In this important decision released 1 December 2014 the Court of Appeal for Ontario upheld a motions judge’s refusal to approve a court appointed receiver’s fees, and comments on the undesirable features of the billable hour model.
The motions judge held the legal fees charged were “disproportionate ” to the size of the receivership, that the usual or standard rates were too high, and that excessive work was done by senior counsel on routine matters. The judge found the fees charged “greatly exceed” what he viewed as fair and reasonable.
Relying on its inherent supervisory jurisdiction over a receiver’s requests for payment, and placing the onus for proving fees as reasonable (including the compensation claimed by its counsel) squarely on the receiver, the ONCA dismissed the appeal, emphasizing that fairness and reasonableness are the lynchpins of the analysis of the fees of a receiver and its counsel.
With specific reference to the billable hour Pepall J.A. wrote for the court at para 36:
“A person requiring legal advice does not set out to buy time. Rather the object of the exercise is to buy services. Moreover, there is something inherently troubling about a billing system that pits a lawyer’s financial interest against that of its client and that has built-in incentives for inefficiency. The billable hour model has both of these undesirable features.”
Value provided should trump mathematical calculation reflected in hours multiplied by hourly rate.
Time billed and value should be synonymous, but that must not be the starting assumption, the court held. The focus must be on what was accomplished, not on how much time it took.
Although the initial order appointing the receiver stated counsel shall be paid at “standard rates”, this does not oust the need for the court to later consider whether the fees claimed are fair and reasonable. This should dominate the analysis.
Although this decision focussed on professional fees in the context of court-supervised insolvency, the court stated at para 41: “…many of the principles described in these reasons may also be applicable to other areas of legal practice…”.
In October, Sam wrote:
Lawyers have a pretty singular value proposition. We take care of legal problems for our clients. When you sign a retainer agreement, our client’s problem basically becomes our problem.
The cost of hiring a lawyer is so expensive for many reasons, according to Sam, but one of the most important is the significant commitment lawyers make to each client. That’s something no app or website can offer.2. “Best Law Firm Websites, 2014 Edition”
Our annual law-firm website contest is always popular, and so it was again in 2014.
(If you’re wondering how to enter a website in 2015, just keep an eye out for our announcement in January. Here is more information on the contest.)3. “9 Epic Responses To Legal Threats”
Some people take ridiculous legal threats as an opportunity to have a little fun, and sometimes the results are epic. From a Supreme Court litigator’s response to a porn star who was pushed off a roof to Groucho Marx to the most perfect response ever, from the Cleveland Browns (According to Sam. —Ed.), these legal comebacks are the best we could find.4. “Fashionable, Professional Bags for Women Lawyers”
Jeena Cho’s advice is to pick functional bags that still feel good to carry, and she makes recommendations for every price range, from under $100 to over $1,000. She also includes recommendations for rolling bags and bags for use outside the courtroom.5. “Every Legal App for iPhone and iPad”
A searchable, sortable list of every legal app in the App Store. There are over 60, which shows there is a lot you can do in law practice with an iPhone and iPad, if you are so inclined.6. “This Simple Email Habit Will Make You More Productive”
One easy-to-follow rule that will make you more productive with email. By the time you read this fairly-short post, you’ll be able to apply the rule, clean up your inbox, and get more done.7. “Law Firm Finances: Everything You Need to Get Started”
Randall’s getting-started guide to law firm finances was originally broken up in several posts. This year, we consolidated it into a single post (also available on Kindle), and it continues to be popular for its solid pointers on cash flow, credit, paying taxes, managing income, forecasting, and using financial reports.8. “Dropbox for Lawyers and Law Firms: the User Guide”
Using Dropbox is still controversial, and for valid reasons, but it is also the most popular cloud-storage option among lawyers. This user guide has everything you need to know about Dropbox.9. “MITs: A Simple Way to Be More Productive”
Writing down your Most Important Tasks is a simple daily practice that makes you more productive. This post is a short explanation of the MITs practice and how to do it. Read it, try it, and you’ll be more productive!10. “The Best Computer Monitor Setup for Lawyers”
Lawyers should not neglect the monitor when it comes to computer setup. From pixel density to size to number of monitors, here is how to figure out the best monitor setup for you.
Featured image: “Summer lady” from Shutterstock.
In classical physics, energy can neither be created nor destroyed—Albert Einstein. In quantum physics, information cannot be created nor destroyed. If information is missing from one system, it must be in some other system. Therefore, one could re-construct a headache if one could get sufficient information as to exactly how the aspirin used, worked on nerves and other parts of the brain and body. Such procedure would enable problems having many variables to be solved much faster.[i]
Electronic “predictive coding” devices that automate the “reading” of thousands of records for making production for electronic discovery, present such problems. The words and phrases in records require thousands, even millions of choices to be made as to issues of law and fact concerning relevance and privilege. “Predictive coding” is a document review technology that allows computers to predict particular document classifications (such as “responsive” or “privileged”) based upon coding decisions made by those knowledgeable as to the subject matter. In the context of electronic discovery, this technology can find key documents faster and with fewer human reviewers, thereby saving much time to conduct document review for finding relevant and potentially privileged documents. A detailed description of the use of predictive coding devices is found in, Dynamo Holdings Ltd. Partnership v. Commissioner of Internal Revenue (U.S. Tax Court, Sept. 17, 2014), being a case that rejects the objection that predictive coding is “an unproven technology.”[ii] It quotes the follow paragraphs from a recent article:[iii]
Unlike manual review, where the review is done by the most junior staff, computer-assisted coding involves a senior partner (or team) who review and code a “seed set” of documents. The computer identifies properties of those documents that it uses to code other documents. As the senior reviewer continues to code more sample documents, the computer predicts the reviewer’s coding. (Or, the computer codes some documents and asks the senior reviewer for feedback.)
When the system’s predictions and the reviewer’s coding sufficiently coincide, the system has learned enough to make confident predictions for the remaining documents. Typically, the senior lawyer (or team) needs to review only a few thousand documents to train the computer.
Some systems produce a simple yes/no as to relevance, while others give a relevance score (say, on a 0 to 100 basis) that counsel can use to prioritize review. For example, a score above 50 may produce 97% of the relevant documents, but constitutes only 20% of the entire document set.
Counsel may decide, after sampling and quality control tests, that documents with a score of below 15 are so highly likely to be irrelevant that no further human review is necessary. Counsel can also decide the cost-benefit of manual review of the documents with scores of 15-50.
But note this phrase in the second paragraph above, “review only a few thousand documents to train the computer.” With its present capability, predictive coding will at best, render big records-dependent litigation sufficiently less expensive, but not the cost of litigation of lesser size, which is most cases. And, there has been some criticism of the accuracy of keyword searching strategies, as are used in predictive coding.[iv] The cost for an experienced lawyer to feed-in and review the results necessary to train the device to a sufficient level of accuracy will not be affordable for any but the bigger cases. Therefore, the underlying strategy should be changed, instead of waiting for predictive coding to be made sufficiently economical by improved applications of the law of the conservation of quantum information.[v]
Clients should index all of their records as they create them or receive them from other sources, just as they sort their financial information into their financial records. For all records and information, a “front-end indexing” is a far better way of sorting than is a “back-end searching and reading” of them. That enables the client’s lawyer to use the client’s index to both search and review records in the clients records system, as a combined, single job.[vi] And if there are very large piles of records to be indexed by the client, predictive coding can automate such work. But like the keeping of financial records, such “sorting” is best done as an on-going, everyday process. Clients know their technology and therefore the technical terms to be used for indexing their business records. Such indexing and sorting into types of records and information is done to facilitate accessing information continuously for daily business purposes, as well as for litigation, auditing, or other investigations.
The National Standard of Canada, Electronic Records as Documentary Evidence imposes the following indexing requirements:[vii]
Indexing is a vital part of storing and retrieving information on an RMS [records management system] program. Indexing, which can be automated or manual, shall include the following functional requirements:
a) the specification of the indexing methodology and scheme used;
b) type and structure of indexing used, including the primary index element as well as all additional levels of indexing;
c) methods for performing quality control of indexing;
d) procedures in place to amend inaccurate index data;
e) where an index entry references deleted or expunged information, the index shall reflect the deleted or expunged status; and
f) procedures for performing quality assurance of the indexing.
6.5.2 Index retention, rebuilding and recovery
Index data shall be kept for the retention period of the SRI [set of recorded information] to which it relates. The procedures for rebuilding an index, changing an index structure, and recovering a damaged or faulty index shall be authorized and documented, as well as all results of such events.
By complying with such indexing requirements instead of manual or machine reading of texts, the same three features that facilitate legal research can be brought to clients’ records management: (1) highly indexed and summarized materials; (2) expert searching and reviewing; and, (3) the speed of electronic searching. As a result, the “proportionality” concept of electronic discovery is not needed to limit the amount of legal research that one party inflicts upon an opposing party by way of raising many issues and bringing many applications before and during trial. And the need for electronic discovery’s “proportionality concept” should be much reduced if not eliminated.[viii] Similarly, a client doesn’t give its accountant thousands of records containing financial information and say, “here, you make up the necessary financial records, and then do the audit.” Instead, the client does the sorting of financial information into its financial records on a continuing, daily basis for purposes of accessing information used throughout each business day, as well as for auditing. Accessing, sorting, and reviewing records is far more cost-efficiently done by way of a “front end” indexing of records when one is familiar with them, than by a “back end” reading of records because one is no longer familiar with them.
Those using electronic records as evidence should know the national standard. It is also necessary for applying the electronic records provisions of the Evidence Acts (e.g., ss. 31.1-31.8 of the Canada Evidence Act; s. 34.1 of the Ontario Evidence Act). They were enacted to enable all digitally stored records to be accepted as original records. Their key phrases, “records integrity,” “electronic documents system,” and “integrity of the electronic records system,” were written to depend upon authoritative standards, such as the national standard, for definitions, and for authoritatively established principles for the use of electronic records management systems.[ix]
[i] See these articles: (1) “New analysis eliminates a potential speed bump in quantum computing” : http://phys.org/news/2014-05-analysis-potential-quantum.html;
(2) “The Road to Quantum Computing” : http://phys.org/news/2014-05-analysis-potential-quantum.html; and,
(3) “Researchers prove quantum algorithm works by solving linear equations on a quantum computer” : http://phys.org/news/2013-06-quantum-algorithm-linear-equations.html#nRlv .
[ii] Dynamo Holdings Ltd. Partnership v. Commissioner of Internal Revenue (U.S. Tax Court, Nos. 2685-11, 8393-12, Sept. 17, 2014) online: <http://goo.gl/NiY7XY> (click “available here” at bottom of the page). And predictive coding is mentioned in, L’Abbé v. Allen-Vanguard Corp. 2011 ONSC 7575,  O.J. No. 5982, at para. 23: “Various electronic discovery solutions are available including software solutions such as predictive coding and auditing procedures such as sampling.”
[iii] Ibid at 13-14: Andrew Peck, “Search Forward: Will Manual Document Review and Keyboard Searches be Replaced by Computer-Assisted Coding?” L. Tech. News (Oct. 2011), at 29. The Court then states: “The substance of the article was eventually adopted in an opinion that states: ‘This judicial opinion now recognizes that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.’ Moore v. Public is Groupe, 287 F.R.D. 182, 183(S.D.N.Y. 2012), adopted sub nom. Moore v. Publicis Groupe SA, No. 11 Civ. 1279(ALC)(AJP), 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012).’”
[iv] See: see: Victoria L. Lemieux and Jason R. Baron, “Overcoming the Digital Tsunami in e-Discovery: is Visual Analysis the Answer?” (2012), 9 Canadian Journal of Law and Technology 33 at 35: “…the most common methods currently used in e-discovery — keyword searching and linear review – are increasingly ineffective for the massive volumes of data that must be sifted through for each case. There have been a number of studies highlighting the limitations of existing search and retrieval techniques.” The conclusion states: … “effective information retrieval in today’s complex litigation requires a variety of tools and approaches, including a combination of automated searches, sampling of large databases, and a team-based review of these results.”
[v] The articles sited in note 1 supra, state inter alia, that quantum computers could work much faster than conventional computers in handling complex processes such as image and video processing, genetic analyses, weather prediction, and internet traffic control. “We would be able to search through a large amount of data, regardless of their nature.”
[vi] See: Ken Chasse, (1) “Solving the High Cost of the ‘Review’ Stage of Electronic Discovery” (April, 2014, on the SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2438509 (for a free .pdf download). And also on Slaw, April 17, 2014. And (2) “The Dependence of Electronic Discovery and Admissibility Upon Electronic Records Management” (January, 2014, on the SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2438534).
[vii] The National Standards of Canada for electronic records management are: (1) Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005 (“72.34”), published in December 2005; and, (2) Microfilm and Electronic Images as Documentary Evidence CAN/CGSB-72.11-93 (“72.11,” updated to 2000; first published in 1979 as, Microfilm as Documentary Evidence). 72.34 incorporates all that 72.11 deals with but 72.11 has remained the industry standard for “imaging” procedures, i.e., the large industry devoted to converting original paper records to digital storage, of which many organizations still have large volumes. These standards were developed by the CGSB (Canadian General Standards Board), a standards-writing agency within the federal department of Public Works and Government Services Canada. They are currently being updated by a CGSB-sponsored expert drafting committee. The CGSB is accredited by the Standards Council of Canada as a standards-development agency.
[viii] “Disproportionality” objections based upon bad records management should not be tolerated. See the list of records management defects listed in these articles by Ken Chasse: (1) “The Sedona Canada Principles are Very Inadequate on Records Management and for Electronic Discovery” (Nov. 25, 2014, on the SSRN at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2530515; and, (2) “Electronic Records as Evidence” (May, 2014; on the SSRN at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2438350.
[ix] See: Ken Chasse, “A Legal Opinion is Necessary for Electronic Records Management Systems” (Oct. 2014, on the SSRN).
Among the discussions about transforming the legal industry many librarians are considering ways to express the value of what they do and to explore ways to contribute. One of the elements that has been discussed is to provide more data to libraries’ parent organizations to quantify impacts of various interventions. This is a worthy goal, but it has been my observation that people often respond better to stories than they do to data, and that data, even when presented in a visually compelling way, doesn’t always generate the best stories.
Improved data collection is an excellent tool to accomplish many things, such as:
But that doesn’t mean it will identify all important questions, give all answers, or that the answers it gives will be considered. Within the larger legal information environment, data reporting and understanding will help organizations evaluate options, but for information providers I don’t think numerically derived data alone will convince decision makers of their value or convey all the information they want to impart.
It has been my observation that lawyers are often people for whom stories are the most important factor in decision making. Given the professional and educational context of the common law system this makes sense, as the way to make decisions in that context is to make the same decisions that were made before. Much of lawyers’ professional education is based on the interpretation and application of stories, but many information professionals are not collecting the compelling stories that would help give the qualitative information decision makers need to see beyond the stories that are easily told using simple statistics.
Data is collected and used in libraries for purposes like the evaluation of usage statistics of purchased content to assess whether value is being gotten for money, and as a way to evaluate whether a physical space is still required, but I would argue that the numbers of times someone accesses a subscription, asks a question at a reference desk, or takes out a book are not reasons to fund a library that are compelling to decision makers. Activities like teaching students how to do research and provision of intensive research services often give more compelling reasons to fund libraries than those simple metrics.
Training students helps develop competent legal practitioners who can ensure the important tasks of legal research are done correctly. Contributing to the process of developing competent professionals creates more value than the counting of a book circulation, but to say library staff taught a legal research class to a particular number of students doesn’t necessarily convey that value. The development of new effective legal practitioners is one of the primary ways law firms ensure long term viability as businesses and is a primary source of value for law schools. To better quantify that value it may be a better option to collect testimonials from students and junior associates after they have been able to use their research skills for a time.
Intensive research, especially finding as opposed to analyzing information, is another area of contribution where the impact of the work done by information professionals is disproportionate to the number of instances of the work. To do several of these tasks a week may not sound impressive, but to find something that would have otherwise been missed that wins a case or ensures that a good decision is made has enormous impact. These stories need to be pursued because one of the best reasons to fund a library in a firm is protection against catastrophic loss. This can be a difficult task because it is often not the lead on a matter who works with the library on the research and it may have gone through several hands by the time it is used, but to gather a few of these stories will show value better than any numbers associated with these tasks.
One of the most important reasons to have a library is that having information and competent people available helps avoid major mistakes due to lack of information. The value attached to this benefit is difficult to quantify because it is generally placed on events that haven’t happened. Though the value associated with the risks of events happening is regularly calculated in industries like securities and insurance and could be for this purpose, storytelling is an important way to convey the outlying instances where something has gone wrong to show decision makers why this is worth exploring.
Most people value the cost of losing something higher than than the cost of gaining something, and as there are ongoing pressures on library budgets due to disproportionate inflation in information resources and diminishing annual increases even when there aren’t outright cuts. Having knowledgeable library staff and adequate collections not only incurs costs, but also delivers value by insuring against the potential losses that can arise from inadequate access to and understanding of the rarely used sources of information that can give a real competitive advantage to those who have them. It is stories that show this value that create a compelling case for information resources.
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from sixty recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
In a recent case called Regnier v. Regnier, the court considered a narrow issue: whether a wife’s decision during the marriage to go back to school automatically meant that the husband suffered financial disadvantage, for which he should be compensated by way of spousal support….
This week, the Saskatchewan government amended its Human Rights Code to add gender identity as a prohibited ground of discrimination, joining the Northwest Territories, Ontario, Manitoba, Nova Scotia, P.E.I. and Newfoundland and Labrador in so doing. It also amended the code with respect to discriminating against gay and lesbian renters, and increased certain penalties….
The Rita Hayworthing of Ontario’s Workplaces
For those who feel like their workplaces are already too much like a prison, May 20, 2015, will not be a happy day. For on that day the workplaces of Ontario will resemble Andy Dufresne’s prison cell at the fictions Shawshank State Prison….
The Factum (formerly the ELAN Blog)
International rugby — Innovating justice with the Netherlands
I’ve never played rugby. I once went to see a Six Nations game in the rain — and drank a mug of Bovril, which sounds weird, but when in Rome Scotland — but I can’t say that I understand the game. I also don’t understand what rugby has to do with software development, but they both have scrums. I recently spent a week in a scrum developing a roadmap for MyLawBC.
The Canadian Radio-television and Telecommunications Commission wrapped up its third major hearing in as many months last week, focusing on the wholesale market for broadband Internet services. Coming on the heels of the earlier hearings on broadcast television regulation (the “TalkTV” hearing that was highlighted by a showdown with Netflix) and wholesale wireless services, the proceedings followed a familiar script….
*Randomness here is created by Random.org and its list randomizing function.
Today you can get Ernie Svenson’s new eBook, PDF Essentials for Lawyers, for just $4.97 (a launch discount; it will be go up to $9.97 in a week). If you don’t have a copy of Adobe Acrobat and rely on the free Adobe Reader for your PDF needs, you should definitely get PDF Essentials for Lawyers. I was pretty amazed to see what you can do with Reader.
If you do have Adobe Acrobat, PDF Essentials for Lawyers will still be useful, but you should consider getting Ernie’s more thorough guide, Acrobat in One Hour for Lawyers.
Here are the contents:
More information about the event is available at the event Website.
The pervasiveness of “smart” technology was envisioned in part as far back as 1954 by Harold Osborne, who predicted we would all get a telephone number for life at birth.
When society adopts new technology, social institutions, including the courts, often take time to catch up with it. This was referred to as “cultural lag” by William Ogburn in 1959, who stated,
When material conditions change, changes are occurred in the adaptive culture. But these changes in the adaptive culture do not synchronize exactly with the change in material culture. There is a lag, which may last for varying lengths of time, sometimes indeed, for years.
The Supreme Court’s decision this week in R. v. Fearon could be described as exactly this type of lag, with a limited understanding of the role of cell phones in modern life, and a lack of appreciation of how searches of cell phone contents constitute a significant and disturbing intrusion into the privacy of the criminally accused.
When the Ontario Court of Appeal ruled in this decision last year, I contrasted the court’s finding with diverging and contradictory approaches employed by lower courts in the U.S. The Supreme Court of the United States has since clarified this position in Riley v. California, with the court ruling that absent special circumstances, the constitutional protection against unreasonable search would prevent even legitimate governmental interests from outweighing the privacy interests at stake.
The Supreme Court of Canada failed to clarify the issue last year in R. v. Vu, though requiring a warrant before searching electronic equipment, and Justice Cromwell in that case explicitly stated he did not intend to rule on the search incident to arrest exception.
A split Court in Fearon dismissed the accused’s appeal, upholding the trial level decision and the Ontario Court of Appeal.
The Balancing Approach to Searching Cell Phones
Justice Cromwell, writing for the majority, introduced some safeguards to law enforcement’s authority to review the contents of a cell phone during an arrest:
 …police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8 where:
(1) The arrest was lawful;
(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:
(a) Protecting the police, the accused, or the public;
(b) Preserving evidence; or
(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;
(3) The nature and the extent of the search are tailored to the purpose of the search; and
(4) The police take detailed notes of what they have examined on the device and how it was searched.
Justice Cromwell carved out these restrictions to allow searches of cell phone incident to arrest in order to protect the public safety and preserve relevant evidence. He permitted a carefully tailored search, which would typically only include recently communicated information. These searches, especially if they went beyond recently conveyed information, would have to be carefully documented by the arresting officer.
In Justice Cromwell’s opinion, these limitations would address the privacy concerns around the potentially infinite storage capacity of cell phones. The police do not have an indiscriminate license to search cell phones, a parallel he drew with his own decision in Vu. The documentation of the searches, also employed in Vu, would include which applications were searched, the extent, the time, and the purpose and duration. In less serious offences, which do not involve violence, risk of public safety, property offences or drug trafficking, such searches would not normally be justified.
Cell phones should not be routinely searched to discover evidence, especially where such searches do not serve any immediate investigative purpose. The approach employed by Justice Cromwell would place the onus on law enforcement to justify how a search was conducted, and why. However, this justification on judicial review would only come on a challenge after the fact, which the dissent clearly took issue with.
The categorical exclusion approach used in the U.S. under Riley was not adopted by the majority. The only categorical exclusion in Canada to the search incident to arrest doctrine was with bodily samples in R. v. Stillman, where prompt access does little to assist law enforcement objectives. Searches of cell phones are also not “invariably” and “inherently” a privacy intrusion which would necessarily affront human dignity,
 …while cell phone searches — especially searches of “smart phones”, which are the functional equivalent of computers — may constitute very significant intrusions of privacy, not every search is inevitably a significant intrusion. Suppose, for example, that in the course of the search in this case, the police had looked only at the unsent text message and the photo of the hand gun. The invasion of privacy in those circumstances would, in my view, be minimal. So we must keep in mind that the real issue is the potentially broad invasion of privacy that may, but not inevitably will, result from law enforcement searches of cell phones.
[emphasis in the original]
Even where a search is inherently humiliating and degrading, as with strip searches in R. v. Golden, the Court has placed meaningful limits on the searches rather than employing a blanket exclusion. As significant as the privacy interests are with cell phones, Justice Cromwell stated that it is not as intrusive as a strip search.
Justice Cromwell rejected the “reasonable and probable grounds” approach employed in other cases, suggested by the intervenor, the Canadian Association of Chiefs of Police. He stated that such a threshold would undermine the law enforcement objectives and preclude prompt access to information needed for the immediate purposes of an investigation.
Justice Cromwell also rejected the special (“exigent”) circumstances approach used by SCOTUS in Riley, noting that only one case in Canada had adopted this approach to date. This standard would require too much information by the police at an early point in the investigation, which would effectively prohibit the search of cell phones except for in exceptional circumstances.
Closing the Window on our Private Lives
The dissent was delivered by Justice Karakatsanis, who from the outset emphasized the revolutionary nature of technology and how they operate as windows into our private lives. Although pre-authorization is not always feasible, the law generally holds that a warrantless search is prima facie unreasonable.
Both sides recognized the high privacy interest in cell phones, and did not adopt the briefcase or receptacle analogy employed in previous common law cases but rejected in Vu. However, Justice Cromwell’s template for a meaningful limit on cell phone searches incident to arrest is too complicated and does not provide adequate protection, given the sensitive nature of the information at hand. The meaningful limits approach does not create a meaningful restriction on the powers of law enforcement, given the sheer volume of personal information which can be accessed through an individual’s cell phone.
Justice Karakatsanis emphasized the ability of individuals to choose which audiences they share their ideas ideas, habits, experiments and movements outside of the public gaze, and this private space is necessary to develop as distinct individuals and develop intimate relationships. This private inner life is not only intricately connected to the Charter, but also is a prerequisite for our social and political structures in Canadian society.
The common law already allows for exceptions to warrants where there are exigent circumstances at stake, when there is a risk to the safety of the public or law enforcement, or for the preservation of evidence. As neither concern was present in this case, Justice Karakatsanis held the search was both unreasonable and unconstitutional.
If a cell phone is being used to call for violent backup, this would constitute an exigent circumstance justifying a warrantless search of a cell phone. The possibility of destruction of evidence itself is not enough to justify a search. The decision in Riley outlined some of the alternatives referred to in the dissent which law enforcement have available to them,
…as to remote wiping, law enforcement is not without specific means to address the threat. Remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two simple ways to do this: First, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an enclosure that isolates the phone from radio waves. Such devices are commonly called “Faraday bags,” after the English scientist Michael Faraday. They are essentially sandwich bags made of aluminum foil: cheap, lightweight, and easy to use. They may not be a complete answer to the problem, but at least for now they provide a reasonable response. In fact, a number of law enforcement agencies around the country already encourage the use of Faraday bags.
The very fact that a cell phone is a “virtual gold mine of information” is the basis for attracting such a strong privacy interest.
Protecting our Virtual Assets from Prying Police
The Court of Appeal had emphasized at para 75 the fact that this cell phone was not password protected was the main reason why a warrantless search was acceptable.
Justice Karakatsanis criticized this position stating that the failure to lock a phone does not constitute a waiver of privacy interest or demonstrate a diminished expectation of privacy. Cell phones are now as ubiquitous as house keys, and arresting an individual who has their house key on them or because they leave their front door unlocked does not give law enforcement the right to enter their home. The police cannot take a cursory walk inside a suspect’s home without a warrant simply because it is a cursory infringement of the owner’s privacy.
The respondents suggested there may be some difficulty in preserving evidence in order to bypass password protection of a phone which is unlocked at the time of arrest, presumably due to use. Justice Karakatsanis indicated there was no evidence this was a pervasive problem. More troubling to me is that law enforcement may now seek to time their arrests of suspect specifically when they see a phone being used in order to circumvent password protection as a means of privacy control applied by the majority.
The biggest oversight by the majority appears to be a failure to understand how cellphones are used, or will potentially be used in the years to come. The dissent acknowledged at para 152 that for the digital generation, smart phones contain more personal information than the private home. They are the most intimate thoughts and feelings we have in our society today, and the greatest intrusion someone can impose on our lives.
The dissent also noted at para 164 that even a cursory inspection of photos can reveal private and personal images of individuals, including third parties who are not even subject to the arrest. A Pew Research Centre report earlier this year indicated that cell phones are extensively used by 66% of married adults or those in committed relationships. Nearly a fifth of these individuals have received a sexually suggestive nude or nearly nude photos of someone they know on their phone.
We can suggest that perhaps this content should not be prudently shared on electronic devices, but the reality is there is almost always a subjective expectation of privacy for these images. Applications such as Snapchat or Tinder are routinely used to send communications which are intended to be exclusively private to the recipient, accessible only by the smartphone receiving it, and now the police officer who is making a cursory search of the phone without a warrant.
The warrantless search of cell phones, password protected or otherwise, therefore constitutes in my opinion the greatest privacy intrusion we can employ in modern society. These searches are potentially more humiliating and degrading than the strip searches allowed after Golden, as there is no guarantee the search will be focused on the criminally accused.
The lower reasonable expectation of privacy of an individual who has been lawfully arrested, employed by the majority at para 56, simply is an inadequate justification for such wide-sweeping power. Even if law enforcement takes copious notes of the content reviewed, there is no way to assess the relevance until the content is actually reviewed. What a police offer sees simply cannot be unseen, even if there is justification provided after the fact.
Societal values and technological practices have changed at a rapid pace, and given our legislative process it is unrealistic to expect our statutes to keep up. The least we can do is signal what acceptable practices are by our courts. In my opinion, the majority has failed to do so in this case. We can only imagine that Lori Douglas, had she been appointed to the Supreme Court, would probably have a very different take on the expectation of privacy than the majority does. And this is exactly the reason why we need a judiciary, even at the highest levels of this court, who reflect the diversity of experiences and life found across Canada.
Osgoode Hall’s Susan Drummond illustrates this point in a piece, I can Never be a Judge,
I have four law degrees, two social work degrees, and 15 years of experience as a legal scholar and law professor. But I have a photograph “out there.” And someone close to me threatened to send it to my employer, Osgoode Hall Law School. In solidarity with the Hon. Justice Lori Douglas, I can proudly say that, as it now stands, I will never be a judge.
I am from the analogue generation. My guess is that the digital generation of female lawyers and law students is exponentially more exposed than I ever was.
In The Dark Night (2008), Batman employs the technology developed by Lucius Fox to create a surveillance system based on cell phone transmissions throughout Gotham. Fox is horrified, despite Batman’s noble intentions and laudable objectives of fighting organized crime:
Lucius Fox: Beautiful… unethical… dangerous. You’ve turned every cellphone in Gotham into a microphone.
Batman: And a high-frequency generator-receiver.
Lucius Fox: You took my sonar concept and applied it to every phone in the city. With half the city feeding you sonar, you can image all of Gotham. This is *wrong*.
Batman: I’ve gotta find this man, Lucius.
Lucius Fox: At what cost?
Batman: The database is null-key encrypted. It can only be accessed by one person.
Lucius Fox: This is too much power for one person.
Batman: That’s why I gave it to you. Only you can use it.
Lucius Fox: Spying on 30 million people isn’t part of my job description.
It is a far greater wrong to allow hundreds of thousands of law enforcement officers to search cell phones without a warrant, even with the limitations placed by the majority. It is far too much power for any one man, let alone 70,000 men and women.
The cost of this law enforcement objective is to turn our knights, who serve and protect, into something which should be feared and afraid of, even if completely innocent of any crime.
From Usability Counts: Need HTML Prototyping Resources? Here’s My List http://www.usabilitycounts.com/2013/07/02/need-html-prototyping-resources-heres-my-list/
On one Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe.
Summary of all appeals and leaves to appeal granted (so you know what the S.C.C. will soon be dealing with) (Nov. 13 – Dec. 10, 2014 inclusive).
Contracts: Honest Performance
Bhasin v. Hrynew, 2014 SCC 71 (35380) Nov. 13, 2014
“A summary of the principles … (1) There is a general organizing principle of good faith that underlies many facets of contract law. (2) In general, the particular implications of the broad principle for particular cases are determined by resorting to the body of doctrine that has developed which gives effect to aspects of that principle in particular types of situations and relationships. (3) It is appropriate to recognize a new common law duty that applies to all contracts as a manifestation of the general organizing principle of good faith: a duty of honest performance, which requires the parties to be honest with each other in relation to the performance of their contractual obligations.”
Criminal Law: Circumstantial Evidence
R. v. Wills, 2014 SCC 73 (35804) Nov. 20, 2014
Rothstein J. — “The majority of the Court is of the view that the appeal should be dismissed for the reasons of Doherty J.A. in the Court of Appeal. Justices Cromwell and Karakatsanis, dissenting, would have allowed the appeal for the reasons of Pepall J.A.”
Extradition: Information Sharing
Wakeling v. United States of America, 2014 SCC 72 (35072) Nov. 14, 2014
Parliament has authorized the cross-border sharing of wiretap communications under s. 193(2) (e) of the Criminal Code, and the disclosure here was lawfully authorized by that provision, which taken as a whole, does not violate s. 8 of the Charter. Also, there is no evidence that the manner of disclosure was unreasonable.
Criminal Law: Firearms Offences
R. v. Dunn, 2014 SCC 69 (35599) Nov. 6, 2014.
The Chief Justice — “For the reasons of Justice Rosenberg in the Court of Appeal, we are all of the view that the appeal should be dismissed.”
Labour Law: Supplemental Employment Benefits Re Maternity/Parental Leave
British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Association, 2014 SCC 70 (35623) Nov. 14, 2014
Karakatsanis J. — “The Court of Appeal erred in failing to give deference to the Arbitrator’s interpretation of the collective agreement and in failing to recognize the different purposes of pregnancy benefits and parental benefits. The Arbitrator was entitled to reach the conclusions that he did and we see no reason to interfere with the remedy. The appeal is allowed with costs and the Arbitrator’s award is restored.”
Leave to Appeals Granted
Aboriginal Law: Jurisdiction Over Métis/Non-Status Indians
Canada (Indian Affairs) v. Daniels, 2014 FCA 101 (35945) Nov. 20, 2014
Are Métis/Non-Status Indians a federal or provincial jurisdiction.
Criminal Law: Automatic Roadside Prohibitions
Wilson v. British Columbia (Superintendent of Motor Vehicles), 2014 BCCA 202 (35959) Nov. 27, 2014
Is a “warn” breathalyzer reading enough to justify a driving prohibition.
Criminal Law: Automatic Roadside Prohibitions
Sivia v. British Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79 (35864) Nov. 27, 2014
Is a “warn” breathalyzer reading enough to justify a driving prohibition.
Criminal Law: Delayed Dial-a-Dope
R. v. Jordan, 2014 BCCA 241 (36068) Nov. 27, 2014
Is a 32.5 month delay constitutional.
Insurance: Automobiles; “Pay First, Fight Later”
Zurich Insurance Company v. Chubb Insurance Company of Canada, 2014 ONCA 400 (36002) Nov. 27, 2014
Who is a MV insurer.
Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113 (35990) Dec. 3, 2014
When may government consider “humanitarian and compassionate considerations”.
Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : Reconnu coupable de possession d’une arme à feu prohibée, le requérant se voit imposer un sursis de peine après que le tribunal eut déclaré inconstitutionnelle la peine minimale de un an prévue à l’article 95 (2) a) C.Cr. tel qu’il existait le 21 août 2007, soit au moment de la commission du délit.
Intitulé : R. c. Kaluza, 2014 QCCQ 11283
Juridiction : Cour du Québec, Chambre criminelle et pénale (C.Q.), Montréal, 500-01-010709-076
Décision de : Juge Robert Marchi
Date : 20 novembre 2014
PÉNAL (DROIT) — détermination de la peine — principes généraux — les peines et la Charte canadienne des droits et libertés — peine minimale — possession d’une arme à feu prohibée — article 95 (2) a) C.Cr. — modification législative — application de R. v. Nur (C.A. (Ont.), 2013-11-12), 2013 ONCA 677, SOQUIJ AZ-51070341 — cas hypothétique raisonnable — proportionnalité de la peine — inconstitutionnalité.
PÉNAL (DROIT) — garanties fondamentales du processus pénal — droit à la protection contre tous traitements ou peines cruels et inusités — possession d’une arme à feu prohibée — article 95 (2) a) C.Cr. — modification législative — peine minimale — application de R. v. Nur (C.A. (Ont.), 2013-11-12), 2013 ONCA 677, SOQUIJ AZ-51070341 — cas hypothétique raisonnable — proportionnalité de la peine — inconstitutionnalité.
PÉNAL (DROIT) — détermination de la peine — infractions relatives aux armes — armes à feu — arme à feu prohibée — possession — absence d’antécédents judiciaires — sursis de peine — interdiction de posséder des armes.
DROITS ET LIBERTÉS — droits judiciaires — protection contre tous traitements ou peines cruels et inusités — peine minimale — article 95 (2) a) C.Cr. — modification législative — possession d’une arme à feu prohibée — peine minimale — proportionnalité de la peine — peine cruelle et inusitée — inconstitutionnalité.
DROITS ET LIBERTÉS — réparation du préjudice — inconstitutionnalité — article 95 (2) a) C.Cr. — modification législative — possession d’une arme à feu prohibée — peine minimale — proportionnalité de la peine — sursis de peine.
Requête afin de faire déclarer inconstitutionnelle la peine minimale prévue à l’article 95 (2) a) du Code criminel (C.Cr.) telle qu’elle existait le 21 août 2007. Accueillie. Prononcé de la peine.
Le 26 septembre 2013, le requérant a été reconnu coupable d’avoir eu en sa possession, le 21 août 2007, une arme prohibée chargée, en violation des dispositions de l’article 95 (2) a C.Cr., et de possession à des fins de trafic de marijuana (cannabis). Au moment de la commission des infractions reprochées, l’article 95 (2) a) C.Cr. prévoyait, dans le cas de poursuites par voie d’acte criminel, l’imposition d’une peine minimale de un an d’emprisonnement. Le requérant conteste la validité constitutionnelle de la peine minimale, alléguant que celle-ci viole notamment l’article 12 de la Charte canadienne des droits et libertés.
Dans R. v. Nur (C.A. (Ont.), 2013-11-12), 2013 ONCA 677, SOQUIJ AZ-51070341, la Cour d’appel de l’Ontario (CAO) en est venue à la conclusion que la peine minimale de trois ans prévue à l’article 95 (2) a) contrevenait aux dispositions de l’article 12 de la charte et qu’elle ne pouvait être justifiée par l’article premier. Malgré le fait que cet arrêt a été rendu au regard de la peine minimale actuelle de trois ans, plusieurs des principes qui s’en dégagent et l’analyse à laquelle s’est livrée la CAO sont pertinents quant à la résolution du présent cas. Par ailleurs, dans R. v. Charles (C.A. (Ont.), 2013-11-12), 2013 ONCA 681, SOQUIJ AZ-51018117, la CAO a invalidé la peine minimale de cinq ans prévue à l’article 95 (2) a) (ii) C.Cr. et, dans R. v. Meszaros (C.A. (Ont.), 2013-11-12), 2013 ONCA 682, SOQUIJ AZ-51018115, elle a maintenu la validité constitutionnelle de la peine minimale de un an prévu à l’article 85 (1) a) en cas d’utilisation d’une arme à feu au moment de la commission d’un crime. Selon la CAO, il est impossible de concevoir un cas hypothétique raisonnable impliquant l’utilisation d’une arme à feu dans la commission d’un crime où la peine minimale de un an serait exagérément disproportionnée. Cela dit, en vertu du principe de retenue judiciaire, un tribunal ne doit traiter d’une question constitutionnelle que s’il est nécessaire de le faire pour la résolution du litige. Or, rien ne convainc qu’en l’espèce, en l’absence de la peine minimale de un an, le requérant se serait clairement vu imposer une peine de un an d’emprisonnement ou plus. Or, compte tenu des circonstances très particulières entourant la possession par le requérant de l’arme à feu, de sa motivation initiale qui l’a amené à se saisir de l’arme — à savoir qu’il voulait que son ami, qui avait cette arme au départ et qu’il a qualifié d’instable, ne puisse s’en servir —, l’absence d’antécédents judiciaires et le fait que les crimes reprochés datent d’il y a plus de sept ans, la peine minimale de un an d’emprisonnement constitue une peine cruelle et inusitée, en violation de l’article 12 de la charte. Le cas échéant, à la lumière de la deuxième étape de l’examen relativement au cas hypothétique raisonnable tel que défini dans Nur, il y aurait eu lieu de conclure que la peine minimale de un an va elle aussi bien au-delà de ce qui est nécessaire et va à l’encontre du principe de proportionnalité. Enfin, une analyse sous l’article premier de la charte ne peut justifier une peine qui est excessive au point de ne pas être compatible avec la dignité humaine. Par conséquent, l’article 95 (2) a) C.Cr. tel qu’il existait le 21 août 2007 est déclaré inconstitutionnel. Un sursis de peine est prononcé. Il est interdit au requérant de posséder des armes pendant 10 ans.
Réf. ant : (C.Q., 2013-09-26), 2013 QCCQ 11045, SOQUIJ AZ-51004416.
Le texte intégral de la décision est disponible ici
Mary Lynn Young and Alfred Hermida have published From Mr. and Mrs. Outlier To Central Tendencies: Computational journalism and crime reporting at the Los Angeles Times, forthcoming in Digital Journalism.
Here is the abstract:
This study examines the impact of computational journalism on the creation and dissemination of crime news. Computational journalism refers to forms of algorithmic, social scientific, and mathematical processes and systems for the production of news. It is one of a series of technological developments that have shaped journalistic work and builds on techniques of computer-assisted reporting and the use of social science tools in journalism. This paper uses the Los Angeles Times’ Homicide Report and its Data Desk as a case study to explore how technological adaptation occurred in this newsroom in the early twenty-first century. Our findings suggest that computational thinking and techniques emerged in a (dis)continuous evolution of organizational norms, practices, content, identities, and technologies that interdependently led to new products. Computational journalism emerges from an earlier and still ongoing turn to digital within broader organizational, technological, and social contexts. We place this finding in the local, situated context of the Homicide Report, one of the first crime news blogs to adopt computational journalism in North America.
Full text of proceedings have been published jointly for SW4LAW 2014: International Workshop on Semantic Web for the Law, and JURIX-DC 2014: The Second JURIX Doctoral Consortium, both held in December 2014 in Krakow, Poland.
Here are the contents:
SW4LAW 2014: International Workshop on Semantic Web for the Law:
JURIX-DC 2014: JURIX Doctoral Consortium 2014:
Videos of the presentations are available at: http://www.dailymotion.com/playlist/x3hyc5_DILA_open-law-le-droit-ouvert/
Prizes are scheduled to be awarded at an event to be held 17 December 2014 at DILA in Paris.
The projects developed during Open Law are listed at: openlaw.fr/projets-open-law
The Website for the Open Law Project, and the data sets used to develop these projects, are available at: openlaw.fr/
The Open Law Project has been organized by la Direction de l’information légale et administrative (DILA), Etalab, and NUMA.
One Twitter hashtag used for the event was #openlaw
Here is a description of Open Law Project, from the project’s Website:
Open Law est un programme de cocréation juridique organisé par l’Open World Forum (OWF), la Direction de l’information légale et administrative (DILA), Etalab et le NUMA et lancé le jeudi 30 octobre 2014 lors de l’Open World Forum 2014. Placé sous le signe de l’innovation et de lacollaboration, il a vocation a être alimenté durant toute une année par une multitude d’événements périodiques permettant d’approfondir, préfigurer et prototyper les différents projets et scénarios de services susceptibles d’être coconstruits.
Le programme s’appuie sur les jeux de données récemment diffusés en Open Data en France et a pour ambition de stimuler et dynamiser la réutilisation des données juridiques dans le cadre d’une innovation juridique collaborative et ouverte qui réunit le secteur public et privé.
Les objectifs de ce programme sont de :
Ce programme est ouvert à toute personne désirant contribuer, quelle que soit sa formation, son expérience ou encore ses compétences. […]
Android Studio Overview | Android Developers. – http://developer.android.com/tools/studio/index.html
Android Studio is the official IDE for Android application development, based on IntelliJ IDEA.
Jeremiah Ho of University of Massachusetts Dartmouth Law (above) led a webinar entitled “Flipping of the Law Classroom: Infusing Active Learning Through Technology.”
Here are some of his key points:
Challenges for law schools:
The Problem Method (active learning) is more compatible with law school.
Bar prep course & legal writing courses work well with the flipped method
Why merge Active Learning with the Flipped Classroom?
Variations of this theme:
The following resources may be helpful:
For more information on this topic, contact Professor Ho at firstname.lastname@example.org.
Video of the webinar:
Using the smartphone application Yik Yak, which allows people to submit anonymous comments visible to other nearby users, professors posted positive messages to students, wishing them luck on their exams, praising their work, and infusing an uplifting tone into the digital discourse. Unlike most users, the professors signed their names to their posts.
“Yik Yak has been a source of aggravation for people in the campus community,” said Geoff Holm, an associate professor of biology who developed the idea to “occupy” the app. “If this is going to be something that is driving campus culture, it’s important for faculty to have a presence.”
In September, Colgate students organized a 100-hour sit-in to protest what they believed to be institutionalized racism at the university. They cited racist posts on Yik Yak as one cause of their concern. Colgate’s president, Jeffrey Herbst, acknowledged the posts, calling them “appalling.”
After discussing his “take back the Yak” idea with several colleagues, Mr. Holm announced the effort, dubbed “Yak Back,” by email and Facebook. He estimates that more than 20 professors have participated.
One of Mr. Holm’s aims was to subvert Yik Yak’s reliance on anonymity.
“If we have opinions, it’s important to own them,” he said.
Valerie Morkevicius, an assistant professor of political science, said she hopes that seeing professors use Yik Yak will encourage students to think before posting potentially offensive comments.
“Maybe they would not be so free in saying some of the things they say if they know people whose opinions they care about are reading,” she said. “For me, what’s really great about this idea is it’s a way we can reach out to our students where they are. Our students live in this digital world, and we can help them navigate it more responsibly. We’re using their own media to try to reach them on some different levels.”
Ryan Solomon, an assistant professor of writing and rhetoric, expressed skepticism, however, about the positive messages his colleagues had posted.
“We were making it seem like Yik Yak is a fuzzy place where we all go to give each other group hugs,” he said. “If we were really gonna go onto Yik Yak and do what Yik Yak does, we would have to go on there and be brutally honest. What we were doing in some ways was not a fair reflection about the dynamics of Yik Yak, so we may have been making it seem more benign than it really is.”
However, Mr. Solomon added, he values the aspirations of the campaign, especially its effort to draw professors into the campus conversation.
Some students responded on Yik Yak by “upvoting” their professors’ posts and submitting appreciative comments.
The Yak Back is one of several ways people on the campus are responding to what Barbara Brooks, director of public relations and marketing, called a “turbulent semester.” The event took place two days after the university held a Candlelight Service of Reconciliation in the campus chapel to encourage reflection. According to Ms. Morkevicius, professors are drafting a petition to ask the university to deal with concerns about issues that include the use of anonymous social-media services to threaten individual students.