The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Criminal justice

The prosecutor’s role in seeking justice

By Yves Faguy May 8, 2018 8 May 2018

The prosecutor’s role in seeking justice

 

What is a prosecutor’s role in seeking justice in criminal matters? And what does that mean from an ethical perspective? As Professor Alice Woolley writes in her latest article for the Canadian Bar Review, the duty to seek justice “is inherently vague.” The problem, she argues is that Canadian courts tend to rely on the seek justice ethic in assessing prosecutorial conduct. This is problematic in a system in which prosecutors are also expected to perform an adversarial function in court for a number of reasons:

It is vague, contradictory, improperly incorporates undefined moral concepts into legal duties and does not reflect the work that prosecutors do. It does not provide prosecutors with meaningful guidance, and instead risks contributing to prosecutorial arrogance. It may tip the playing field of a criminal trial in the prosecutor’s favour, which directly opposes the principles of criminal law where the benefit of the doubt ought to run to the accused.

A better approach requires identifying the norms that underlie the two functions that prosecutors play in a criminal trial—the exercise of prosecutorial discretion and the conduct of a matter—and articulating the obligations for prosecutors that flow from those norms. Doing so does not create as eloquent or evocative statement of the prosecutor’s duties as the seek justice ethic, but it does permit a more careful and nuanced analysis of the prosecutor’s duties, and of the difference between proper and improper prosecutorial conduct. And even if less eloquent and evocative, a mandate of respecting substantive law and procedural fairness to ensure the rule of law is a mandate of honour and importance, which any prosecutor ought to feel proud to discharge.

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The Pitch

The Pitch winners on tackling data in the legal industry

By Yves Faguy May 7, 2018 7 May 2018

 

Last week in Toronto, Digitory Legal walked away the top prize at The Pitch, the legal innovation startup competition put on by the Canadian Bar Association and Law Made in partnership with LexisNexis. The outfit, based in the San Francisco Bay Area has built a cost analytics and management platform for law firms and corporate legal departments. We spoke its CEO and founder, Catherine Krow, about the challenges facing law firms in getting a handle over their data.

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Defamation law

Defamation law in Canada: A look at the data

By Yves Faguy May 7, 2018 7 May 2018

Defamation law in Canada: A look at the data

 

Hilary Young, in a recent Canadian Bar Review article, brings some data to the debate surrounding defamation law reform in Canada.  Noting that defamation is “an old tort that has changed relatively little over the centuries,” Young explains that the push behind efforts to reform it are driven by changes in how society views free speech in an era where communications technology is evolving at breakneck speed.  Also driving the push until now has been “anecdotal evidence” that the threat of litigation under defamation law is putting a chill on free speech. The study focuses on reported decisions between 1973 and 1983 and between 2003 and 2013:

The study has several interesting results. It demonstrates that the average non-pecuniary damages award has almost doubled between the two periods studied—even when adjusted for inflation. It reveals that the percentage of corporate defamation cases (versus those brought only by human beings) is significant—about a third—but that the percentage has not increased greatly over the time periods examined. The study indicates that reported defamation cases resulted in liability significantly less often in he later period (in only 28% of cases) than in the earlier period. Moreover, rates of liability were higher in cases involving new media (internet and email) publications than those involving other forms of publication. The study shows that punitive damages were awarded to corporations more often than to human plaintiffs, and in higher amounts. It also shows that punitive damages were awarded in about a quarter of all defamation cases in both periods.

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Intellectual property

Can a machine produce copyright material?

By Yves Faguy May 3, 2018 3 May 2018

Can a machine produce copyright material?

 

As businesses across all industries set their sights on a future built on artificial intelligence, there is a growing sense that policy makers are going to have to get serious about thinking through the impact of AI on intellectual property.  James Hinton and Peter Cowan wrote a piece about this last year, rightfully pointing out that most entrepreneurs in tech innovation have a limited understanding at best about IP in general.  Most of the concerns tend to focus on patents, particularly as Canada has set out to position itself as a hub of AI initiatives.

At the CCCA National Conference in Toronto this week Stephen Spracklin, a City of Mississauga lawyer focused on IT and IP issues raised another set of concerns around copyright, particularly as it applies to the more advanced artificial general intelligence, which is capable of learning in its own right without any human intervention (as opposed to artificial narrow intelligence – or ANI –, which is algorithmic learning that analyzes and synthesizes data, and with the input of human resources is able to arrive at a conclusion):

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Corporate counsel

SCC dismisses leave in litigation privilege case dealing with internal investigation

By Yves Faguy May 3, 2018 3 May 2018

The Supreme Court of Canada has dismissed leave to appeal in Alberta v. Suncor Energy Inc. Alberta, which raised some interesting litigation privilege questions in the context of internal investigations.

The case tracked the story of a Suncor employee who died from injuries at a worksite near Fort McMurray.  In anticipation of litigation, Suncor’s legal counsel launched an internal investigation and asserted solicitor-client privilege over collected materials.  Though Suncor shared its report with government occupational health and safety officers, it would not accede to their request to interview investigators and get access to certain documents. The Alberta government sought an order to force Suncor to provide the refused materials and allow OHS to interview Suncor’s internal investigators, or provide further particulars about the claims of privilege.

The trial judge found that the dominant purpose of Suncor’s internal investigation was in contemplation of litigation. Therefore all material coming out of that investigation was subject to legal privilege.  But the Alberta Court of Appeal narrowed somewhat the privilege claim that can exist over internal investigations.  It found that the simple fact that documents were collected in the course of an investigation did not make them privileged per se, if not created for the dominant purpose of litigation (as opposed to becoming privileged by merely having been collected as part of the investigation)

The case held particular interest for corporate counsel who are the ones typically called upon to conduct internal investigation and to assess the legal risks that can result from an incident.

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