The Power of Perspectives

The Canadian Bar Association
BC

Where is Google?

By Justin Ling June 17, 2015 17 June 2015

Where is Google?

To hear the online search giant tell it, it’s living on the internet, in a legal netherworld.

The British Columbia Court of Appeal, however, issued a precedent-setting ruling, informing the do-no-evil company that, in fact, Canadian courts have the ability to force Google’s hand.

In Equustek Solutions v. Jack, on which Google appealed, the court had a litany of things to consider — namely, can and should the courts act to suppress illegal material on the internet? Even if so, can it do so if the offending material is housed on servers outside Canada? What’s more, can it require companies that merely index that material to suppress it, and how far can they go in doing so?

The technology company Equustek had been the victim of some malicious trade practices. A rival company, headed by one of the defendants, Morgan Jack, got ahold of some patented technology, and began selling it online. Much in the same way that Google will de-list websites that host copyright-infringing material from its search results, it removed the offending sites, that were hawking the patent-breaking technology.

But Equustek contended Google didn’t go far enough.

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Article

The SCC's medical marijuana ruling

By Justin Ling June 11, 2015 11 June 2015

The SCC's medical marijuana ruling

Yes, edible cannabis is now legal to possess for those with a prescription, but the rules around medical marijuana are still far from clear.

The Supreme Court ruled today that the federal laws around possession of medical marijuana — and what forms of the drug are legal to carry and consume — are unconstitutional.

A decision in R. v. Smith, written by the unanimous court, says the effects of the Controlled Drugs and Substances Act on medical marijuana users “limits liberty and security of the person in a manner that is arbitrary and hence is not in accord with the principles of fundamental justice.”

They took specific aim at exemptions in the regulations of the Act that allow patients with a valid medical permission to obtain dried cannabis, and only dried cannabis.

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Controlled substances

Safe injection sites in Montreal

By Justin Ling June 11, 2015 11 June 2015

Safe injection sites in Montreal

With Ottawa’s effective ban on supervised injection sites about to come into force, Montreal mayor Denis Coderre is nevertheless intent on making his city the second one in Canada to welcome the sites.

Legally, however, that could be a challenge. It isn’t just that Montreal, like Vancouver before it, requires a federal exemption under the Controlled Drugs and Substances Act (CDSA) to set up harm reduction sites

The Senate has now officially passed Bill C-2, better known as the Respect for Communities Act, which sets a tougher standard by imposing new requirements on community service providers applying to set up new safety injection sites in Canada, modeled on Vancouver’s Insite.

And while a 2011 Supreme Court ruling might have opened the door to the establishment of injection sites across Canada, it acknowledged that the CDSA nonetheless grants the Minister of Health discretion in determining whether to grant exemptions

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The Supreme Court

The evolution of reasonableness

By Jennifer Taylor June 9, 2015 9 June 2015

The evolution of reasonableness

What would a reasonable person think? It’s an eternal question in the common law, and an eternally interesting one. This is because the “reasonable person” standard is a conceptual vessel into which we pour a multitude of assumptions about the kinds of knowledge and values we want our legal system to reflect. As a result, the standard ends up evolving, awkwardly and inconsistently at times, based on perceptions that might fluctuate with a changing society.

Two recent decisions of the Supreme Court of Canada illustrate this point.  The contexts are different, but each decision sheds light on how the Court views the reasonable person as a barometer of broader issues facing the justice system.

At issue in the first ruling, Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), a case about minority language education rights, was whether the trial judge’s conduct during trial, along with his extra-judicial affiliation with a Francophone association, gave rise to a reasonable apprehension of bias (judged, of course, using the standard of the reasonable person).

In the second, R v St-Cloud, the question was whether an accused person’s detention pending trial was required to maintain public confidence in the administration of justice – judged according to what reasonable members of the public would think. Justice Abella wrote the unanimous reasons in Yukon, and Justice Wagner wrote for the Court in St-Cloud.

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Article

Access to information

By Justin Ling June 3, 2015 3 June 2015

Access to information

Can Ottawa provide retroactive immunity for itself?
 
That’s a question that Ottawa didn’t even seem ready to answer when it did exactly that last month, when it introduced Bill C-59. The budget implementation bill, slimmer than past omnibus efforts from the Harper Government,  limits the scope of the Access to Information Act and the Privacy Act, “with respect to records and copies of records that are to be destroyed in accordance with the Ending the Long-gun Registry Act.
 
Of course, it’s unusual to limit the application of a law to information that no longer exists. So the bill also extends the immunity backwards. “The non-application of the Access to Information Act and the Privacy Act is retroactive to October 25, 2011, the day on which the Ending the Long-gun Registry Act was introduced into Parliament.”
 
The long gun registry, of course, was abolished in 2011. Its data, however, lived on in the hands of the Royal Canadian Mounted Police. The Long-gun Registry Act would require its deletion, however. And once the registry itself was no more, at least one request came in to receive the legacy data from the program. Notwithstanding that, the RCMP moved to delete the records. The Information Commissioner Suzanne Legault wrote a letter to then-Public Safety Minister Vic Toews warning him that the information was still subject to the Act, and that a request was outstanding for the data.
 

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The practice

Alternative fee arrangements

By Becky Rynor May 15, 2015 15 May 2015

Alternative fee arrangements

Barbara Hendrickson was ahead of the pack when she founded BAX Securities Law in Toronto in 2012 and started offering alternative fee structures from day one.

“But I have to say it’s been pretty painful,” admits Hendrickson, a former chair of the CBA’s Business Law Section. “I have this process, especially if it’s a new client. I started off by doing an assessment. I would spend a few hours with the client about what work they had to be done, I would come up with a work plan, give a fee estimate and then I would start. The problem is, that takes a lot of time and sometimes I give a fee estimate and then they might not retain me – but they’ve got a really good roadmap of how to close their transaction. Secondly, invariably, something changes. So it’s been a real skill coming up with an estimate with the appropriate limitations in it so I don’t get stuck.”

She figures alternative fee structures are the way of the law profession’s future.

“This whole concept of how we provide a product is changing because of the economy,” she says.  “I personally would rather stick with hourly. I’m hard-wired that way. I manage my whole day around the hour, how much I can bill. But people … see the hourly rate and they think that somehow in the fixed fee they don’t have to pay as much.”

The billable hour may still be the top fee model, but it is defini

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Article

An aging inmate boom?

By Justin Ling May 7, 2015 7 May 2015

An aging inmate boom?

Should Canada start building geriatric prisons?

That should be a real question on the government’s mind, thanks to their tough new sentencing provisions that are promising to stuff Canada’s jails with elderly prisoners, according to Canada’s Correctional Investigator.

The Harper Government has, for years, tinkered with Canada’s sentencing regime. The Not Criminally Responsible Reform Act tightens the rules around release for violent offenders with mental health issues. Axing the faint hope clause means that murderers won’t qualify for early parole. The slate of mandatory minimums applied to arson, counterfeiting, and a slew of other crimes means that the flexibility for judges to avoid issuing jail time is being reduced. The early parole system for non-violent offenders is gone. Consecutive sentencing means multiple convictions effective negate the possibility of parole. The new ‘life means life’ bill, C-53, attacks the option for parole for first-degree murder from another front.

And now, new changes to statutory release might be the straw that breaks the camel’s back. Howard Sapers, outgoing ombudsman for Canada’s jails, seems to think so.

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Law firm security

Ransomware extortion

By Carolynne Burkholder-James May 7, 2015 7 May 2015

Ransomware extortion

Ransomware is a law firm’s worst nightmare. When a ransomware virus gets into a computer system, it encrypts all of its files – thus cutting the firm off from all of its computer-stored information.

“The data owner is then prompted by the ransomware software to pay a ransom -- often in encrypted currency known as Bitcoin – within a certain time period; usually a couple of days,” says David Whelan, the Law Society of Upper Canada’s Manager of Legal Information. “Payment results in a decryption key. No payment means the files remain encrypted and inaccessible.”

Paying the ransom is no guarantee of receiving a decryption key. Some ransomware extortionists take the Bitcoins and run, leaving their victims cut off from their files. 

All law firms are vulnerable to ransomware attacks. But solo practitioners and small firms generally lack the level of IT support available in major law practices, meaning that they can be less prepared to guard against and recover from ransomware attacks when they occur. And these attacks are taking place in Canada: The Law Society of British Columbia recently sent an alert to its members about the Cryptolocker ransomware virus after two B.C. firms were affected, said David Bilinsky, a Practice Management Consultant/lawyer with the LSBC. 

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Expert witnesses

The impact of new approaches to Expert Evidence

By Suzanne Loomer May 6, 2015 6 May 2015

The impact of new approaches to Expert Evidence

In recent years, demands for lower litigation costs and shorter trials brought about new approaches to how expert evidence is prepared and presented. These approaches include concurrent evidence, jointly appointed experts and joint expert statements. Done right, they can promote settlement, streamline trials, reduce court backlogs, and make better use of expert time (“Reforming Expert Evidence”).

So as these approaches are put to use in Canada, which is proving to work the best? 

The Canadian Institute of Chartered Business Valuators (CICBV) set out to answer that question, given that Chartered Business Valuators (CBVs) are frequently called upon to provide professional opinion and expert testimony. Specifically, CBVs provide evidence regarding financial matters such as the quantification of business value, intangible asset value, and damages, which is used by the courts as a basis for judicial decisions on financial matters. 

Earlier this year, the CICBV conducted a national survey of its 1,600 members to better understand the impact these approaches are having and explore which approach is used most often. The survey also shed light on alternative versus traditional approaches to presenting expert evidence. Here is a summary of CICBV’s survey findings. 

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The practice

Picking partners

By Carolynne Burkholder-James May 6, 2015 6 May 2015

Picking partners

Legal skills balanced with people skills, ambition and a willingness to put in the kind of hours that get noticed. That’s just some of what law firm leadership looks for in partnership candidates.

Top-drawer legal skills are of course a crucial requirement at partner time, but an aptitude for black letter law is just the foundation on which a legal career is built. The walls and the roof come from other, sometimes unexpected places.

For example, James Speakman, Managing Partner at Clark Wilson LLP in Vancouver, says one attribute potential partners have is what he calls a “proprietary attitude.” “We are a business. We want people who act like an owner and are aware of the fact that we are running a business and there are business issues,” he says. Associates who want to become partners “become interested in the business of the firm and the business of the firm's clients.”

“We expect our associates to at least meet their budget if not more,” he says. “If that is combined with some client generation, that is great.”

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Article

Faster, cheaper, simpler

By Leo Singer April 23, 2015 23 April 2015

Faster, cheaper, simpler

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Article

Destination: Nepal

By CBA/ABC National April 23, 2015 23 April 2015

Destination: Nepal

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