I Should Not Be Seeing This- Part 2

Recently we wrote about a civil case with implications for regulators. In Continental Bank of Canada v. Continental Currency Exchange Canada Inc., 2022 ONSC 647 (CanLII), https://canlii.ca/t/jm284 the Court expressed concern about one party who had lengthy and undefined access to the privileged legal advice of the other party. The lesson for regulators based on the case is to immediately stop viewing any such legal advice it mistakenly receives and respond appropriately (e.g., disclose the access and find a safe way to separate out and return or destroy the privileged legal advice).

In another recent civil case, the Court awarded significant damages when others had access, without consent, to the intimate images of an individual: Roque v Peters, 2022 MBQB 34 (CanLII), https://canlii.ca/t/jmzcq. The portion of the case of relevance to regulators is that a police force was considering the employment application of a woman who had a sexual relationship with an employee of the force. The spouse of the employee discovered the intimate images and provided them to the police force. Those involved in the hiring process viewed the images, indicating that they were relevant to the suitability of the applicant for the job, including whether she could be subject to blackmail. The job applicant successfully sued the police force for viewing the images.

While the lawsuit was based on provincial law, the principles involved are similar to a provision in the Criminal Code of Canada. The police force asserted that the “public interest” defence for viewing the images applied. The Court indicated that in order to give meaning to the purpose of the legislation the public interest defence had to be interpreted narrowly. Disclosing the images needed to serve the public good including through necessary law enforcement and medical research and treatment. The legitimate goals of the police force could have been achieved had the police force simply considered the existence of the intimate images without actually viewing them.

Regulators are sometimes given intimate images as evidence of professional misconduct. When this occurs, the regulator needs to immediately conduct an analysis of whether it should retain the images, whether they are relevant to its regulatory activities and, if they are relevant, whether the actual images need to be viewed. In those rare cases where the images are relevant and need to be viewed, a careful analysis should be conducted to determine who should view the images and for what purpose.

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