The Power of Perspectives

The Canadian Bar Association
Criminal law

In need of a search strategy for electronic evidence

By Justin Ling February 7, 2017 7 February 2017

In need of a search strategy for electronic evidence

 

In recent years, the Supreme Court of Canada has tackled the evidentiary and privacy concerns around cell phones, the internet, and third-party data disclosure. 

But are the courts really keeping pace with advances in technology? 

It wasn’t until 2013, in R. v. Vu, that the top court recognized that a computer isn’t like a cupboard — and, as such, isn’t covered under a search warrant for a residence. It noted, “privacy interests implicated by computer searches are markedly different.” 

Only in 2014, in R. v. Spencer, did the Supreme Court rule that warrantless requests for suspects’ personal data to telecommunications providers amounted to a circumvention of the lawful order process — and were therefore unconstitutional. The court, then, concluded that “particularly important in the context of Internet usage is the understanding of privacy as anonymity.”

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The judiciary

Appeals court to weigh Trump executive order

By Yves Faguy February 7, 2017 7 February 2017

 

The Ninth Circuit Court of Appeals is hearing the challenge to U.S. President Donald Trump’s ban today. He has received plenty of pushback for singling out a a "so-called" federal judge in a tweet for blocking his immigration order.

Will Baude considers the difference between executive official criticizing a court’s decision and it criticizing its authority:

If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.

Yves Boisvert addresses the independence of U.S. courts:

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Access to justice

HackJustice: Tech apps that will improve access to justice

By Yves Faguy February 6, 2017 6 February 2017

 

Over the course of two days, several participants at the MaRS Discovery District and at the Cyberjustice Laboratory at Université de Montréal gathered for Hackjustice, co-sponsored by the CBA, to code and build tech applications that will improve access to justice.

“I was truly excited, impressed and amazed by the technologies that our HackJustice participants were able to develop in what amounted to about 10 working hours,” said Nicole Aylwin, assistant director at the Winkler Institute for Dispute Resolution. “It was inspiring to see how conversations about the role of legal technology in improving access to justice helped informed participants creations.”

Each participating team was required to choose a challenge and later present their tech solution to panel of judges.  The three challenges were: to develop ways to use social media tools to engage and empower the public in policymaking; to resolve consumer disputes; and to develop tools to help people deal with everyday legal problems.

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The profession

Joe Groia’s incivility dispute heads to the Supreme Court

By Yves Faguy February 6, 2017 6 February 2017

 

It’s somewhat fitting that it is in these polarized and vitriolic times, where levels of incivility and nastiness seem to have become commonplace – in the media, in politics, on social platforms, in the workplace – that the Supreme Court of Canada has granted leave to hear the appeal by Toronto lawyer Joe Groia. 

As a quick recap, in 2011, the Law Society of Upper Canada found that Groia engaged repeatedly in uncivil conduct in the defense of his client, John Felderhof, the chief geologist and central figure of the Bre-X Minerals scandal. At trial, Felderhof was acquitted of all charges. Though the trial judge had never complained to the Law Society about Mr. Groia’s conduct, a disciplinary panel nevertheless found that Groia’s violated professional conduct rules by being rude and lacking respect for the court. Groia saw his licence briefly suspended.

Sean Robichaud gives some background, and frames the debate, arguing that advocacy is about “justice, not civility."

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CBA influence

Dual citizens take note – and your Canadian passport

By Kim Covert February 6, 2017 6 February 2017


If you’re a dual-nationality Canadian who was surprised by the requirement that you have a Canadian passport for travel to Canada over the holidays – well, the CBA’s Immigration Law Section is not surprised at your surprise.

In fact, it warned the government in a letter last month that not enough notice had been given to the requirement under the new Electronic Travel Authorization policy that Canadians holding dual citizenship would have to travel on their Canadian passports or risk being denied boarding.

 

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CBA influence

Navigating changes to the Navigable Waters Protection Act

By Kim Covert February 6, 2017 6 February 2017


As part of its broader review of environmental and regulatory processes, the federal government is looking at changes to the Navigable Waters Protection Act that came into effect in 2014, and asking the Canadian public for input.

“The Government of Canada has promised to review the recent changes to the Navigable Waters Protection Act, restore lost protections and incorporate modern safeguards,” the government says on the consultation website.

The CBA’s Maritime Law Section, which responded to the online consultation questions in December, says it does not believe additional protections are needed under the Act.

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Workplace

Sexual harassment in the workplace: Not just a bystander

By Kim Covert February 3, 2017 3 February 2017


On March 8, International Women’s Day, the CBA National Women Lawyers Forum will launch a podcast that grew out of their campaign about sexual harassment in the workplace.

After passing a resolution at the February, 2015 CBA Council meeting calling for an end to sexual harassment in the workplace, the WLF ran a campaign called #WriteYourWrong, inviting lawyers – male and female – to write in about their experiences with sexual harassment in law firms.

The podcast, Not Just a Bystander, is the next stage in the campaign. The title of the podcast is meant to emphasize that it’s everyone’s job to end sexual harassment – witnesses have to speak up, especially when victims can’t.

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Criminal justice

Social media luddites and the admissibility of evidence

By Justin Ling February 2, 2017 2 February 2017

Social media luddites and the admissibility of evidence

 

Social media has become a ubiquitous reality. But that doesn’t mean that everyone is on quite the same footing when it comes to Facebook, Twitter, Instagram, and the like.

Speaking to a conference of tech professionals and lawyers at Osgoode Hall Law School last week, Ontario Superior Court Justice Frances Kiteley offered some cautionary words, warning social media-savvy lawyers that many judges “don’t come with the same skills, knowledge, or expertise as those of you coming into the courtroom.”

“Do not assume that they know what you know,” Kiteley warned.

Obviously, not all members of the Canadian judiciary are social media luddites — from the judge who banned a violent ex-boyfriend from social media this month after a Snapchat post set him off on a violent attack, to the justice who took a very understanding view of one mother’s online dating proclivities in a family law case last year.

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Legal innovation

HackJustice: Life hacks you and your clients might actually use

By Kerri Froc February 1, 2017 1 February 2017

I’m a big sucker for the life hack lists you see all over the Internet, like 100 Life Hacks to Make Life Easier, or 50 Incredibly Useful Life Hacks You Won’t Believe You Didn’t Know. But if you are like me, you still haven’t used Doritos to start a fire, still can’t fold a fitted sheet, and your attempt to use a walnut to fix scratches on your furniture just means it looks like a squirrel had a snack on your scratched furniture.

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CBA influence

It’s time Canada’s courts joined the 21st Century

By Kim Covert February 1, 2017 1 February 2017


It’s an idea whose time came some time ago – and then it had to wait around for someone in charge to notice.

But now the Courts Administration Service has announced an initiative to modernize its technological infrastructure to create a fully electronic-based system for the Federal Court, Tax Court and Federal Court of Appeal, and the CBA’s Federal Courts and Tax Court bench and bar committee couldn’t be more pleased, calling it a move that is both worthwhile and necessary.

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CBA influence

It’s a wrap! The rest of what we did in 2016

By Kim Covert January 31, 2017 31 January 2017


2016 was a banner year for CBA advocacy – we broke the previous record for submissions in a single year by 15, with a total of 97.

And 19 of those submissions came in late November and December ahead of the Christmas break, as CBA National Sections and Forums and the Legislation and Law Reform people scrambled to meet deadlines and respond to consultations even after Parliament rose for the holidays.

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Privacy

The executive order and data protection

By Yves Faguy January 31, 2017 31 January 2017

 

U.S. President Donald Trump’s executive order on “Enhancing Public Safety” has generated a lot of concern about it eliminating privacy protections enjoyed by foreigners, including Canadians, in the U.S. It would also affect much of the internet traffic in Canada that gets routed through the U.S. (see video above); Michael Geist writes that it’s clear that the personal information of Canadians will not be protected under the US Privacy Act.

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