Canadian Journal of Law and Technology最新文献

{"title":"Electronic Devices at the Border: The Next Frontier of Canadian Search and Seizure Law?","authors":"R. Currie","doi":"10.2139/SSRN.2812313","DOIUrl":"https://doi.org/10.2139/SSRN.2812313","url":null,"abstract":"Over the last several years the Supreme Court of Canada has developed its jurisprudence regarding the search and seizure of electronic devices, applying s.8 of the Canadian Charter of Rights and Freedoms in such a way as to assert and protect a significant amount of privacy in the devices and their data. Recent cases regarding the search of devices at Canada's borders, however, do not reflect this case law. This is a situation made all the more complex by the more generally attenuated expectation of privacy in the border context, and is worthy of inquiry. Using a pending border case as a leaping-off point, this paper explores how s.8 should be applied to searches of electronic devices in the possession of people entering Canada, concluding that an appropriate analysis would impose more robust privacy protection than has been seen to date. It also examines the issue of whether individuals can be compelled to unlock devices or surrender passwords during border searches.","PeriodicalId":263812,"journal":{"name":"Canadian Journal of Law and Technology","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124581586","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Flying Robots and Privacy in Canada","authors":"Paul D M Holden","doi":"10.2139/SSRN.2571490","DOIUrl":"https://doi.org/10.2139/SSRN.2571490","url":null,"abstract":"Drones have been a hot topic in recent years particularly when used in war and in domestic police operations. Drones have also attracted attention because of high-profile plans to use them for package delivery, among other things. While the glamourous and future uses of drones catch media attention, drones are already being used in the private sector for more mundane purposes including surveying, infrastructure inspection and real estate sales promotion. While the privacy threats of military and police drones are widely discussed, privacy concerns of private drones have attracted much less consideration.This paper looks at the privacy risks of private drones in Canada. It begins with an overview of the uses of private drones and their regulation in Canada. Regulation of drones in Canada is quite permissive and does not address the privacy risks. The paper then presents several privacy theories and a deeper discussion of two problems caused by technology such as drones: data aggregation and erosion of privacy in public. The paper then considers some theoretical and practical legal protections that might be used to protect against drone privacy invasion. The more theoretical include the torts of trespass and nuisance. The more practical include the tort of intrusion upon seclusion and the Personal Information and Electronic Documents Act. The paper concludes that the dominant theories of privacy embedded in Canadian law are not fully prepared for the challenge of drones, though the tort of intrusion upon seclusion holds some promise for the future.","PeriodicalId":263812,"journal":{"name":"Canadian Journal of Law and Technology","volume":"12 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133052298","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"‘‘Records Management Law”—a Necessary Major Field of the Practice of Law","authors":"Ken Chasse","doi":"10.2139/SSRN.2723629","DOIUrl":"https://doi.org/10.2139/SSRN.2723629","url":null,"abstract":"This article outlines the divisions of work of the records management lawyer specialist. Electronic records management technology is sufficiently complex, unregulated, and important to everyday living and to legal proceedings and services, as to make necessary records management law as a specialized field of the practice of law, and the records management lawyer a necessary specialist. Such specialist will work with litigation lawyers and with experts in electronic records management. The current electronic discovery specialist will become the records management lawyer, aiding all uses of electronic records as evidence. Teaching clients to index all significant records so that their lawyers can search their electronic indexes for discovery purposes. That will eliminate the high cost of discovery problems and the need to use predictive coding and other TAR devices.The author has worked with experts in electronic records management for many years. As a result, the serious defects commonly found in electronic records management systems are listed, along with their vulnerable dependence upon millions of lines of software code. The innovations that a specialist records management lawyer will use are outlined. Because of societies’ very heavy dependence upon electronic records management technology, the legal infrastructure necessary to control its use will be as great as that required for motor vehicles. The records management lawyer will have to be part of that legal infrastructure, and records management law will be an important area of the practice of law. It will require a continuing relationship with commercial and institutional clients so as to provide preventive legal services and not just remedial legal services.","PeriodicalId":263812,"journal":{"name":"Canadian Journal of Law and Technology","volume":"119 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122738625","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Technological Neutrality Explained & Applied to CBC v. SODRAC","authors":"Cameron J. Hutchison","doi":"10.2139/SSRN.2533734","DOIUrl":"https://doi.org/10.2139/SSRN.2533734","url":null,"abstract":"The term “technological neutrality” surfaced in the Supreme Court’s 2012 copyright jurisprudence though no one, including the Federal Court of Appeal in CBC v. SODRAC , quite knows exactly what it means. This paper analyzes the principle of technological neutrality as comprising two dimensions: as non-discrimination in that new technologies are to be embraced under the Copyright Act for both copyright holders and users; and as non-interference insofar as sufficiently high thresholds of conduct or activity are required before copyright liability will attach to emerging technologies. It may surprise some that both iterations of this principle (though not so named) are well established in Supreme Court copyright jurisprudence. Once these dimensions are understood, we must then struggle with the issue of its application as a “principle” of copyright law. I argue that principles of law assist interpretation by providing direction in the face of ambiguous or absurd statutory meaning in unusual cases. In other words, principles rationalize the law in a way that strict construction of statutory meaning cannot always accomplish. Principles do not compel specific results but rather are a tool that might augur for a particular interpretation of statutory meaning in a given factual context in order to make the law coherent.The paper explores technological neutrality in the factual context of CBC v. SODRAC, tentatively scheduled for argument before the Supreme Court of Canada in March of 2015. After outlining the history of the case in the first part, the paper concludes with an application of the principle of technological neutrality, as non-interference, to the case. The only result coherent with the Supreme Court’s prior case law is to not treat non-usable or dormant incidental copies as reproductions under the Act. The status of permanent copies that serve a useful and identifiable purpose, e.g. archived copies, is less clear though it would not necessarily create incoherence in the law to recognize them as reproductions.","PeriodicalId":263812,"journal":{"name":"Canadian Journal of Law and Technology","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130684065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Regulating the Cloud: A Comparative Analysis of the Current and Proposed Privacy Frameworks in Canada and the European Union","authors":"David Krebs","doi":"10.2139/SSRN.1898169","DOIUrl":"https://doi.org/10.2139/SSRN.1898169","url":null,"abstract":"Cloud computing is a growing phenomenon and promises greater efficiency and reduced-cost computing. However, some of the basic technological and business-related features of the Cloud are at odds with personal data protection laws. Canada and the European Union share similar core values related to privacy/data protection, and both regions aim to increase their competitiveness regarding cloud computing. Having these two similarities in mind, this paper explores the current legal and stakeholder landscape in Canada and the European Union with respect to cloud computing, data protection and how adoption of the model can be advanced. The analysis shows that neither of the frameworks is entirely compatible with cloud computing in its current application. Canada's legal landscape is slightly more hospitable, but is lacking direction from regulators, while the EU's non-harmonized and restrictive framework presents a challenge for cloud proliferation. Relevant stakeholders have diverging views on how data protection in the Cloud should be approached and 2012 will be a year during which these views will likely be debated in detail, in particular in response to the proposal of the European Commission on a new data protection framework. This paper concludes with distilling four possible options in this regard. Official version available in The Canadian Journal of Law and Technology: (2012) 10 C.J.L.T. 29 (Carswell).","PeriodicalId":263812,"journal":{"name":"Canadian Journal of Law and Technology","volume":"592 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123186402","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Should Scientific Research in the Lead-up to Invention Vitiate Obviousness under the Patented Medicines (Notice of Compliance) Regulations: To Test or Not to Test?","authors":"Ron A. Bouchard","doi":"10.2139/ssrn.958870","DOIUrl":"https://doi.org/10.2139/ssrn.958870","url":null,"abstract":"In Canada, the availability of generic drugs owes its his article is an analysis of case law pertaining to pedigree to compulsory licensing. 1 As part of its perT whether scientific research in the lead-up to invenceived obligations under the North American Free Trade tion should vitiate a finding of obviousness in pharmaAgreement (NAFTA) and the World Trade Organizaceutical litigation under the Patented Medicines (Notice tion’s Agreement on Trade Related aspects of Intellectual of Compliance) Regulations (the ‘‘NOC Regulations’’). Property (TRIPS), Canada repealed its compulsory The NOC Regulations belong to a class of legal instrulicensing regime for pharmaceuticals in favour of ments referred to as ‘‘linkage regulations’’ that tie patent ‘‘ linkage regulations ’’ referred to as the Patented protection for marketed pharmaceuticals to the CanaMedicines (Notice of Compliance) NOC Regulations dian drug approval process. Therefore, the NOC Regula(the ‘‘NOC Regulations’’). 2 The substance and procedure tions control entry of generic drugs into the market and of the NOC Regulations were modelled on analogous access by the public to affordable medication. The issue legislation in the United States. 3 So-called linkage regulaof testing arises out of the complex and inverse relationtions tie patent protection for marketed pharmaceuticals ship between inventiveness and obviousness in patent to the drug approval process, and thus control both entry law such that the lower the threshold for inventive ingeof generic drugs into the Canadian market and access by nuity in the patentability analysis, the higher the Canadians to affordable medication. Under the Canathreshold for parties attacking patents on grounds of dian linkage regulation regime, the typical route for a obviousness. The present analysis demonstrates there is generic pharmaceutical company to obtain market substantial uncertainty in Canadian jurisprudence over access for its product is to attack the relevant brandwhat constitutes the accepted test for obviousness. Some name pharmaceutical company’s patents for being either cases stand for the proposition that no testing whatsoinvalid (on the grounds of, for example, obviousness, ever is allowed, others for the opposite proposition that anticipation, double patenting, and claims broader than some testing is allowed, while still others purport to disclosure) or to claim that its product will not infringe follow the former while actually applying the latter. Hislisted patents. Given that a substantial percentage of the torical cases supporting the ‘‘no testing’’ line of cases cases litigated under linkage regulations in Canada and were analysed and found to offer no strong legal precethe United States involve allegations of invalidity based dent for this approach. It is suggested that courts adopt a on obviousness, 4 the test for obviousness determines, in ‘‘purposive test’’ for obviousness based on Canadian law part, the availability of generic ","PeriodicalId":263812,"journal":{"name":"Canadian Journal of Law and Technology","volume":"95 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133751772","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Back to the Future: Reviving the Use of Video Link Evidence in Canadian Criminal Courts","authors":"Helena Gluzman","doi":"10.2139/ssrn.3132692","DOIUrl":"https://doi.org/10.2139/ssrn.3132692","url":null,"abstract":"Section 714.1 of the Criminal Code of Canada allows for witnesses and victims to testify remotely via video link, within Canada. The legal test embedded within this provision – “appropriate in all the circumstances” – has led to inconsistent application across the country. Some jurists have embraced the flexibility provided by the video link process. Others have expressed reluctance, articulating the position that in-court testimony is to be preferred and permitting the use of video link evidence only in exceptional circumstances. R. v. S.D.L. is the first treatment of 714.1 by an appellate court. The Nova Scotia Court of Appeal has provided a set of clear guiding principles for trial judges. The Court recognized that applications for testimony via video link “should be permitted” so long as they do not negatively impact upon trial fairness or the open court principle. More specifically, where reliability (rather than credibility) is the central issue with respect to evaluating a witness’ evidence, video link applications should routinely be granted. The use of technology in the courtroom can thus contribute to the truth seeking function of the trial process and provide support for vulnerable victims and witnesses who may otherwise face greater personal costs through the process of testimony.","PeriodicalId":263812,"journal":{"name":"Canadian Journal of Law and Technology","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129539653","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}