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.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.

 

Legally Speaking April 24, 2025

Adam Stirling [00:00:00] 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’ve brought Michael up on the phone line. Michael, are you able to hear us?

Michael T. Mulligan [00:00:12] I sure can. It’s always great to be here. I guess now virtually in Esquimalt.

Adam Stirling [00:00:16] You are, you are. 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.

Michael T. Mulligan [00:00:29] It’s always good. The downtown hum is gone.

Adam Stirling [00:00:31] 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 T. Mulligan [00:00:51] Well, this was 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 policy holders to a criminal organization. And in particular, the criminal organization was purchasing information about policy holders that were associated with the Justice Center, which would train like police officers and so on. And as a result of this information being sold, the criminal organization wound up by engaging in,  I think it was 45 targeted arson and shooting attacks at going and lighting people’s houses on fire or firing guns at them.  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 who 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 privacy act  and that ultimately got certified it was described as a really hard-fought legal action ICBC opposed it from the get-go at every possible ground. Ultimately the claim was certified and the It was successful. The legal issue that then arose which just got answered on an appeal 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. What is the damage? What is harm? And how should that be compensated if you’re just one of the 78 people who sort of 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, which is different from like a criminal charge.

Adam Stirling [00:03:09] mm hmm.

Michael T. Mulligan [00:03:09] Some of the, 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. 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.

Adam Stirling [00:03:38] yes.

Michael T. Mulligan [00:03:38] 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. 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.

Adam Stirling [00:04:06] hmmm.

Michael T. Mulligan [00:04:06] So it creates this statutory tort by breach of the Privacy Act without proof of damages, which then raises the question of, well, what do I give you, as the judge? And here ICBC’s eventual position 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 it should be no more than $500 just for having your information sold to the gang by the ICBC employee. 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 a gang. And that’s separate from the head of damages that could also be awarded to a subclass of people who actually had, like, you know, their house lit on fire or whatever. They might be entitled to more like, okay, I need to have my garage door repaired or I had 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 near, 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 damage awarded for things like a constitutional remedy. The Constitution provides that a judge can impose or provide a remedy for a constitutional breach. Like, for example, if you had somebody who was, rights were violated in some way. One option would be money and 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.

Adam Stirling [00:06:11] hmm.

Michael T. Mulligan [00:06:12] And the idea there is that, you know, clearly if somebody like trespass by, you don’t doing donuts on your lawn or something in their car, yeah, that could be a trespass. And you might have damage like, I had to get my whole lawn fixed.

Adam Stirling [00:06:25] yeah.

Michael T. Mulligan [00:06:25] But what about the person who’s just like creeping through your garden or somebody who just comes in like pitches a tent in your front yard or something. 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 donut, you know, you left tire tracks in my yard when you drove across it. And otherwise, you can see why that would be. Otherwise, you know, 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. And the court appeal pointed out that well, if you had some kind of privacy breach, which they described as inadvertent or superficial transient to 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 inappropriate for example, in this digital world where we all have all of our information sitting on company servers and so on. You want to create some incentive to like, do your best to keep that reasonably secure. Otherwise, if the amount 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. 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. And so the Court of Appeal did say that, while, there’s lots of deference to judges’ decisions on these things, and did say that, while $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. And so, it’s a really important decision because it’s sort of the seminole case in BC dealing with what kind of damages can be awarded when you can’t point to a specific thing and in my view that’s good because that’s kind of the nature of what a privacy consideration would be right.

Adam Stirling [00:08:54] mm hmm.

Michael T. Mulligan [00:08:54] I mean if I tell you that somebody’s just sold your personal information Who doesn’t like you to a gang.

Adam Stirling [00:08:59] yeah.

Michael T. Mulligan [00:08:59] 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 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 [00:09:51] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking will continue on CFAX1070 right after this.

[00:09:57] COMMERCIAL.

Adam Stirling [00:09:57] Legally Speaking on CFAX 10-70 with Michael Mulligan from Mulligan defence lawyers, Michael up next in our agenda I’m reading it says rap music expert qualified to testify at a murder trial.

Michael T. Mulligan [00:10:10] You don’t get that a lot, do you?

Adam Stirling [00:10:12] I was going to say a rap music expert.

Michael T. Mulligan [00:10:15] 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 like, it was just made in the midst of the trial and it’s really interesting one in this sense. It’s first-degree murder charge. 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, “discreditable conduct” was going to be admissible at the behest of the crown, including these things like these jail phone calls and rap lyrics.

Adam Stirling [00:11:30] hmm.

Michael T. Mulligan [00:11:30] Now that first of all, is unusual. Generally discreditable conduct evidence isn’t really the basis of a criminal charge. 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 crowns relying upon things this guy was rapping to be somehow admissions of the murder. Now the defence 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. And what the defence wants to do is they want to qualify him as an expert to provide opinion evidence about this particular kind of what’s described as drill music, a subgenre of rap music.

Adam Stirling [00:12:24] hmm.

Michael T. Mulligan [00:12:24] Which was described as a drill rap stemming from, it’s a sub-genre, of gangster rap which has its origins in Chicago.

Adam Stirling [00:12:32] hmm.

Michael T. Mulligan [00:12:32]  but it’s also present in other places, Toronto and other places in Canada. 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. Witnesses generally are proven to show up and testify about things they saw or did, like facts.

Adam Stirling [00:12:52] Yeah.

Michael T. Mulligan [00:12:52] And what to make of those facts is generally an issue for the judge or the jury, whoever the trier of fact, right 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. What does this,  you know DNA in the blood mean or something, right.

Adam Stirling [00:13:12] Yeah.

Michael T. Mulligan [00:13:14] 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. And so, there are a series of things that they would have to establish. First of all, that the evidence is irrelevant 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 of fact. And so, they would look at something like, is this something that sort of ordinary people could sort out on their own?  In which case you don’t need an expert to help you along. That’s kind of like why that’s why we have a jury, you know, but is it something that’s going to specialize without expert assistance? You know, an 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 so,  and then there’s also an issue about whether there’s any other exclusionary rule, like 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 defence 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. 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. And also, that lyrics often involve in that kind of music the commission of criminal activity.  and sometimes your 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.

Adam Stirling [00:15:26] hmm.

Michael T. Mulligan [00:15:27] 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. And so, the, 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.

Adam Stirling [00:16:13] yeah.

Michael T. Mulligan [00:16:13] Just part of this genre.

Adam Stirling [00:16:15] yeah.

Michael T. Mulligan [00:16:15] And 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.

Adam Stirling [00:16:42] yeah.

Michael T. Mulligan [00:16:43] 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 that the judge had to sort out. And ultimately, the judge concluded that it is appropriate to call that would allow the defence to call this evidence that without that kind of expert interpretation of like what people who are drill rap artists do with the fact that not everything they say they’re doing in fact that they do. A jury might be left to the impression that if somebody’s rapping about killing somebody.

Adam Stirling [00:17:15] yeah.

Michael T. Mulligan [00:17:16] They might literally mean that they killed somebody and 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. 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, in terms of the rapping on the prison phone and whether, whether somebody is 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 sub-genre, 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 gangster drill rap expert evidence in a murder trial going on right now in BC.

Adam Stirling [00:18:17] All right Michael Mulligan, you and I have 90 seconds left, how shall we spend them

Michael T. Mulligan [00:18:22] 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. 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, was, he showed up quietly and sat there on day one, but on day two, when there was some delay in 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.

Adam Stirling [00:19:26] yeah, yeah.

Michael T. Mulligan [00:19:26] You have some sympathy for the sherifs. And so, the judge had decided what do we do with this. 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.

Adam Stirling [00:19:45] hmm.

Michael T. Mulligan [00:19:45] 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 who is like running away, but this guy was in the courthouse just fighting not to come back into the courtroom. Ultimately, she found that it 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.

Adam Stirling [00:20:14] yeah.

Michael T. Mulligan [00:20:14] But if you were doing that, you’ve kind of waived that. 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 abscond. If you run away from your trial the judge could draw an adverse inferences more likely you committed the crime. She declined to do that, but then after reviewing all the evidence including evidence of 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 could identify it. 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. 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 [00:21:11] Michael Mulligan, second half of our second hour on a Thursday, Legally Speaking. Pleasure as always.

Michael T. Mulligan [00:21:16] Thanks so much. Always great to be here. Hope you have a great day and enjoy the new digs.

Adam Stirling [00:21:20] All right, thanks so much, we’ll talk soon.

Automatically Transcribed on April 29, 2024 – MULLIGAN DEFENCE LAWYERS