRAZEAU.doc. Retrieved 2009-01-13.^{[dead link]}
10. ^ Bill Curry, "Aboriginal group led by Brazeau must return funding", The Globe and Mail, January 19, 2009.
11. ^ Bill Curry, "PM stands by Brazeau as choice for Senate", The Globe and Mail, January 20, 2009.
12. ^ Justin Trudeau scores major upset in Fight for the Cure boxing match over Conservative Senator Patrick Brazeau, National Post, March 31, 2012, retrieved 2012-10-03
13. ^ http://news.nationalpost.com/2012/06/26/senator-patrick-brazeau-calls-journalist-a-bitch-after-she-reports-his-poor-attendance-record/
14. ^ CTVNews.ca Staff (2013 [last update]). "Brazeau used father-in-law's address to get tax exemption | CTV News". ctvnews.ca. http://www.ctvnews.ca/canada/brazeau-used-father-in-law-s-address-to-get-tax-exemption-1.1146468. Retrieved February 7, 2013. "Kitigan Zibi Chief"
15. ^ Hunt, Nevil (January 30, 2013). "Conservative MP and senator belittle Chief Theresa Spence, Idle No More movement". The Toronto Star. http://www.thestar.com/news/canada/2013/01/30/conservative_mp_and_senator_belittle_chief_theresa_spence_idle_no_more_movement.html. Retrieved February 8,2013.
16. ^ iPolitics (2013 [last update]). "Brazeau faces assault, sexual assault charges". ipolitics.ca. http://www.ipolitics.ca/2013/02/08/brazeau-expected-in-court-at-9am-faces-potential-assault-sexual-assault-charges/. Retrieved February 8, 2013. "Gatineau court house"
17. ^ Payton, Laura (2013 [last update]). "Patrick Brazeau may be held overnight after alleged assault - Politics - CBC News". cbc.ca. http://www.cbc.ca/news/politics/story/2013/02/07/pol-brazeau-kicked-out-caucus.html. Retrieved February 7, 2013. "'In light of the serious nature of the events reported today, Senator Brazeau has been removed from the Conservative caucus. As this is a legal matter, I cannot comment further,'"