Join student editor Rachel Nirenberg as she sits down with Professor Diana Ginn of the Schulich School of Law to discuss her article, “Pluralism, Autonomy and Resistance: A Canadian Perspective on Resolving Conflicts Between Freedom of Religion and LGBTQ Rights” and the Supreme Court’s decision in Law Society of British Columbia v Trinity Western University.
DLJ Podcast – Ep 33 – David Sandomierski – Cultivating Versatility
Join student editor, Rebecca, and Western Faculty of Law Professor, David Sandomierski, as they discuss David’s DLJ article “Cultivating Versatility: The Multiple Foundations of the Law School’s Public Mission.”
David and Rebecca discuss how the commitment to the rule of law and legal rationality, an emphasis on multiple legal processes, and an appreciation for legal pluralism can act as pillars to cultivate a more versatile law school experience.
DLJ Podcast – Ep 32 – Kieran Simpson – International Law Application to Transboundary Pollution
Join student editor Jonfranco Monaco as he sits down with third-year law student Kieran Simpson to discuss Kieran’s recently published article, “International Law Application to Transboundary Pollution: Solutions to Mitigate Mining Contamination in the Elk-Kootenai River Watershed.”
Jonfranco and Kieran discuss the issue of transboundary pollution caused by Canadian mining corporations, and the legal and policy implications therein. The conversation concludes with a forward-looking word on what Kieran hopes policy makers and stakeholders take away from his research, and potential solutions to this issue moving forward.
DLJ Podcast – Ep 31 – Olga Koubrak – Protecting the Caribbean Sawfish
Student editor Patrick Sheppard sits down with Professor Olga Koubrak of the Schulich School of Law to discuss her work on the legal frameworks to protect sawfish in the Caribbean. Olga is the author of a 2018 paper titled “A Future for a Forgotten Predator: An Assessment of International Legal Frameworks for Protection and Recovery of the Caribbean Sawfishes,” and co-author of the more recent 2022 article titled “Strengthening Marine Species Protections in Cuba: A Case Study on the Critically Endangered Smalltooth Sawfish.”
Patrick and Olga discuss the sawfish, means of protecting the animal domestically and internationally, problems in enforcement and international cooperation, and how the public perception of an animal affects how it is protected by authorities. To learn more about Olga and her work, check out her website at www.sealifelaw.org.
Chasing a Spectre
Comments on the matter of self-induced intoxication, including self-induced extreme intoxication, in the context of criminal law, accompanying remarks to the Senate Standing Committee on Legal and Constitutional Affairs on Thursday, February 2, 2023.
By: Professor Steve Coughlan, Schulich School of Law.
Video of Professor Coughlan’s remarks can be viewed on the Senate website. His comments begin at 12:22:10 in the video.
On May 13, 2022, in R v Brown, 2022 SCC 18, the Supreme Court of Canada struck down section 33.1 of the Criminal Code, which removed the defence of intoxication akin to automatism in the case of violent offences. On June 23, 2022, Parliament approved a new version of section 33.1. Although approving that new law, the Senate simultaneously passed a motion that “the Standing Senate Committee on Legal and Constitutional Affairs be authorized to examine and report on the matter of self-induced intoxication, including self-induced extreme intoxication, in the context of criminal law, including in relation to section 33.1 of the Criminal Code.” I was invited to speak to the Committee on the topic, and was asked to prepare speaking notes to assist with simultaneous translation: these are those notes.
I would like to thank the Committee for the invitation to speak to you on this issue, and also for your flexibility around scheduling—I know you are all busy people, and I appreciate the opportunity to speak with you.
Let me start with the observation that the pandemic, and vaccine hesitancy, should have taught us a lesson: without a strong reason not to do so, we ought to rely on the scientific expertise of others who know more about a subject than we do. I say that because, in my experience, there’s a great deal of skepticism about “automatism” and “intoxication akin to automatism” out there: skepticism over whether they are conditions which truly exist, or whether they are just ruses, deceptions, used by guilty people to try to avoid criminal liability. I’m not a neurologist, or a psychiatrist, or anyone with expertise in the fields that would tell me whether they are real phenomena. But the experts say it is, and our courts have accepted it is, and that obliges us to take the conditions seriously. It is perfectly appropriate for a court to be skeptical about any individual’s claim to be in a state of intoxication akin to automatism, but legislation about how to proceed when such claims are established should not be tainted by skepticism.
You have heard from many people on this issue, presenting from many perspectives. My comments will certainly come at the issue from a legalistic perspective, I hope informed by sensible policy considerations. I apologize in advance if some of the things I say are basic and things you obviously already know, but it will be useful to rehearse some basic principles in order to explain my view.
The version of section 33.1 which was enacted in June of last year allows for a person to be convicted of an offence despite the lack of two things: general intent and voluntariness. This was enacted in response to the Supreme Court decision in Brown, finding problems with the way the former section 33.1 dealt with general intent and voluntariness. I will deal with each of those in turn. Briefly, my argument will be that the changed version solves the first problem but not the second.
To say that a person “didn’t have general intent” is to say something like they “didn’t intend to apply force” or “didn’t intend for the building to burn down” or “didn’t intend the window to break” or “didn’t intend to take someone else’s property.” Allowing for a person to be convicted without such general intent is not necessarily a big deal. Most offences are based on subjective fault—you aren’t guilty unless you did know the goods were stolen—but sometimes we depart from that. We have crimes based on objective fault—on negligence—like dangerous operation of a conveyance, or criminal negligence. There’s no fundamental problem with that, barring a few offences where the Charter requires that there must be subjective fault. But generally, there’s no problem with an offence having objective fault.
Where there is a problem is when an offence has no fault elements—what is called “absolute liability”—where we say to an accused “you did it, and we don’t care whether you intended to or even whether you took reasonable precautions to stop it: all we care is that you did it.” Again, it’s not that our justice system never does that—speeding is the most straightforward example. We don’t care whether a person knew they were speeding, or whether they could have known they were speeding—we just care that they were. I say that’s a problem, and the Court has said that it’s a problem, because it is fundamentally unfair. Nonetheless, we allow it—but only in a very limited range of situations. As a general proposition, getting a ticket for speeding is not a big deal. It generally has no long-term consequences or major impact on a person’s life, so although arguably it is a little unfair to the individual to convict them in the absence of any guilty mental state, that concern is outweighed by the general societal interest in reducing speeding. On the other hand, the Supreme Court has said, where it’s not just a matter of getting a ticket, of paying a fine—where the penalty could include going to jail—well, then it’s not ok to have no fault elements, to have absolute liability.
I think the law should, as much as possible, intuitively make sense and correspond to our feelings about what’s fair and what’s not, and I think that that approach does. It amounts to saying “where the stakes are low, the system can be a little more relaxed, but where the stakes are high, we have to be rigorous about being fair.” Most importantly, it’s saying “don’t let the low-stakes approach apply in high-stakes situations.”
That was, as you well know, one of the problems with the version of section 33.1 that was struck down in Brown. The old version said that a person without the general intent to commit the offence was still guilty if “their behaviour … interferes or threatens to interfere with the bodily integrity of another person.” It took out any requirement for a fault element, for any kind of blameworthy state of mind, and said the person was still guilty: it treated the offence as absolute liability, even in the case of serious criminal offences like sexual assault. And so, fundamentally, it used the low-stakes approach in high-stakes situations, which was properly seen as a problem.
What the new wording of section 33.1 does, in requiring “departed markedly from the standard of care expected of a reasonable person in the circumstances,” is to insist on the presence of a fault element—yes, an objective fault element, but some fault element. And as I said, that’s generally ok—objective fault will do for all but a few offences. That seems to me to mean that changing “interfered with bodily integrity”—a fact—to “departed markedly from the standard of care”—a fault element—is not only a good idea, but a constitutionally sufficient solution to the fault element problem that the SCC identified in Brown. It will no longer be true that a person could be convicted in the absence of any fault element.
But that wasn’t the only problem identified in Brown—or earlier, in Daviault. The other problem relates to involuntariness. And to go back to my point about the law intuitively making sense, I think the term “involuntariness” is distracting and potentially misleading. Imagine that someone who is much physically stronger than me takes my hand, forces a gun into it, and then forces my finger to pull the trigger back, thereby shooting my neighbour. If I were asked “why did you shoot your neighbour?,” I wouldn’t reply “it was involuntary,” I would reply “I didn’t, he did.” If someone ties me up and throws me out a window, I don’t answer the question “why did you jump out the window” by saying “I lacked voluntariness”: I just say “I didn’t.” We are all perfectly clear on the distinction between my body doing something, and me doing it.
When section 33.1 says that a person can be convicted despite a lack of voluntariness, what it’s saying is, fundamentally, that they can be convicted of the offence even though they didn’t do it. Literally, physically, didn’t do it. Their body was involved, sure, but it is an accurate statement to say “they didn’t do it.” Convicting such a person nonetheless should be seen as a big deal! This was recognized as a problem in Daviault, and recognized as a problem in Brown. It’s another major reason the Supreme Court had a problem with the rules which allowed this.
But—and this is a crucial thing—the changes to section 33.1 do nothing about this issue. They still allow an accused to be guilty of the underlying offence—the thing they didn’t do—if they departed markedly from the standard of care of a reasonable person back at the earlier time, when they became intoxicated. Adding in a “marked departure” requirement fixes the general intent issue, but it ignores that there was also an involuntariness issue.
I want to say “let’s try an analogy,” but what I will present is pretty close to literally the same situation as section 33.1 now creates. Let’s say someone takes my keys, locks me out of my office and while in my office commits an offence in there. Or alternatively, someone gets my log-in information, logs in to my account at the university, or the Senate, or wherever I work, and while using my account commits an offence.
It’s probably legitimate to say to me “you should have been more careful with your keys/log-in information.” It’s probably legitimate to say to me “you were negligent in caring for your keys/log-in information, and so we will hold you responsible for that.” But it is NOT legitimate to say “because the person committed a murder while in your office, you are guilty of murder,” or “because the person uttered threats through your account, you are guilty of uttering threats.” Even if I’m guilty of something, I ought to be able to say “but I didn’t do that!”
However, that’s exactly what section 33.1 prevents an accused from saying. The “marked departure” requirement amounts to “you should have been more careful,” but other wording of section 33.1, that the accused “nonetheless commits the offence” amounts to “whatever happened, theft of office supplies or sexual assault, pirating a movie or downloading child pornography, you’re guilty of that.” That doesn’t make sense. What we could appropriately find the accused responsible for is the failure to meet the reasonable person standard in their use of an intoxicant, but the way in which section 33.1 does that is to find them guilty of something else entirely, typically something more serious. To relate this back to the speeding example earlier, it creates the risk of using a low-stakes approach in a high-stakes situation.
This is, of course precisely why the Courts talk, in both Daviault and Brown, about alternatives which find the accused guilty of something other than the underlying offence. There was discussion of the possibility, at the Ontario Court of Appeal level in Brown, of a stand-alone offence of criminal intoxication. Also, this approach had been discussed before the original section 33.1 was put in the Code, but as noted in Brown the Minister of Justice at the time felt it created a “drunkenness discount.” That presumes, of course, that the penalty for the “negligent intoxication” offence is lower than whatever offence the person is charged with, which isn’t necessarily true.
It also presumes that there is only one “negligent intoxication” offence, but that needn’t be the case. A very common model for offences is that “X is an offence, X causing bodily harm is a more serious offence, and X causing death is even more serious.” There’s no reason a stand-alone offence could not follow that pattern, since it is Charter-compliant to vary the penalty for an offence based on the actual harm which is caused.
I recognize that the analogy to losing control over a room or a laptop will be unpersuasive to some, but I come back there to my starting point—that we have to not be skeptical about scientific expertise. To some, it might feel that “a person’s body acting while in a state of extreme intoxication” is not really involuntariness in the sense of having a gun forced in your hand or being locked out of your office. But if “intoxication akin to automatism” is, as a matter of science, a real thing, then it is exactly analogous. If I am in such a state, then something other than me has the keys, or the log-in information, to my brain. If we can’t get past the feeling that the analogy is wrong, then confront the science: if the science is wrong, don’t do anything about this issue at all! But if there is a need, then we should take it seriously.
Concluding words. The concern I’m raising over the involuntariness issue could be seen as a focus on conceptual purity, and undoubtedly conceptual purity sometimes has to give way to practicality in the criminal law. But there has to genuinely be some practicality at stake! No one challenges that the circumstances in which this type of extreme intoxication will arise are extraordinarily rare. Beyond that, as noted in Daviault, there are obvious difficulties in showing that it is true even when it is true. When briefly available, the occasions on which it was pleaded were negligible, and it did not succeed in most of those. There’s a reason it took several decades for section 33.1 to end up in front of the Supreme Court. Even if there could be seen to be a problem, it is a small-scale one, certainly not one that warranted a rush to legislation, where a new law was first enacted, and then the issue of whether there was a need for the law is considered.
DLJ Podcast – Ep 30 – Danardo Jones – Anchoring Lifeline Criminal Jurisprudence
Join student editor, Nicole, and Danardo Jones, an assistant law professor at the University of Windsor, as they explore Danardo’s upcoming DLJ article, “Anchoring Lifeline Criminal Jurisprudence: Making the Leap from Theory to Critical Race-Inspired Jurisprudence.”
Danardo and Nicole discuss critical race theory in lawyering, the implementation of lifeline jurisprudence in criminal law, and the role of legal educators in this pursuit.
Danardo’s Faculty Profile: www.uwindsor.ca/law/Danardo-Jones
DLJ Podcast – Ep 29 – Nayha Acharya – Mediation as an Alternative to Litigation
Join student editor, Danielle, and Nayha Acharya, an assistant professor at the Schulich School of Law, as they explore the topic of mediation as an alternative to litigation in a civil justice system.
Danielle and Nayha discuss arguments about mediation made in two of Nayha’s recent papers: “Mediation, the Rule of Law, and Dialogue,” published in the Queen’s Law Journal; and “Exploring the Role of Mandatory Mediation in Civil Justice,” which is forthcoming in the Alberta Law Review.
Nayha’s Faculty Profile: Nayha Acharya – Schulich School of Law – Dalhousie University
Nayha’s Bepress Profile: SelectedWorks – Nayha Acharya (bepress.com)
Spreadsheets Are Necessary for Equitable Justice
By: Jon Khan, Osgoode Hall Law School.
For more on this topic, see Jon’s article in issue 45:2 of the Dalhousie Law Journal.
We often hear that the legal system was designed by lawyers for lawyers or by legal actors for legal actors. But I think that this common idea is wrong.
No one would intentionally “design” a legal system to operate like Canada’s currently does.
Really, most of what we do in Canada’s legal system organically evolved. When change is needed, reformers don’t use a comprehensive “design” process. Their method relies on central values, traditions, anecdotes, and intuitions.
How I’m using the word design and why Canada’s legal system largely lacks it
To be clear, I’m using the word “design” in the technical sense—like, for example, computer designers do: “to create, fashion, execute, or construct according to plan.” Those designers couldn’t build the software or hardware I need to communicate these ideas today without a comprehensive design process and deliberate, tested designs for their products. In designing my computer, for example, those designers had two goals:
- truly understand users like me; and
- provide me the best possible user experience that meets my needs and solves my problems.
Canada’s legal system should be no different. It is a public product and service with many users.
Yet we don’t and can’t understand the user experience of most individuals in it—not the experience of courts, judges, litigants, or lawyers:
- Comprehensive data about Canada’s legal system, including comprehensive insights about courts, judges, litigants, and lawyers is either non-existent or not public.
- Basic facts remain mysteries—like, how many accused plead guilty each year; how long an accused must wait to hear whether they’re going home or to jail; or how many accused address their guilt or innocence without adequate help. The civil justice system is no better: we don’t even know the national Canadian divorce rate.
Despite this deficit, we do know that individuals in Canada’s courts are also not getting the best user experience—one that meets their needs and solves their problems. One where every litigant gets the same access to justice in any Canadian court regardless of who they are, where they come from, what they did, or how much money they make.
Individuals in Canada’s courts unfortunately don’t access such uniform justice. For example, the little data we do have suggests that Canadian accused don’t experience uniform, impartial justice. Judges and courts make herculean efforts, yet most criminal accused face a lottery they didn’t sign up for. Some likely get better results simply because of where they live; who they can or can’t hire; who their decision-maker is; or many factors that shouldn’t matter.
And the why might be simple. Actual laws and practices change. But how we reform Canada’s legal system mostly doesn’t. Canada’s incredible legal data deficit persists: we still know more about sports teams than we do about our legal system. And the traditional approach to legal reform and its organic, evolutionary method still dominates.
Rejecting the traditional approach to legal reform
My recent article in the Dalhousie Law Journal—”If I Had More Time, Would I Have Written a Shorter and Faster Decision? An Empirical Examination of the Evolution of Trial Court Decisions”—seeks to persuade readers to reject the traditional approach to legal reform. Instead, it advocates for a comprehensive, user-focused, data-driven approach to legal reform.
The article draws from my 2019 LL.M. thesis where I sought to understand two things:
- how current approaches to judicial decision-writing may impact access to justice;
- how decisions could be a better source of data and more timely, concise, accessible, and consistent.
It presents the results and analysis of an original empirical study of the evolution of British Columbia trial decisions over 40 years (1980-2018). If you want to learn more about the study’s conclusions, they’re visualized here. In short, the study suggests two main things:
- The current process for writing Canadian judicial decisions likely does not further the goals of access to justice and may even hinder them. Further study and targeted reforms are urgently needed to address delay, timeliness, accessibility, and consistency in Canadian judicial decisions.
- Reforms must not be based on anecdote, intuition, one-off examples, or single empirical studies. Instead, proposed reforms should be based on more deliberate design strategies such as those that human-centred design employs. For example, courts could and should generate extensive, transparent data on judicial decision-writing, judicial decisions, and the judicial process; rely on interdisciplinary methods to better understand current problems; ideate new ways of writing decisions that respond to that research; prototype and iterate those new ideas; and finally, extensively consult users about writing and reading decisions.
Epilogue: Doing empirical legal research in Canada is difficult
I must mention a final point. Empirical legal research—like the study in my recent article—is surprisingly difficult in Canada. The data needed to do such research and generate successful reforms is either not gathered; poorly gathered; not shared; not accessible; or housed in commercial and information monopolies. As my recent article suggests, most of what we hear and know about the criminal justice system “is anecdotal – descriptions rather than measurements.”
Gathering the most basic information about our justice system is a basic task. The decisions that Canadian judges must issue in criminal justice cases hold incredible historic and current data. They’re the “primary mechanism by which judges account to the parties and to the public for the decisions they render.” The same is often true in our civil justice system.
Judges don’t issue their decisions for the corporate or information monopolies that currently house them (who then largely preclude bulk access while generating profits and monopolies). Judges issue these decisions for all Canadians, including taxpayers. They’re the work product that any Canadian has the legal right to review—to “satisfy themselves that justice has been done, or not, as the case may be.”
Democratizing free, open access to all judicial decisions—and the anonymized court records accompanying them—is essential to unlocking desperately needed criminal and civil justice data. It could invite far more empirical evaluation and reform in Canada’s legal system.
Both the United Kingdom and United States recently recognized this truth. The UK committed to provide democratic, open access to all judicial decisions—free of monopoly—by 2022, and it’s achieved its promise, including to provide machine readable decisions. The US has largely committed the same for anonymized court records (but with a slower timeline).
Nothing indicates that Canada’s criminal and civil justice system is about to get such a basic or imperative reform. Almost every Canadian court is chronically underfunded by the provinces and understaffed by the federal government. Modernizing the court system garnered almost no attention during Election 44 (the current federal government was the only party to commit any money ($50m) to modernizing courts) or since (the current federal government contributed no money to modernizing courts in its last budget).
In reality, spreadsheets are necessary for equitable justice. I hope governments and courts agree and dedicate the money and resources to gather and democratically release more data about Canada’s legal system.
DLJ Podcast – Ep 28 – Jamie Baxter – Open Legal Casebooks
Join student editor, Elyse, and Jamie Baxter, an associate professor at the Schulich School of Law. They discuss Jamie’s work developing an open property law casebook for his first-year class, as well as their article proposing a new model of developing open casebooks. The article is entitled “Exit, Voice and Disloyalty in Open Casebook Development” and is forthcoming in Canadian Legal Education Annual Review.
Jamie’s faculty profile: www.dal.ca/faculty/law/faculty…y/jamie-baxter.html
Jamie’s open source casebook project: www.opensourcelaw.ca
Private Search and Seizure: The Constitutionality of Anton Piller Orders in Canada
By: Dimitrios Valkanas, McGill University, Faculty of Law.
For more on this topic, see Dimitrios’ article in issue 45:1 of the Dalhousie Law Journal.
Unlike a search warrant [Anton Piller orders] do not authorize forcible entry, but expose the target to contempt proceedings unless permission to enter is given. To the ordinary citizen faced on his or her doorstep with an Anton Piller order this may be seen as a distinction without a meaningful difference.
– Binnie J in Celanese Canada Inc v Murray Demolition Corp, 2006 SCC 36 at para 28.
The modern world, with its perpetual technological progress and ever-growing list of international and domestic threats, seems to be rife with new methods to intrude into citizens’ privacy, in addition to providing the justification for such infringement. Ordinarily, the citizens of liberal democratic societies, such as Canada, would turn to the law for protection from such infringement of their most basic rights; and yet, as the peculiar case of the Anton Piller order serves to illustrate, that is not necessarily the case.
For those not familiar with the Anton Piller order, it is essentially a type of injunction granted in civil cases to allow a plaintiff to search the defendant’s premises for evidence and to seize it, where there is legitimate cause for concern that the defendant might destroy or otherwise conceal the evidence in question. Notably, an Anton Piller order is granted ex parte, which is to say that the party seeking such an order can ask a court to grant it without giving the defendant a chance to oppose the motion—or even notice that such an order has been sought.
To most people, this sounds awfully like a search warrant—which is why a very common definition of the Anton Piller order is a “civil search warrant.” The Supreme Court itself noted this similarity. Thus the obvious question arises: How can Canadians be expected to sacrifice their privacy, without a chance for a prior hearing, for a mere civil dispute—that is, a private matter? And how can Canadians who refuse this intrusion be expected to sacrifice their liberty without having committed a crime? One would assume something like this to be blatantly unconstitutional.
Unfortunately, constitutional challenges of the Anton Piller order are few and far between. Despite its very real potential for abuse—and the very real examples thereof—the order is most often used by large corporations against itinerant street vendors over the sale of copyright-infringing merchandise. It is of little surprise, then, that Anton Piller defendants typically lack the means to challenge the order. Moreover, even in those rare few instances where a judicial challenge has been mounted, courts have generally chosen to uphold the Anton Piller order, most often finding that the Charter does not apply it, or that the order meets all the criteria of constitutional scrutiny. Courts have not even been willing to strike down a more pernicious and uniquely Canadian variant of the order: the “rolling” or “John (or Jane) Doe” Anton Piller order, which is issued without a named defendant, and which may thus be used to conduct searches and seizures against multiple defendants!
With this in mind, opponents of the Anton Piller order must look to alternative paths in order to constrain the Anton Piller order. One such path is the re-examination of the jurisprudence underlying these orders, with a view to restating forgotten or commonly ignored criteria for their issuance, or to adopting novel criteria. One notable example is the proposed criterion that no “real harm” should result to the defendant—something which was stated in the original British decision that created the Anton Piller order.
Another path would be to seek to impose additional safeguards and restrictions on how Anton Piller orders are executed, in addition to various protections for harmed or severely disadvantaged defendants. Such proposals may include a requirement for an impartial third-party lawyer to be present, or for an indigent defendant to be provided with a lawyer in order to challenge the order.
Whichever path for reform one chooses, the Anton Piller order seems poised to remain part of Canadian law for the foreseeable future. Hard as it may be to believe, Canadians can indeed be forced to open their door to a private party over a civil case—and a refusal to do so can land them in jail, just like a refusal to obey a search warrant would. For now, at least, it seems that all Canadians can do is make sure that such “private search warrants” are granted as rarely and executed as painlessly as possible.
 This issue has been recognized by even the highest orders of the modern international political order. See e.g. Office of the United Nations High Commissioner for Human Rights, “Digital age: Is our privacy under threat?” (19 November 2018), online: United Nations Human Rights <www.ohchr.org/en/stories/2018/11/digital-age-our-privacy-under-threat> [perma.cc/68N3-5U3M].
 See “Resource: Anton Piller Orders” (16 December 2021), online: Fasken <www.fasken.com/en/knowledge/2021/12/anton-piller-orders> [perma.cc/UJ3R-KJB2].
 See ibid.
 “What is an Anton Piller Order?” (last modified 7 September 2022), online: Courthouse Libraries BC <www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base/what-anton-piller-order>.
 See Celanese Canada Inc v Murray Demolition Corp, 2006 SCC 36 at para 1 [Celanese].
 In the landmark Federal Court case of Netbored Inc v Avery Holdings Inc, 2005 FC 1405, the party served the order in a careless and callous manner toward the defendant’s teenage daughter—much to the dismay of the judge (at paras 63-64). A more common issue is the issuance of such orders without any real proof that the defendant is likely to destroy the evidence or has a tendency to act in a dishonest manner. See Viacom Ha! Holding Co v Jane Doe, 2000 CanLII 15260 at para 66,  FCJ No 498 (QL) (FCTD) [Viacom].
 See CED 4th (online), Injunctions, “Anton Piller Orders: ‘Rolling’ Orders” (V.2) at § 270-271.
 See Jeff Berryman, “Thirty Years After: Anton Piller Orders and the Supreme and Federal Courts of Canada” (2007) 2:3 J Intl Commercial L & Technology 128 at 128-129.
 See e.g. Viacom, supra note 6; Ontario Realty Corp v P Gabriele & Sons Ltd (2000), 50 OR (3d) 539, 2000 CanLII 22697 (ON Sup Ct).
 In Celanese, supra note 5, the Supreme Court explicitly upheld the legality of such orders.
 See Viacom, supra note 6.
 See Anton Piller KG v Manufacturing Processes Ltd & Ors,  EWCA Civ 12. This criterion has also been stated in long-standing Canadian jurisprudence, such as Viacom, supra note 6.
 See Daniel S Drapeau, “Anton Piller Orders: The Latest Word from the Supreme Court, the Federal Court of Appeal and the Federal Court” (2006) 20:1 IPJ 39 at 40-41.
 Though it might sound like a radical proposal, courts have gone so far as to even order a defendant to pay the costs of a plaintiff’s constitutional challenge in other contexts. See e.g. British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71.
- Next Page »