Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
ICBC Privacy Breaches and Rap Evidence in a Murder Trial
Privacy rights take center stage as the BC Court of Appeal delivers a powerful message to organizations handling sensitive information. When an ICBC employee sold policyholder data to criminal organizations, resulting in targeted arson and shooting attacks against numerous victims, the insurance giant fought tooth and nail to minimize compensation. The Court ultimately upheld a $15,000 award for each affected individual, establishing a crucial precedent that privacy violations cause significant harm even without visible damage.
The ruling recognizes that having your personal details sold to criminals creates genuine suffering, even when physical attacks don't materialize. This landmark decision enforces the principle that employers bear responsibility for their employees' actions when handling sensitive data. For anyone concerned about their digital privacy, this case represents a significant step toward protecting personal information in an increasingly connected world.
Meanwhile, the courts navigate the complex territory where art meets evidence. A murder trial in Surrey broke new ground by allowing expert testimony on drill rap—a subgenre where violent lyrics are often performative rather than autobiographical. The defence successfully argued that without understanding this cultural context, jurors might mistakenly interpret rap about violence as literal confessions. This raises fascinating questions about how we evaluate artistic expression in criminal proceedings and acknowledges potential racial biases in interpreting such content.
In Victoria, justice persisted despite a defendant's violent refusal to participate in his own trial. Charged with beating someone with their own wheelchair during a robbery, the accused fought with sheriffs and refused to enter the courtroom. The judge's ruling that this behaviour constituted "absconding" demonstrates how our legal system adapts to maintain functionality even when faced with extreme disruption.
These cases highlight how Canadian courts are evolving to address modern challenges while upholding fundamental principles of justice. Have you ever wondered how much your privacy is actually worth in the eyes of the law? This week's developments provide some compelling answers.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment, joined as always by barrister and solicitor with Mulligan Defence Lawyers. It's Michael Mulligan, with Legally Speaking. I believe that I brought Michael up on the phone line. Michael, are you able to hear us?
Michael Mulligan:I sure can. It's always great to be here, I guess now virtually in Esquimalt.
Adam Stirling:You are, you are.
Michael Mulligan:I'm relieved I didn't hear the sort of hum of the phone line that I normally hear when I bring you online with this new crisp technology. So my heart sank just for a moment there, but I'm relieved to hear your voice.
Adam Stirling:It's always good. The downtown hum is gone. It is, it is. We have some interesting items on the agenda this week. I'm reading here it says the BC Court of Appeal upholds a class action award against ICBC. And you've done a lot of work in terms of educating us how personal injury claims work, how the Insurance Corporation of British Columbia used to work, versus how it works now. What's the story here?
Michael Mulligan:Well, this is not a good fact pattern. This is a fact, the fact pattern. We've talked about it before in a different context, but ICBC had an employee who for several years was selling private information about policyholders to a criminal organization and, in particular, the criminal organization was purchasing information about policyholders that were associated with the Justice Centre, which would train like police officers and so on, and as a result of this information being sold, the criminal organization wound up engaging in I think it was 45 targeted arson and shooting attacks, going and lighting people's houses on fire or firing guns at them, and not all of the people who had their information sold by this ICBC employee wound up being the actual victim of a physical attack like arson on their house or gunfire. It was some 78 policyholders had their information sold. Only 45 of them had that kind of targeted attack occur. Obviously terrible. That all produced a class action claim based on breaches of the Privacy Act. In British Columbia you have a Privacy Act and that ultimately got certified. It was described as a really hard-fought legal action. Icbc opposed it from the get-go, on every possible ground. Ultimately, the claim was certified and it was successful, and the legal issue that then arose, which just got answered on an appeal.
Michael Mulligan:The Court of Appeal was well, how much should the damages be for the people who were not subject to their house being lit on fire, or there was no bullet hole to be patched up right? What is the damage, what is the harm and how should that be compensated? If you're just one of the 78 people who didn't get, you know, wasn't subject to a physical attack, and one of the reasons that's interesting from a legal perspective is that civil claims of that kind have this concept of what's called a tort. Like a tort is like a civil wrong right, which is different from like a criminal charge right. Some activity could be both criminal and be a civil tort, but civil torts. Examples of them would include things like defamation, false imprisonment, battery, these kinds of terms, some of which have a criminal overlap, but not always.
Michael Mulligan:Now, one of the things about a tort and when you can sue for a tort or a civil wrong is ordinarily one of the things that has to exist for there to be a claim is there has to be usually some kind of loss, like what were my damages right? Because in a civil context what you can get is money, and if there's no damages and no money to be awarded. Well, there isn't really much basis for a claim right. And so the Privacy Act in British Columbia, the very first section of it, specifies that it is a tort actionable without proof of damage for a person willfully and without a claim of right to violate the privacy of another. That's how the whole act starts. So it creates this statutory tort of a breach of the Privacy Act without proof of damages, which then raises the question of well, what do I give you as the judge?
Michael Mulligan:Right, and here ICBC's eventual position.
Michael Mulligan:After they didn't succeed in preventing the class action and so on, their position was well, for people that weren't firebombed or shot at, really they should only get a nominal amount of money, and ICBC said that should be no more than $500, just for having your information sold to the gang by the ICBC employee.
Michael Mulligan:Now the trial judge didn't accept that and ultimately the trial judge awarded $15,000 in what are referred to as general damages to all these people, just for the basis that, hey, their information got stolen and sold to the gang, and that's separate from the head of.
Michael Mulligan:Damages could also be awarded to a subclass of people who actually had their house lit on fire or whatever they might be entitled to.
Michael Mulligan:More like okay, I need to have my garage door repaired or I have to have the company come and fill the bullet holes, but ICBC didn't like the award of $15,000 to all 78 of these people who had their information stolen, and so that's the issue that wound up going to the Court of Appeal, and the Court of Appeal looked at various other circumstances in which there are damages awarded for torts and other related things. Like they looked at, for example, sometimes there are damages awarded for things like a constitutional remedy right. The Constitution provides that a judge can impose or provide a remedy for a constitutional breach, like, for example, if you had somebody whose rights were violated in some way, one option would be money in compensation. And another thing the Court of Appeal looked at and I should say this is unusual there are some torts that don't require proof of a specific loss, like one of the examples of that would be the tort of trespass right.
Michael Mulligan:And the idea there is that you know, clearly, if somebody like trespassed by you know doing donuts on your lawn or something in their car, yeah, that could be a trespass and you might damage like I had to get my whole lawn fixed right.
Michael Mulligan:But what about the person who's just like creeping through your garden? Or somebody who just comes and like pitches a tent in your front yard or something right, and doesn't break anything? Well, torts like that are sort of there are in a category where there can be damages awarded even if there is no actual damage to point to. Like you can't say like hey, you left tire tracks in my yard when you drove across it and otherwise you can see why that would be. Otherwise, what does it mean to have property if anyone can just come and pitch a tent on it or come and hang out in your living room without breaking anything? That's not acceptable. And so those were some of the things that the Court of Appeal looked at when deciding. Well, how should this be handled? For that category of people who had their information stolen but not actual harm, inadvertent or superficial, transient and trivial it might be appropriate to award some small amount, like 500 bucks. Like hey, try to keep that information private, be more careful, and that might be appropriate, for example, in this digital world where we all have all of our information sitting on company servers and so on. Right, you want to create some incentive to like do your best to keep that reasonably secure. Otherwise, if the amount that the damages that could be awarded was $5 or something you know, amazon or whoever would have no particular incentive to do much to keep your credit card or other data private. So there has to be something for that.
Michael Mulligan:But the Court of Appeal pointed out and the trial judge had the same view of it that when you have a breach which is serious like this one, deliberate and it was done for an improper purpose, like for financial gain, to sell your information to criminals, something more than $500 is required.
Michael Mulligan:And so the Court of Appeal did say that well, you know there's lots of deference to judges' decisions on these things and did say that, well, $15,000 might be towards the upper end of the kind of damages that could be awarded for a serious breach where there was no specific harm that you could point to, that there was nothing wrong with that award and it was appropriate, and so it was upheld.
Michael Mulligan:And so it's a really important decision, because it's sort of the seminal case in BC dealing with what kind of damages can be awarded when you can't point to a specific thing, and I, in my view, that's good, because that's kind of the nature of what a privacy consideration would be right.
Michael Mulligan:I mean, if I tell you that somebody's just sold your personal information who doesn't like you to a gang, even if the gang hasn't yet showed up at your house, there's some damage that's occurred there, right, you're probably going to be tossing and turning and worried about that, and even if you're a stoic person and not, the harms kind of occurred, right. And so that's the message from the court of appeal. And even though ICBC did it looks like, just virtually everything they could to avoid all of this, they are going to eventually, after many years of litigation and fighting it, going to need to pay, and so hopefully they're the messages to make sure that you keep information private. And also the other underlying premise here is that employers have some responsibility to supervise their employees, and so even though it was an ICBC employee that was selling the money to the gang, icbc is on the hook for it, and so that's the very latest from the Court of Appeal on privacy and ICBC.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers, legally speaking. We'll continue on CFAX 1070 right after this, legally speaking on CFAX 1070 with Michael Mulligan from Mulligan Defense Lawyers, michael up next on our agenda. I'm reading it says rap music expert qualified to testify at a murder trial.
Michael Mulligan:You don't get that a lot, do you I?
Adam Stirling:was going to say a rap music expert.
Michael Mulligan:So this is a trial. It's a first degree murder trial that's going on right now in Surrey. So it's live. It's a this was a voir dire decision, so like a decision about a legal point that's going. It was just made in the midst of the trial and it's a really interesting one in this sense. It's a first degree murder charge. The person who's charged with murder is in custody.
Michael Mulligan:The person who's charged with murder is in custody, and the evidence that the Crown is relying upon includes things like rap songs that this person has sung, including rap songs that were recorded when he was rapping, apparently on the phone from jail, and then other things like social media posts dealing with this person's rap music. And so, first of all, there was a previous decision, which the judge is cryptically referring to here in order to, I suppose, ensure the trial is fair because it's not over. It's a jury trial, but the judge made a decision that he ruled evidence that had to do with quote. A decision that he ruled evidence that had to do with quote discreditable conduct was going to be admissible at the behest of the crown, including these things, like these jail phone calls and rap lyrics. Now, that, first of all, is unusual, generally discreditable conduct evidence isn't really the basis of a criminal charge. Right, we try people for specific crimes, not being a bad person generally, but it sounds like here it might have had that element, but also, it would appear, the Crown's relying upon things this guy was wrapping to be somehow admissions of the murder. Now the defense has responded to that by an application to call a fellow who is described as an assistant professor of race and media at the University of South Carolina in the School of Journalism and Mass Communication, about this particular kind of what's described as drill music, a subgenre of rap. Music which was described as drill rap stemming from. It's a subgenre of gangster rap which has its origins in Chicago, but it's also present in other places Toronto and other places in Canada.
Michael Mulligan:And so first of all, in a criminal trial, the starting point is that people can't just show up and offer their opinions about things right. Witnesses generally are proven to show up and testify about things they saw or did like facts right, and what to make of those facts is generally an issue for the judge or the jury, whoever the trier of fact right. Issue for the judge or the jury, whoever the trier of fact right. But we have an exception to that, where we allow expert evidence which really is like an opinion. You know it's an opinion about, well, what does this mean, right? What does this you know, dna in the blood mean, or something, right? And in order to do that, the party wanting to call the expert, they have the burden of showing that that should be permitted, because presumptively you can't call people to offer their just opinion.
Michael Mulligan:And so there are a series of things that they would have to establish First of all, that the evidence is relevant to an issue in the trial, and that one of the next critical parts here is it's got to be necessary to assist the trier effect. And so they would look at something like is this something that sort of ordinary people could sort out on their own right, in which case you don't need an expert to help you along? That's kind of like that's why we have a jury, you know. But is it something that's kind of specialized? Without expert assistance, you know, ordinary person might not be able to tell you the you know history and relevance and so on of this kind of music and how that might relate to what these lyrics were. And then there's also an issue about whether there's any other exclusionary rule. Is it particularly prejudicial? Is any potential prejudice more significant than the value it might bring? And then, finally, is this a qualified person? And so the Crown was opposing this professor testifying, and so the judge had to hear evidence about what he would have to say and why and how this might relate to what was going on there. And so to that end, the defense provided kind of a will say here's what he would be saying, and in fact he testified on the voir dire to be asked questions about that dear to be asked questions about that. And here what the professor would be testifying about included things like this type of music and what's included in it in terms of things like the lyrics in this kind of drill rap are often, for example, in the professor's view, involve things which are expressed in the first person, even if the performer might not have experienced them themselves.
Michael Mulligan:And also that lyrics often involve in that kind of music the commission of criminal activity, and sometimes they're compilations or fabrications, not always real. And the professor's view was that people involved in that genre are often involved in what the professor referred to as clout chasing, which described as a defined as a thirst for attention, manifesting itself in lyrics or drill or gangster rap, being self aggrandizing and often trying to portray violence and so on as part of their persona, which can not only be in the music but on social media relating to it. Really interesting in the context of this particular allegation, right, and so the essence of what the professor looks like has to say is people that are drill rap artists will put on a persona in the effort of clout chasing, claiming in their lyrics that they were the person involved in often violent criminal activity, when in fact they may not have been just part of this genre.
Adam Stirling:Yeah.
Michael Mulligan:And the professor also pointed out that in their view there were some racial elements to it in the sense that in the professor also pointed out that in their view there were some racial elements to it in the sense that in the professor's view, when some, for example, filmmakers, might be making films about violent activity, it's not assumed that they were in fact involved in that themselves. You know what I mean. Like people don't think, oh my God, quentin Tarantino must have been, you know, murdering somebody in a car, right. And so there was also that element of sort of whether there's some sort of racial element to how those kind of narratives are portrayed. And so that's the really interesting fact pattern the judge had to sort out. And ultimately the judge concluded that it is appropriate to call, to allow the defense to call this evidence that without that kind of expert interpretation of, like what people who are real rap artists do, with the fact that not everything they say they're doing in fact that they do, a jury might be left with the impression that if somebody's rapping about killing somebody, they might literally mean that they killed somebody. That may not be a safe conclusion, and particularly important where they in fact part of what's going on here is in fact rapping on the prison phone. So really interesting. That's the decision.
Michael Mulligan:The trial will now get back underway and the jury will get to hear the evidence from Dr Evans about drill rap and what the jury ought to make of that in terms of the rapping on the prison phone and whether somebody saying that they're killing somebody really means they killed somebody or whether that just means the person's involved in an effort to clout chase, to get more street cred in the gangster drill rap subgenre, including on their social media, and so we'll have to keep an eye on what happens in Surrey. Get more street cred in the gangster drill rap subgenre, including on their social media, and so we'll have to keep an eye on what happens in Surrey and whether the rapper in fact winds up in prison or whether he winds up on some billboard hit chart somewhere. So that's the latest on the gangster drill rap expert evidence in a murder trial going on right now in BC.
Adam Stirling:All right, michael Mulligan. You and I have 90 seconds left. How shall we spend them?
Michael Mulligan:Sure. Final case I think we summed up briefly it's a Victoria case. It's a really awful one. It was a man who was charged with robbery for robbing and beating a man with his own wheelchair and then robbing him of his guitar and various other things.
Michael Mulligan:So that trial recently concluded, and the issue in the trial was identification. And the reason there was an identification issue is, even though there was a video of the beating and robbery and pictures taken of the person, the person who was robbed could not identify the person who did it, nor could a witness who observed it, and so the case was going to trial. On an ID issue, things started to go off the rails, though. The accused was who was held in custody not surprisingly, I guess, given that fact pattern Test showed up quietly and sat there on day one, but on day two, uh, when there was some delay and the complainant showing up to testify refused to come back into the courtroom, became violent, was fighting with the sheriffs, the sheriffs were trying to wrestle him back in there and the man was like spitting on them and terrible, right yeah you have some sympathy for the sheriffsiffs, and so the judge had to say well, what do we do with this?
Michael Mulligan:And first of all they tried putting the man in a room with a video so he could watch but not disrupt the court proceedings. But the sheriffs were concerned that he was going to use the electronic equipment to harm them or potentially someone else, and so that didn't work out. And so ultimately what the judge did is she used a provision of the criminal code 475 that deals with the idea of a person absconding from their trial, and usually the absconder is somebody like running away. But this guy was in the courthouse just fighting, not come back into the courtroom. Ultimately she found that did constitute absconding. And if you do abscond in that way, you've given up your right to be present at your trial, Because the starting point is you've got a right to be there, it's your trial. But if you were doing that you've kind of waived that.
Michael Mulligan:The judge had to then sort out whether to draw an adverse inference from the fact of the absconding, Because that's permitted in a subsection of the provision dealing with absconding. If you run away from your trial, the judge could draw an inference that it's more likely you committed the crime. She declined to do that, but then, after reviewing all the evidence, including evidence that this man was found with the stolen guitar wearing a distinctive jacket, a short time after the robbery occurred, she was well satisfied that this was the man who committed the robbery, despite the fact that the man couldn't identify him. And so, despite the absconding spitting, fighting and not coming back into the courtroom, he's been found guilty, and so now it'll be on to the judge to sort out what sentence do you impose for the robbery and beating of a man with his own wheelchair? And so I imagine that's not going to go well for this fellow. But that's the latest in Victoria in the Supreme Court for the absconding robber.
Adam Stirling:Michael Mulligan. Second half of our second hour on a Thursday, legally speaking Pleasure, as always.
Michael Mulligan:Thanks so much. Always great to be here. Hope you have a great day and enjoy the new digs.
Adam Stirling:All right, thanks so much. We'll talk soon.