⚖️ Fifth generation

To: Hearsay Readers

Good morning.

A great reminder from Donald Trump yesterday — even if you’re dragged into court for a “fraud[ulent]” political “witch hunt”, you can still set aside your frustrations and share a laugh. After seeing his court portrait, Trump remarked that he needs to lose weight. Maybe he’s just following his son’s lead — last month, Don Jr. told one of the courtroom artists to make him “look sexy”.

Enjoy your weekend.

— Dylan Gibbs

TODAY’S DOCKET

  • Leave to appeal for 5G networks

  • Sudbury wants re-hearing for tied decision

  • AI privacy principles

  • Canada announces cap-and-trade framework

  • Settlement over bilingual Quebec judges

SCC

High-speed networks headed to Supreme Court

Workers install antenna on top of building in futuristic setting

5G is heading to the Supreme Court. No, the Court won’t be deciding whether the latest generation of cellular networks has ties to the COVID-19 pandemic. The Court granted leave to appeal for a different 5G question with enough public importance to warrant the Court’s attention: is an antenna that distributes a wireless network a “transmission line”?

Antennas all around: To get 5G networks up and running, Canada’s Big 3 carriers need to install something like 250,000 to 300,000 antennas — a big step up from the 13,000 or so legacy cell towers that run our current networks. Most of the antennas will be installed on existing public property, like light standards and bus shelters. You’ll be seeing them everywhere. But only if municipalities give the carriers permission to install them.

Telus and the other major carriers don’t want municipalities standing in the way of progress. What if a municipality charges too high of a price for access? Enter the Telecommunications Act, which says the CRTC can impose a deal between a carrier and a public authority to allow the carrier to install a “transmission line” on the public authority’s property.

What’s a transmission line? The term isn’t defined in the Act. The CRTC and the Federal Court of Appeal said a transmission line is a physical or tangible pathway, which doesn’t include wireless antennas. If that decision stands, the Big 3 will be stuck doing their own negotiating, without any help from the CRTC. They’re hoping the SCC sees it differently.

Motion to re-hear the tied decision

Sudbury wants a do-over. The City lost its appeal by default last month after eight Supreme Court justices split evenly down the middle and issued a rare decision “on equal division”. Sudbury now plans to request a re-hearing.

Rare situation, but not unheard of: In 1973, Edgar Hill received a 12-year prison sentence for a violent sexual assault. The Court of Appeal upped his sentence to life. When Hill brought a further appeal to the Supreme Court, only eight judges heard the case and they ended up in an even 4:4 split. Hill requested a re-hearing because of the tie, and the Court agreed to reconsider.

Hill’s case isn’t a perfect comparator for Sudbury, though. Hill was facing the highest possible stakes given the life sentence. Sudbury was charged with regulatory offences and faces — at most — a hefty fine. Sudbury also has a potential defence to the charges that the lower court still needs to consider.

Sudbury’s specific circumstances don’t seem to be the most compelling, but there’s not exactly a textbook approach to re-hearings after tied outcomes. Maybe the Court will be keen enough and kind enough to sort out the law for everyone else. The decision has already caused quite a negative stir in the construction industry.

HEARSAY ROUNDUP

Canadiana

⛽️ The federal government released its draft framework for a cap-and-trade system to reduce emissions. The proposed emissions cap applies to upstream oil and gas activities, capping 2030 emissions at 35 to 38 percent below their 2019 levels.

🤖 Canada’s privacy commissioners released a joint statement on privacy principles that apply in the context of generative AI technologies.

🌊 Mathias Colomb Cree Nation is suing Manitoba and Manitoba Hydro. The First Nation alleges that two dams in the province have been damaging their lands and hampering their ability to exercise protected treaty rights for over 50 years. They’re asking for disgorgement of profit the province made from the dams, as well as $100 million in general damages and $10 million in punitive and aggravated damages.

🧐 The Nova Scotia Judicial Council is reviewing the judge who tried to cover up comments he made during a criminal trial that suggested a reasonable apprehension of bias.

🧑‍⚖️ Quebec’s Justice Minister and the Court of Quebec reached an agreement on the number of English-speaking judges required for each region in the province. The agreement resolves a lawsuit to strike down part of the language law Quebec introduced earlier this year — the new law gave the Justice Minister sole discretion to decide which judicial positions require bilingualism.

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