Forgiveness

'The Difficulties of Democratic Mercy' by Aziz Z. Huq comments 

Dean Martha Minow’s wide-ranging and learned Jorde lecture “Forgiveness, Law, and Justice” is characteristic in its unstinting ambition.1 The lecture does not only sweep in complex normative and empirical questions concerning the relationship of legal institutions and rules to a capaciously defined concept of “forgiveness.” It furthermore aspires beyond the sublunary scholarly task of delimiting and describing. Unconfined to the desiccated philological minutia of a Casaubon, Dean Minow instead approaches her topic with dauntless optimism and eyes fixed firmly on empyrean-minded aspiration. To follow her argument is to be apprised of the possibility of a stronger loving world, and to have one’s own parochial and reflexive skepticism—the coin of the realm in the law school workshop—put to shame.

Yet to speak in aspirational terms should not mean dispensing with the question of how a given vision of justice can be attained, or diagnosing with precision the barriers to its realization. So while I share Dean Minow’s large ambitions for law as a catalyst for interpersonal and social reform, my commentary here will focus narrowly on the impediments to that ambition. My aspirations here are modest along several margins. To begin with, my aim is narrow in both conceptual and geographical terms. Although Dean Minow anchors her topic with a parsimonious definition of forgiveness as “a conscious, deliberate decision to forego rightful grounds for grievance against those who have committed a wrong or harm,” her discussion overflows that definition to touch on several related, but nonetheless distinct, normatively infused concepts. In the course of her exegesis, moreover, she ranges through a set of geographically disparate examples that include transitional justice mechanisms in South Africa, Liberia and Sierra Leone; the exercise of prosecutorial discretion in the International Criminal Court; the treatment of former child soldiers; and the discharge of sovereign debt obligations under the so-called “odious debt” doctrine.

Eschewing that conceptual and geographic breadth, I will focus on only one of the concepts that Dean Minow seriatim conjures. I will also invoke solely the vulgar demotic of American law. More specifically, this commentary homes concentrates upon our domestic experience with what Dean Minow’s colleague Carol Steiker terms “legal institutions of mercy” to examine the conditions under which democratic mercy is feasible. These institutions have either wholesale or retail power to mitigate civil or criminal liability. The simple claim that I want to advance is that our own rich experience under the U.S. Constitution suggests that it is extraordinarily difficult to institutionalize such official forbearance—especially on democratic soil—and especially when our political economy, in its superfluously punitive modalities, generates the need for forgiveness. Rather than seeking for redemptive reforms through democratic process, I suggest that the institutional installation of merciful discretion often requires a dispensation from, and limits to, the otherwise democratic order.

My response proceeds in three steps. I begin by offering some analytic clarification by disentangling three distinct concepts at work across Dean Minow’s examples—forgiveness, mercy, and excuse—and by showing how the law can play different functions depending on which of these normative concepts is at stake. I next explain why a domestic focus, as opposed to the international lens that Dean Minow employs, may reap dividends for her project. The third—and most substantial—element of the commentary examines the operation of mercy in the domestic domain with an eye to understanding why its dispensation is so impoverished. I conclude by pointing to the nettlesome trade-offs, most importantly between democracy and mercy, that Dean Minow’s proposals invite—tradeoffs that, in my view, admit of no easy solution.

Misuse

The Queen v Rudd [2015] NTCCA 3 features instances of misuse of information and access, as part of offences relating to the administration of justice and the supply of drugs.

The judgment notes

The respondent trained to be a prison officer and graduated in 2009. She then worked at the Darwin Correctional Centre until her arrest on 14 June 2013. During this period she was a regular user of methylamphetamine, some of which was supplied to her by Philip Kaye. In March 2013 police commenced an operation which targeted Mr Kaye and some of his associates. The operation involved the utilisation of covert surveillance devices, including telephone interceptions and surveillance cameras. This investigation obtained evidence of the respondent’s involvement in the offences the subject of the charges.

The counts were

Count 1  On 25 March 2013 the respondent made a telephone call to a fellow prison officer, Dwayne Reicheldt, and asked him to access the prison database for information about Mr Kaye and another known drug user to determine if they were in custody. She wished to contact them to obtain drugs. They were not in custody. The respondent pleaded guilty to the offence of having procured Mr Reicheldt to unlawfully communicate confidential information. The maximum penalty for this offence is imprisonment for three years.

Count 2 [ On 16 April 2013 the respondent contacted James Hau on behalf of a remand prisoner, Jarrod Davis, and asked him to contact Mr Kaye to organise the supply of cannabis for Mr Davis at the Darwin Correctional Centre. Mr Davis was known to be a member of the Rebels outlaw motorcycle gang. The respondent pleaded guilty to the offence of unlawfully supplying cannabis contrary to the terms of the Misuse of Drugs Act 1990 (NT). The maximum penalty for this offence is imprisonment for five years.

Count 3  On 16 April 2013 the respondent again contacted Mr Hau on behalf of Mr Davis. She outlined the evidence that Mr Hau should give at any hearing of the charges pending against Mr Hau for receiving firearms from Matthew Evans. Mr Evans had stolen firearms from a navy vessel and was supplying those firearms to Mr Hau, who was to give them to Mr Davis in exchange for dangerous drugs. On 24 April 2013 the respondent passed a message to Mr Hau on behalf of Mr Davis thanking him for the information he provided to the court. The respondent pleaded guilty to a charge of attempting to induce a person to give false testimony. The maximum penalty for this offence is imprisonment for seven years.

Count 4  On or about 22 April 2013 the respondent procured a work colleague to access the prison database and obtain the personal mobile telephone number of Richard Carter, who was the President of the Rebels outlaw motorcycle gang. The respondent obtained the number. She pleaded guilty to having procured another to unlawfully communicate confidential information. The maximum penalty for the offence is imprisonment for three years.

Count 5  On 24 April 2013 the respondent told Mr Kaye that investigating police officers had visited the Darwin Correctional Centre and spoke with a female inmate about an assault charge pending against him, made by his ex-partner, Sharna Bromham. On 15 May 2013 the respondent told Mr Kaye that a drug dealing associate of his was on remand at the Darwin Correctional Centre and had been visited by detectives. She said the prisoner had been moved within the prison and that she had “personally offered her services” to him. On 20 May 2013 the respondent received information from a prisoner to the effect that a named “Southern drug dealer” was dealing large quantities of methamphetamine in the Darwin area, and she conveyed that information to Mr Kaye. She pleaded guilty to having unlawfully communicated the confidential information to Mr Kaye. The maximum penalty for this offence is imprisonment for three years.

Count 6 On 23 April and 24 April 2013 the respondent participated in several telephone conversations with Mr Kaye in which she negotiated the purchase of the drug MDMA for her flatmate and work colleague, Page Watteau. She pleaded guilty to unlawfully supplying a dangerous drug. The maximum penalty for this offence is imprisonment for five years.

Count 7 On 30 May and 31 May 2013 Mr Kaye was before the Court of Summary Jurisdiction for a bail application for a charge of aggravated assault upon Ms Bromham. The respondent performed escort duties on those occasions. At the request of Mr Kaye she contacted his business partner, Anthony Heta, and asked him to make contact with Ms Bromham to tell her to withdraw the charge. The respondent pleaded guilty to having attempted to induce a person being called as a witness in a judicial proceeding, to withhold true testimony. The maximum penalty for this offence is imprisonment for seven years.

Count 8 On 31 May 2013 the respondent made contact with Zailey Ainslie, who was Mr Kaye’s partner at the time. Mr Kaye was in the Darwin Correctional Centre on remand. She instructed Ms Ainslie that Mr Kaye wanted to be supplied with cannabis and she described a method by which cannabis could be smuggled into the prison. The following day Ms Ainslie attempted to smuggle a small amount of cannabis into the prison whilst visiting Mr Kaye. The respondent pleaded guilty to the offence of unlawful supply of cannabis. The maximum penalty for the offence is imprisonment for five years.

Count 9 On 11 May 2013 the respondent returned from a trip to Thailand with her partner. Her partner purchased steroids in Thailand and gave them to her to smuggle through customs. The drugs were subsequently found at her premises. She pleaded guilty to unlawful possession of testosterone and stanazol. The maximum penalty for the offence is a fine.

Count 10 On 12 June 2013, whilst off duty, the respondent called Ms Watteau who was working at the prison and had her look at the database to see if Mr Kaye was in custody. She pleaded guilty to having counselled or procured Ms Watteau to unlawfully communicate confidential information. The maximum penalty for the offence is imprisonment for three years.

Counts 11 and 12  On 14 June 2013 the respondent attended at a car park in Winnellie to collect drugs from a motor vehicle that had been parked there. The vehicle belonged to Mr Kaye. She was arrested at the scene and denied any knowledge of drugs. She eventually produced the drugs from within her vagina. A drug analysis revealed that there were 12 tablets containing 3.15 g of MDMA and a powder containing 1.46 g of methylamphetamine. Count 11 related to the unlawful possession of the methylamphetamine and the maximum penalty for this offence is two years imprisonment or a fine. Count 12 related to the unlawful possession of the MDMA and the maximum penalty for this offence is imprisonment for five years.

 The respondent pleaded guilty to each of the charges, being sentenced in November last year.

In relation to counts 1, 4, 5 and 10, offences relating to unlawful communication of confidential information, her Honour imposed an aggregate term of imprisonment for 6 months. In relation to counts 2, 6 and 8, offences relating to drug matters, her Honour imposed an aggregate sentence of imprisonment for 12 months. In relation to counts 3 and 7, offences of attempting to induce a person to withhold true testimony, her Honour imposed an aggregate sentence of imprisonment for 12 months. In relation to count 9, the offence of possessing steroids, the respondent was fined $500. In relation to counts 11 and 12, the offences of possessing methamphetamine and MDMA, she was fined $1000. It was directed that the individual sentences of imprisonment be served cumulatively, giving a total period of imprisonment for two years and six months.

Pricing and the Internet of Things

'Hello Barbie: First They Will Monitor You, Then They Will Discriminate Against You. Perfectly' by Irina D. Manta and David S. Olson argues 

that the evolution of software — and the looming age of the “Internet of Things” — will allow manufacturers of software and of consumer goods to make use of consumer monitoring technologies and restrictive software licenses to more perfectly price discriminate. A number of commentators are urging changes in the law to prevent monitoring and restrictive software licenses.

This Article takes a novel and contrarian view by explaining that the current law surrounding software licensing, which will facilitate more perfect price discrimination as technology evolves, is mostly beneficial. Because the marginal cost of software distribution approaches zero, facilitating more perfect price discrimination is particularly valuable to society because it facilitates much more widespread distribution of software — especially to poorer consumers. Some commentators worry that as more and more consumer goods contain software, manufacturers will use restrictive software licenses in an attempt to control consumers’ abilities to use and resell consumer goods.

This Article explains that this generally will not happen because it would be against the manufacturers’ financial interests. We show that in some cases, manufacturers will indeed restrict use of a product to facilitate their ability to engage in price discrimination. The Article argues that such price discrimination will likely be welfare enhancing and will definitely improve cross-subsidization from rich to poor so that poor consumers can get more products for lower prices.

The Article also demonstrates that the traditional policy reasons to disallow restraints on personal property do not apply to software-enabled devices. We conclude that rather than discouraging the use of restrictive software licenses, the law should adapt to better facilitate such licenses and the more perfect price discrimination that goes with them.

Consultation

The Office of the Australian Information Commissioner has - alongside self-congratulation about the "commitment of a dedicated and skilled group of staff who worked tirelessly" - announced that

The OAIC will release a Privacy management framework during Privacy Awareness Week. This framework will assist entities meet their compliance and accountability requirements in the most efficient manner — through a top-down commitment to embed a culture of privacy and establish robust and effective privacy practices.

PAW is an initiative of the Asia Pacific Privacy Authorities forum (APPA) and is the primary privacy awareness campaign of the Asia Pacific region.

The theme for 2015 is Privacy everyday. Privacy should be an essential component of everyday life, including transactions such as internet banking, social media and online shopping. The theme emphasises the need for organisations to embed privacy practices into business as usual processes, and for individuals and the community to think about how to protect privacy in their everyday lives.

The OAIC has concurrently offered selected entities, on a non-public basis, "an opportunity to comment on a draft" of the Privacy Management Framework. It refers to "selected representatives from private sector organisations and government agencies".

Given recurrent statements by OAIC about the importance of transparency you might expect some disclosure of how the organisation identified the "selected representatives". You would, alas, be disappointed.

The OAIC so far has resisted any disclosure as to how it selects “the selected” and how it determines whether the “representatives” are representative. Privacy everyday, transparency rarely?

Given the OAIC's problematical view of consultation - which it appears to regard as a tiresome matter of form rather than substance and in the past has involved signs of regulatory capture - it is unsurprising to see that if you are one of the fortunate entities chosen for consultation a copy of the draft framework was to be provided on 17 March and that the OAIC "will require comments by COB Tuesday 24 March 2015".

The draft Framework will of course "be provided on a confidential basis".

Transparency and Territoriality

'Transparency and the Performance of Outsourced Government Services' (QOIC/ANZSOG Occasional Paper No. 5, 2015) by Richard Mulgan comments

The outsourcing or contracting out of government services has increased significantly over the last quarter century, into areas that were previously considered to be core government functions. These include the provision of security for government installations, the hiring and firing of public servants, the administration of prisons, the printing of government documents, and the provision of publicly funded social services. The latest OECD survey reports that in 2011, on average across all member countries, 44% of government production costs were consumed by outsourcing, compared with 47% by government employees. On average, outsourcing represented 10% of GDP (OECD 2013). (Outsourcing, it should be remembered, does not necessarily reduce the level of government spending, only the proportion of government spending consumed by government employees.)

Though generally viewed as a source of improved efficiency and effectiveness, outsourcing has always had its critics. The empirical evidence for the cost savings arising from outsourcing has been challenged, particularly the extrapolation from a few well- documented successes such as rubbish collection and cleaning to more complex services (the so-called 20% rule (Domberger et al. 1986; Domberger et al. 1993; Hodge 1996; Hodge 1998)). Some infrastructure projects championed as delivering major savings to taxpayers have failed to do so (e.g. Bloomfield et al. 1998; Greve and Ejersbo 2002; Johnston 2010) and the value-for-money verdict on public-private partnerships (PPPs) remains mixed (Hodge 2010).

Concerns have also been raised about the broader constitutional and political effects of transferring important government functions from the public to the private arena.

Outsourcing has been seen as potentially undermining important democratic values such as accountability and transparency and the wider pursuit of the public interest (Taggart 1993; Minow 2003; Hodge and Coghill 2007).

Government transparency, the subject of this paper, can be valued both for reasons of democratic principle and also instrumentally, as a means of improving the efficiency and effectiveness of government performance (Heald 2006). The paper focuses on the latter, instrumental concerns. It examines whether restrictions on government transparency sometimes associated with outsourcing can be shown to impair the quality of government performance in relation to efficiency and effectiveness and, conversely, whether greater transparency of government outsourcing will lead to better performance.

In this context, it is sometimes useful to distinguish different levels or degrees of government transparency, ranging from ‘internal transparency’, which refers to transparency within the contracting relationship, particularly access by government officials to information held by private contractors; through ‘limited public transparency’, including confidential access by agents of public accountability, such as independent auditors or reviewers, without full public disclosure; to full public transparency which implies availability to any members of the public. While full public disclosure is often the most desirable form of transparency, the lesser stages may be beneficial, both in themselves and as stepping stones to wider publicity.

The paper begins by briefly identifying the main types of outsourcing contract before giving an overview of the main restrictions on transparency caused by moving from in-house provision of public services to outsourcing from private contractors. It then examines arguments and evidence suggesting that lack of transparency relating to various aspects of the contracting process can have a harmful effect on government performance and that, by the same token, increased transparency can lead to positive improvements. Discussion centres on three aspects of outsourcing; value-for-money efficiency, effectiveness of performance, and publicity of performance information. Finally, a number of lessons are drawn out for both government and public managers on how to increase the extent of transparency, and thereby the quality of outsourced performance (see Boxes 1 and 2).

Box 1: Transparency in Outsourcing: Lessons for Governments

Lesson 1: List online details of all government contracts above a certain value (with minimum threshold set at around $10,000).

Lesson 2: Strictly define commercial-in-confidence criteria and provide independent audit of government agency compliance with criteria.

Lesson 3: Maximise access of government auditors to design and implementation of outsourcing contracts.

Lesson 4: Require all major government contracts to adopt open-book accounting among contracting parties.

Lesson 5: Provide access for administrative monitors such as ombudsmen to private contractors delivering services to the public.

Lesson 6: Facilitate Freedom of Information access to information held by private contractors that is relevant to the provision of a publicly funded service.

Box 2: Transparency in Outsourcing: Lessons for Public Managers

Lesson 1: Recognise that public access to information about outsourcing is generally in the public interest.

Lesson 2: Recognise that value-for-money estimates of outsourcing proposals are always analytically contestable and subject to manipulation by vested interests.

Lesson 3: Recognise the value of ongoing consultation not only with contractors but also with affected stakeholders and communities.

Lesson 4: Recognise the value of publishing appropriate performance information.

The relevant evidence is often not conclusive and calls for judgment in weighing its significance. There have been a number of general empirical studies on the relative costs of outsourcing, generalising from reasonably-sized samples of individual cases, for example the research that demonstrated the reduced costs of outsourcing certain easily specified functions (Hodge 1996, 1998). More recently, PPPs have attracted considerable academic attention in relation to their costs (Hodge 2010). But these studies do not directly address the issue of transparency. For example, there is no research formally contrasting the costs or effectiveness of a large number of outsourcing arrangements differentiated by varying degrees of transparency. Indeed, the number and complexity of transparency mechanisms and the limited number of comparable examples make such multivariate research impracticable.

Instead, evidence in this area relies on the analysis and interpretation of individual cases or small sets of cases from which reasonable inferences may be drawn. Some of the case studies focus on the absence of transparency and the adverse effect of such a deficiency on performance, leading to a judgment that greater transparency would have improved performance. Others are more positive in emphasis, seeking to show examples of where the presence of transparency mechanisms has contributed to superior performance. Overall, this evidence can be seen to support a conclusion that improved transparency leads to improved performance. But it is a conclusion that depends more on the qualitative interpretation and judgment of individual cases than on any hard quantitative data.

'The Un-Territoriality of Data' by Jennifer C. Daskal in Yale Law Journal (2015/2016 Forthcoming) comments

(American University - Washington College of Law) has posted ) on SSRN. Here is the abstract: Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorities depend on whether the target is located within the United States or without; and courts’ warrant jurisdiction extends, with limited exceptions, only to the border’s edge. Yet the rise of electronic data challenges territoriality at its core. Territoriality, after all, depends on the ability to define the relevant “here” and “there,” and it presumes that the “here” and “there” have normative significance. The ease and speed with which data travels across borders, the seemingly arbitrary paths it takes, and the physical disconnect between where data is stored and where it is accessed, critically test these foundational premises. Why should either privacy rights or government access to sought-after evidence depend on where a document is stored at any given moment? Conversely, why should State A be permitted to unilaterally access data located in State B, simply because technology allows it to do so, without regard to State B’s rules governing law enforcement access to data held within its borders?

This article tackles these challenges. It explores the unique features of data, and highlights the ways in which data undermines long-standing assumptions about the link between data location and the rights and obligations that ought to apply. Specifically, it argues that a territorial-based Fourth Amendment fails to adequately protect “the people” it is intended to cover. On the flip side, the article warns against the kind of unilateral, extraterritorial law enforcement that electronic data encourages — in which nations compel the production of data located anywhere around the globe, without regard to the sovereign interests of other nation-states.

Geopolitics

'Administrative War' by Mariano-Florentino Cuéllar in (2014) 82(5) George Washington Law Review comments 

This Article takes up an issue with major implications for American administrative law, political development, and security studies: what happened to the American administrative state during and immediately after World War II, and what were the consequences of this period? As the Roosevelt Administration rushed to align domestic affairs with American geostrategic priorities at the outset of World War II, it confronted a host of now largely forgotten legal and organizational challenges. These ranged from a federal income tax base that encompassed less than ten percent of the labor force to unresolved legal questions about the scope of agencies’ power to issue subpoenas. For policymakers, organized interests, and the public, these challenges created uncertainty about the success of mobilization and the scale of the changes that the Administration would pursue. In response, the Administration and its legislative supporters made strategic choices to expand the administrative state without pursuing direct public control of industry. They created agencies such as the War Production Board, the Office of Price Administration, and the Office of Economic Stabilization. Within a few years, these organizations became part of a broader structure for legally sanctioned agency action that facilitated price regulation and consumer rationing, mass taxation on an unprecedented scale, and industrial mobilization and coordination.

By 1944, the American economy was producing forty percent of the world’s armaments, and by 1945, the United States was the wealthiest society in history. Americans had witnessed an evolutionary transformation of their administrative state — involving greater exposure among the public to powerful, adaptive federal agencies of nationwide scope; newly permissive legal doctrines legitimizing the delegation of legislative authority and routine compliance investigations; new arrangements for mass taxation; White House supervision of agency action; and further entrenchment of procedural constraints meant to shape agencies’ weighing of the consequences of official decisions. The resulting framework was defined by high-capacity regulatory agencies and contractual arrangements, but it was also subject to political, ideological, and legal constraints. It reflected an avoidance of radical changes in the American political economy in favor of a circumscribed vision of administrative action relative to private markets. With these features in place, the federal administrative state became a fixture of American life.

Hospitals and privacy in Australia and Canada

Two perspectives on privacy in the health sector ...

The SMH reports that the St Vincent's Hospital group has "banned unauthorised photography on its campuses in a bid to protect the privacy of its patients". A spokeswoman for NSW Health is reported as stating that there are no plans to ban photography in public hospitals.

At St Vincent's

Patients and their visitors will now have to seek permission from staff members before taking photographs in all wards except for the maternity ward at the Mater Hospital on the north shore ....

The policy follows several episodes where patient privacy has been compromised, including two occasions in which the victims of high-profile assaults were filmed – once by a member of the public – and broadcast on television.

In a separate incident, a psychiatric patient published information about other patients and staff on social media.

St Vincent's has indicated that

"We don't want to turn into some draconian campus." "We understand and appreciate that from time to time people really do want to take photographs for all the right reasons and so we just want to have that happen in a controlled environment."

It will accordingly post signs on windows near high-traffic areas warning visitors not to take photographs without authorisation, contingent for example on a nurse drawing a curtain between beds.

The SMH notes that

Psychiatric wards have long been concerned about information posted to the internet by disinhibited or delusional patients.

Psychiatrist Sarah Michael said the scenario arose every few months that patients used the internet to broadcast information about themselves or others without considering the implications. "The 'no photographs' is a good first step, but it still doesn't cover things like what if they tweet things that are inappropriate or put something on Facebook," Dr Michael said. "Once you've put something up there, it's up there."

Hospitals expose themselves to litigation under the NSW Privacy Act should they fail to protect patient privacy. The paparazzi photograph of Mick Jagger's girlfriend Marianne Faithfull lying comatose in St Vincent's Hospital, published in Sydney's Daily Mirror during the 1969 Rolling Stones tour, is the nightmare scenario.

Legal historians might recall Kaye v Robertson [1991] FSR 62.

Meanwhile in Canada we await the results of litigation following Hopkins v. Kay 2015 ONCA 112, in which the Ontario Court of Appeal has held that Hopkins as representative in a class action against data breach involving Peterborough Regional Heath Centre - is able to bring a common law claim for intrusion upon seclusion.

Such a claim was recognised in Jones v. Tsige 2012 ONCA 32, discussed here and in an article in Privacy Law Bulletin.

Peterborough argued that a claim was precluded by the Ontario Personal Health Information Protection Act, with health privacy violations being solely the domain of the province's Information & Privacy Commissioner.

In this instance the Court dismissed Peterborough’s appeal, meaning that patients will be able to sue hospitals and other health information custodian. A health privacy breach will accordingly be addressable in both a civil court case and as the subject of investigation by the privacy commissioner. Peterborough bears the C$24,000 costs of the appeal.

It is alleged that the medical records of 280 patients, including Erkenraadje Wensvoort (representative in class action against Peterborough), were wrongfully accessed between 2011 and 2012. Wensvoort alleges she left an abusive relationship after 51 years of marriage (including hospitalisation at Peterborough) and went into hiding with an unlisted phone number and address. On admission to Peterborough her identity was supposed to be safeguarded, with information only being provided to the staff treating her.

She claims that she suffered psychiatric harm when the hospital revealed that her medical records had been improperly accessed; she worried that her husband had paid a hospital employee in an attempt to find her. (That fear is consistent with coverage of separate litigation by 14,450 patients of the Rouge Valley Health System following allegations that employees sold patient records).

Health sector in peril? Under PHIPA there is a requirement for evidence of 'actual harm', with damages for mental anguish limited to C$10,000. (Compare the quantum with the recent Hammond award in New Zealand.) Damages under common law in Ontario without proof of actual harm, following Jones, are not spectacular. Further, the Court noted that the test from Jones is difficult to satisfy. Under s. 72(5) of the PHIPA the province's Attorney General may commence a prosecution regarding wilful contravention of the Act, punishable by a C$50,000 fine re individuals and C$250,000 for institutions.

In the current judgment the Court emphasised that PHIPA centres on systemic issues that should be addressed through systemic improvements. It noted

the broad discretion conferred on the Commissioner by PHIPA means that complainants would face an expensive and uphill fight on any judicial review challenging a decision not to review or proceed with an individual complaint.  

The Ontario Information & Privacy Commissioner supported the position of the respondent, with the Court  clearly noting comments by the Commissioner.