MBCA on Privacy vs Child Protection

The Manitoba Court of Appeal recently ruled on the right of a child protection agency to request the personal information associated with a subscriber to an IP address.

Child and Family All Nations Coordinated Response Network (ANCR) was contacted by the Winnipeg Police Service (WPS) in February, 2016 who were in turn, informed by Interpol that a convicted sex offender in the United Kingdom may have had contact with someone they believed to be a child in 2012. ANCR asked Shaw Communications to identify the owner of the IP address. Shaw refused without a court order.

The application was first taken up with a Master, who did not have jurisdiction to hear an application as opposed to a motion, and then it went to a judge, who dismissed it, concluding that she did not have the jurisdiction to make the order either.

This decision is significant for its analysis of the interpretation of a statute.

[18] ANCR brought its application pursuant to the QB Rules for a determination of rights based upon the interpretation of the CFS Act and regulations. Rule 14.05(2)(c)(iv) of the QB Rules allows for the determination of rights that depend on the interpretation of any document referred to in the rule, in this case, a statute. The rule does not create jurisdiction, but provides a means to determine the nature and extent, if any,
of jurisdiction that already exists.

Steel, J.A. dismissed the application based on the documentation and evidence, while noting that the child protection agency did indeed have the jurisdiction to make such a request. Also of significance are Beard, J.A.’s concurring reasons.

ANCR v. Shaw Communications Inc. , 2017 MBCA 92

 

A Sign of the Times

[Guest post by Karen Dyck, Executive Director of the Manitoba Law Foundation. Previously published on Slaw.ca.]

A new Practice Direction from Manitoba’s Court of Queen’s Bench reflects increasing acceptance of the fact that litigants without lawyers are no longer an anomaly in civil litigation. The notice sets out that contested motions and applications involving at least one self-representing litigant must be set for a case management conference before a contested hearing takes place. This is already the norm for contested motions in the Family Division of the Court of Queen’s Bench, regardless whether there is a self-represented party, but is new in the Civil Division.

Other than the procedural change, two specific aspects of the Practice Direction stand out:

  1. The rationale for the change in practice is stated as being “To reflect the obligation of a judge to ensure that a self-represented litigant has the opportunity to meaningfully participate in the hearing and has a reasonable opportunity to present his or her case to the best of his or her ability.”
  2. In addition to ensuring that the matter is ready to proceed to a contested hearing, the case management judge is specifically tasked “…to explain the process and to otherwise advise the self-represented litigant what may be expected.”

While the obligation on the judge isn’t new, this statement makes clear the importance of ensuring that litigants without lawyers are able to meaningfully participate in the legal action, whether as plaintiffs or respondents, and further that they have the opportunity to present their position and evidence to the best of their individual ability. This acknowledges both their right to be in the courtroom, representing themselves, as well as the fact that each self-representing litigant comes to the courtroom with varying degrees of ability to present their case.

One effect of this Direction will be to ease the burden on all involved. By placing the responsibility upon the case management judge for explaining the process and otherwise advising the self-represented litigant on what to expect, the hearing judge will be supported in balancing “… the sometimes competing imperatives of helping a litigant who is in need of assistance while maintaining impartiality.” (Child and Family Services of Winnipeg v. J.A. et al., 2004 MBCA 184 at para. 32). This also has the effect of making clear that it is not the responsibility of the lawyer opposite a self-representing litigant to explain the process to the opposing party. And finally, it creates a “safe space” for the self-representing litigant to inform themselves on process and ask questions about what is expected of them in a contested hearing.

While adding another step in the process may in some cases increase costs, if used effectively, these conferences may result in fewer requests for adjournment, more efficient contested hearings and more effective advocacy on the part of the self-representing litigant. That seems like a win-win result all around.

 

New Proclamations

The Government of Manitoba has issued the following proclamations:

The Protecting Children (Information Sharing) Act,  (whole Act), S.M. 2016, c. 17

In force effective September 15, 2017. This Bill authorizes organizations and others who provide services to at-risk and vulnerable children to collect, use and disclose personal information or personal health information about them. This authority is in addition to that already found in The Freedom of Information and Protection of Privacy Act and The Personal Health Information Act.

The Regulated Health Professions Act, (repeal of The Registered Nurses Act and subsections 51(1) and (2), 252(1) and clause 252(2)(b)), S.M. 2009 c. 15. 

In force effective May 31, 2018. This Bill changes the way health professions are regulated in Manitoba.

The Non-Smokers Health Protection Amendment Act (E-Cigarettes) (whole Act), S.M. 2015 c. 36.

In force effective October 1, 2017. This Bill amends The Non-Smokers Health Protection Act by extending its scope to include e-cigarettes.

Free Mandatory Minimum Sentence Monitoring Website

Criminal lawyers take note. The founder behind Rangefindr.ca has developed a freely accessible site monitoring the status of various mandatory minimum sentencing guidelines.

The website it created, called MMS.watch, gives legal professionals a chance to check which mandatory minimum sentences have been challenged or struck down as unconstitutional.

For more information check out this article published in The Lawyer’s Daily

New Edition – Manitoba Law Journal

Just published – Volume 39, Issues 1 and 2 of the Manitoba Law Journal. The theme of this volume is “The Great Transition in Legal Education”. It’s filled with interviews with notable Manitoba legal luminaries, such as former Court of Appeal Justice Charles Huband, former dean of the Manitoba Law School Jack London, Justice Freda Steel and retired University of Manitoba law school librarian John Eaton.

Continue reading “New Edition – Manitoba Law Journal”