Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on research and writing, practice, and technology.
Research & Writing
This was my grade-10 English teacher’s expression for useless verbiage. Other ways to say it: throat-clearing, filler, circumlocution, BS. …
Is That an Assistant in Your Pocket?
I started this article a while back after reviewing a NY Times article entitled: “Siri, Alexa and Other Virtual Assistants Put to the Test” (http://ow.ly/XABKz) as it highlighted the issue I have with technologies employing the words “virtual assistant” to describe their product or gadget. …
In Ontario most court documents are filed in paper, with e-filing appearing mostly to be a distant dream. Similarly, court documents, other than originating documents, tend to be served by fax and not by email. Everyone loves that fax confirmation page despite the fact that emails can come with a read receipt.
So should we be allowed to communicate with the court through email? Should the court be encouraged to communicate with litigants via email?
Email is a blessing and a curse. It is easy to use. It is fast. It is convenient. But on the other hand, important emails get buried beneath the daily flood of messages, with each email appearing as important as the next.
But with the rise of self-represented litigants, the courts must be more accessible. In a recent court decision, Ontario Superior Court Judge Justice Fred Myers ordered that the registrar serve a copy of the endorsement and a Form 2.1A notice on all parties, including the self-represented plaintiff and defence counsel, by mail and by email. This was done to ensure that the plaintiffs and the defendants received notice of the fact that the court was considering dismissing the motion and possibly the full action for being frivolous, vexatious, or otherwise an abuse of the process of the court.
Ordering service by email was the right thing to do. Courts must reflect the times we live in. And today email is a common form of communication. People now check their emails far more often than their mailboxes. And when it comes to a potential dismissal of an action, it is crucial that notice is actually received. Especially for self-representated plaintiffs, who have a harder time navigating the complex legal system.
However, the chance of something important getting “lost” in an inbox can be high. That is why our courts should aim to eventually develop a system more sophisticated, like the Next Generation Court System in Israel. But for now email should suffice.
You can help the victims, survivors, and others affected by the tragic shooting at the Pulse nightclub in Orlando by donating to the organizations helping them directly.
Equality Florida, which provides education about LGBTQ issues and advocates for equal rights for Florida’s LGBTQ community, set up a GoFundMe campaign to support the victims and families. (Be wary of other GoFundMe campaigns and avoid the usual raft of Twitter and Facebook scams.)
Blood banks in the area are full, but if you are in or near Orlando you should return in a few days. And since sexually active gay men can’t donate, others need to.
Remember that one-time donations are helpful, but only temporarily. Consider making an ongoing contribution if you can. Equality Florida, for example, offers a “Sustaining gift” option to commit to monthly or quarterly payments indefinitely or for up to one year. Ongoing contributions allow an organization to make budget decisions and do more good going forward, not just temporarily.
Thank you for helping.
How to Help the Pulse Nightclub Victims and Survivors was originally published on Lawyerist.com.
This article is by Ian Hu, claims prevention and praticePRO Counsel at LAWPRO.
We have received inquiries regarding whether a defendant’s counterclaim, crossclaim, or third party claim is also dismissed when the main action is administratively dismissed under Rule 48.14. The answer depends on the kind of claim. The defendant’s counterclaim and crossclaim will be automatically dismissed unless certain steps are taken within prescribed timelines. In the case of a crossclaim against the defendant, the dismissal order will need to be served on the crossclaimant. See the analysis below.
As we know, Rule 48.14(1) sets out the circumstances under which an action may be dismissed for delay. Actions that are not set down for trial within 5 years of commencement will be administratively dismissed without notice. Actions commenced prior to January 1, 2012 have until January 1, 2017 to set the matter down.
Counterclaims, crossclaims, and third party claims are dealt with under Rule 48.14(9), which states: “Rules 24.03 to 24.05 (effect of dismissal for delay) apply to an action dismissed under subrule (1).” This requires us to cross-reference Rules 24.03 to 24.05.
Let’s start with counterclaims, which is dealt with under Rule 24.03:
24.03 Where an action against a defendant who has counterclaimed is dismissed for delay, the defendant may within thirty days after the dismissal deliver a notice of election to proceed with the counterclaim (Form 23B), and if the defendant fails to do so, the counterclaim shall be deemed to be discontinued without costs. R.R.O. 1990, Reg. 194, r. 24.03.
This means when an action is dismissed under Rule 48.14, the defendant’s counterclaim will be dismissed without costs within 30 days absent a notice of election to proceed.
Crossclaims and third party claims are dealt with under Rule 24.04(1):
24.04 (1) Unless the court orders otherwise, where an action against a defendant who has crossclaimed or made a third party claim is dismissed for delay, the crossclaim or third party claim shall be deemed to be dismissed. O. Reg. 394/09, s. 10 (1).
(1.1) Where an action against a defendant against whom a crossclaim has been made is dismissed for delay, the crossclaim shall be deemed to be dismissed thirty days after a copy of the order dismissing the action is served on the crossclaiming defendant under rule 24.02.1, unless the court orders otherwise during the thirty-day period. O. Reg. 394/09, s. 10 (1).
This means when an action is dismissed under Rule 48.14, the defendant’s crossclaim and/or third party claim is dismissed at the same time. If the defendant is also defending a crossclaim, that crossclaim will be dismissed 30 days after the order dismissing the action is served on the classclaimant.
LAWPRO’s Rule 48.14 Transition Toolkit can help you navigate the new Rule 48.14 and avoid an administrative dismissal. The toolkit provides an analysis of Rule 48.14 and the relevant deadlines and timelines. We looked at why files stall and what you can do to prevent dismissals. A firm transition checklist can help you put in place firm-wide policies to ensure files do not slip through the cracks, and an individual file checklist can be used to ensure each individual file is properly tickled. A file progress plan can help you keep on top of all the steps in a litigation file, and is pre-filled with the basic steps
“But a breakthrough won’t be hard. We only need to look at things from a slightly different angle—which might happen in a hundred years or this afternoon.”—David Gelernter
One thing that came up during the “Computers and Legal Research” session that I reported on in my last post was the issue of copyright, specifically: Does AI create new, secondary IP rights? Or, will a machine be able to claim copyright? Very interesting questions. I’m not sure if this is what Nate Russell meant when he wrote at the end of his excellent post from last week, that plans to explore issues in copyright, but certainly a question worth exploring.
I was reminded of that short and inconclusive exchange when I saw this post from a couple of weeks ago by Peter Dockrill, “Artificial intelligence should be protected by human rights, says Oxford mathematician.”
Normally, and also something touched on during the afore mentioned CALL session, AI brings with it a healthy dose of FUD (that’s fear, uncertainty, doubt not Elmer) leaving us to wonder if we should be thinking about protecting ourselves from potentially harmful or dangerous AI or robotic activities. However, as Dockrill reported in Science Alert, the University of Oxford mathematician Marcus du Sautoy flips this thinking around suggesting that, “once the sophistication of computer thinking reaches a level basically akin to human consciousness, it’s our duty to look after the welfare of machines, much as we do that of people.”
du Sautoy, who has been Professor of the Public Understanding of Science at Oxford since 2008, notes elsewhere that consciousness is now measurable:
“The fascinating thing is that consciousness for a decade has been something that nobody has gone anywhere near because we didn’t know how to measure it.
“But we’re in a golden age. It’s a bit like Galieo with a telescope. We now have a telescope into the brain and it’s given us an opportunity to see things that we’ve never been able to see before.
“And if we understand these things are having a level of consciousness … we might well have to introduce rights. It’s an exciting time.”
Can a machine experience the world like a human?
“The spectrum’s top edge is what we might call thinking-about—pondering the morning news, or the daffodils outside or the future of American colleges. At the opposite end, you reach a state of pure being or feeling—sensation or emotion—that is about nothing. Chill or warmth, seeing violet or smelling cut grass, uneasiness or thirst, happiness or euphoria—each must have a cause, but they are not about anything. The pleasant coolness of your forearm is not about the spring breeze.” [original emphasis]
Since computers are all about, well computing, will they be able to take the data elements representing that summer breeze and then calculate a human “feeling?”
Dockrill’s post concludes with this statement from du Sautoy:
“Philosophers will say that [machine consciousness] doesn’t guarantee that that thing is really feeling anything and really has a sense of self. It might be just saying all the things that make us think it’s alive. But then even in humans we can’t know that what a person is saying is real.”
What do you think? Will machines be able to feel and then draw on their emotional experiences? If they do achieve this human like quality will machines need this kind of “human rights” protection? Maybe I should have called this post, “Questions, Nothing More than Questions.”
As your solo or small firm grows, you will probably consider hiring an associate attorney to help with the work. And if some day there just isn’t as much business as you’d hoped there would be or the hire is not working out, there’s a chance you’ll need to terminate the employment. Here are some things to consider if you are thinking you need to fire an associate attorney.“The process of firing someone starts when you hire them.”
In general, most employees in most states are “at-will,” meaning they can quit at any time and you can fire them at any time. However, there are some illegal reasons for termination, including discrimination, whistle-blowing, military duty, violation of the Family Medical Leave Act, or jury duty.When You Should Fire an Associate Attorney
Hopefully, you’ll never need to fire an associate attorney you hired. But once you decide that it’s time to fire your associate, here are some keys to minimizing potential problems.
“The process of firing someone starts when you hire them,” Attorney Gordon Mammel of Randstad Professionals stated. “Have them sign the necessary agreements, non-disclosure, non-competes. Send an email at the onset of employment so they have a copy.”
Ideally, the termination won’t come as a surprise to the employee. “Be clear in setting expectations at the start of the employment relationship, and set up regular check-in meetings to ensure that your employee knows if they are meeting or not meeting expectations,” Human Resources Consultant Laura Norris said. “An employee is less likely to pursue legal action if they aren’t surprised and were given the opportunity to impact their outcomes.”
There is no single reason an associate attorney may need to be fired, but a common warning sign is that you told your associate to improve and they don’t improve or worse … they don’t even try. But there are also other reasons to let go of an associate besides poor work performance.Stealing Clients
If you have an associate stealing clients for a new firm they want to start, it’s a given that they have to be let go (which is, after all, what they apparently want). Once you have determined the associate is trying to steal clients, the decision to fire them is an easy one.Time Drain
Sometimes, the associate attorney you hired is simply not a good fit. You might spend so much time managing and worrying about them and their performance that your entire firm suffers.Disrespectful Behavior
An employee might undermine you. They might complain about you or even openly challenge you. Frequently, managers who have fired employees due to this have only one real regret about the process: they didn’t pull the trigger earlier.Client Complaints
If one of your clients feel they aren’t being taken care of by your associate attorney, they will soon be looking for a new law firm. If a client takes the time to complain to you, take it seriously. It might have been hard for them to get the nerve to talk to you about their dissatisfaction instead of just firing your firm and moving to new representation. The client will want to know what will change after their conversation with you.Prepping for the Meeting
You should prepare several items before the meeting, including:
Plan in advance whether you will let them pack up their things or have them packed. Most employers limit computer access immediately after the termination (or even during or prior to the meeting). Ask the employee to return company property like cell phones, keys, key cards, etc. Have a witness present for the termination meeting if possible. Many wrongful termination suits hinge on what is said in this final meeting and a witness can be critical.The Day of Firing
Most experts agree you should try to fire someone earlier in the week. If you fire someone on their way out the door on Friday, they have all weekend without access to many employment-based resources. It’s better for the employee if they can call the unemployment office the next day or dive into their job search.
Don’t have someone else fire an associate on your behalf. Assuming it’s your small firm, it’s best if the news comes from you. The meeting should be done in person. Never fire someone over the phone, email, or text. Tell the employee at the beginning of the meeting of your decision to let them go. You should be honest, brief, and direct. After you tell them about the termination at the beginning of the meeting, the remainder of the time should be for answering logistical questions. Ideally, this meeting will be under fifteen minutes.To Severance or Not to Severance
Severance packages might seem counterintuitive if you are firing someone; a severance package is essentially agreeing to pay someone who isn’t working for you anymore. But Norris recommends that you at least consider it.
Severance can help ease the process for the impacted employee. If you only give them two weeks, the employee might not sign. In large companies, they might give 60 days or more. It can cost several thousand dollars to hire a lawyer to fight a wrongful termination claim.
One employment attorney I spoke with mentioned that severance packages are almost “expected in the professional world. Doctors, dentists … there is almost always some sort of severance with a release of claims.” These releases can’t cover everything, however. Workers’ compensation claims and some discrimination claims may not be waived.
“Never stand in the way of unemployment,” Norris said firmly. “If you cut off their access to unemployment, you’re forcing the employee to consider litigation. Only if somebody stole from the company, or something egregious, is it worth contesting.”
An employment attorney mentioned the decision to contest the unemployment claims might depend on the size of the office. “In a small firm, not contesting unemployment could raise your unemployment insurance rates. But you can only contest the unemployment if the termination is performance-based.”Not Losing Clients
One of the biggest concerns with firing a lawyer from your firm is whether they will try to take clients. It doesn’t happen as often as people think, but if the associate is arguing they should be able to keep clients, Mammel noted, “clients have relationships with individual lawyers, but also the law firm. When someone goes off on their own, there will be risks with them. Does the new person have the same level of malpractice insurance and administrative support that our needs demand? Is this person starting their own firm going to be able to give us the attention that we are used to?”Firing is Hard for Both Parties
Firing anyone is difficult. It’s hard for both the person firing and the person being fired. In a small office, it can be even more difficult. Even though you’re the one firing the employee, it can feel like a failure on your part. You may have hired the person. Or you didn’t give the associate you hired enough guidance or supervision to succeed.
People who get fired have a wide variety of reactions. Once they realize they are being fired, many people simply want to get out of the office as quickly as possible. Others will react emotionally, which can range from sobbing to angry reactions.
But the effect on the person doing the firing is real as well. Plan on having some time to decompress immediately after the meeting, whether that means leaving the office to go to lunch or taking a walk. Do something to help yourself mentally reset.
Do judges and former judges owe a duty of confidentiality? This might seem like a silly question. After all, the legal system zealously protects judicial deliberations from compelled disclosure. However, when it comes to recognizing any restriction on judges’ ability to voluntarily disclose or use such deliberations, to date there has been silence. Hopefully, that may soon change as various actors consider the implications of retired judges returning to the practice of law.
The Supreme Court has recognized an absolute privilege that protects the confidentiality of communications between judges in cases: see Mackeigan v. Hickman (1989) and Ontario (Public Safety and Security) v Criminal Lawyers’ Association (2010). In the latter case, the Court stated that “memos and notes leading to a judicial decision are not subject to public access. This would impair the proper functioning of the court by preventing full and frank deliberation and discussion at the pre-judgment stage.” (para 40).
Yet despite the fact that confidentiality is the sine qua non of privilege – there can be no privilege without confidentiality – no statute, rule of the common law or ethical rule imposes any confidentiality obligations on judges. As Western University Professor Stephen Pitel wrote in his 2011 article “Revising Canada’s Ethical Rules for Judges Returning to Practice”, the Canadian Judicial Council should define the boundaries of a judicial duty of confidentiality.
As Pitel’s statement implies, the Canadian Judicial Council’s Ethical Principles are strikingly silent about confidentiality for judges. So are statutes and the common law which is not surprising because to date there has been little indication of any “mischief” arising from the use or disclosure of confidential information by judges.
However, the Federation of Law Societies of Canada’s Model Code Committee is currently studying the issue of rules for retired judges returning to practice. Most of the discussion focusses on the matter of retired judges appearing in court and the Law Society of Upper Canada recently amended its rules to restrict the ability of former judges to do so. But to its credit, the Federation’s Model Code Committee inspired by Professor Pitel’s thorough and thoughtful article and by the comments of other academics, lawyers and judges over the past decade, is casting its net more broadly.
One of the questions that the Federation’s Model Code committee is asking is about “the propriety of a former judge providing legal advice about a case in which he or she participated.” Full disclosure: this question was raised in a letter written by academics including myself to the Federation some years ago. Kudos to the Federation’s Model Code Committee (chaired by Vancouver lawyer and former Law Society of BC President Gavin Hume, QC) for taking up the thorny but important ethical issues surrounding retired judges returning to practice.
The Supreme Court takes a very hard line on confidentiality for law clerks, going so far as to make them sign a confidentiality agreement before they start work that requires them to agree never to disclose confidential information learned in the course of their one-year employment. A number of years ago, the Supreme Court ominously warned all former Supreme Court clerks that cooperating with an American social science research project would violate that lifelong confidentiality covenant. No similar obligations exist for judges. There should.
Current and former judges should owe a duty of confidentiality to protect the operation and the integrity of the administration of justice. This is the justification for the privilege but it also recognizes that the privilege does not belong to individual judges – it belongs to the administration of justice as a whole. Anything that gives the appearance that former judges may possibly be relying on confidential information learned while they were judges has the potential to undermine public confidence in the integrity of the administration of justice.
Others have also raised the concern that the use of confidential judicial information involves trading on the lustre and the independence of the judicial office.
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from seventy recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
The Honourable William Vancise, the former Chair of the Copyright Board of Canada, recently delivered a combative (and entertaining) speech at an ALAI conference in which he took the critics of the board head on. Although the conference was focused on the future of the Copyright Board, many lawyers who regularly appear before the board seemed reluctant to air their concerns in public. Instead, it fell to Vancise to liven the proceedings. The board has posted the speech online and it is well worth a read. I was in the audience and came in for criticism for this 2013 article titled It’s Time to Admit the Copyright Board is Broken. …
Ruthann Robson, if you do not already know her, is a wonderful feminist legal scholar, writer (in many genres), and teacher. You can find out more about her here, at her website, and here, in past IFLS posts about her (there’s video of a talk she gave at Osgoode, here). She sent over the following recommendation for a paper written by one of her former students, AJ Wipfler (CUNY Law 16). Whether for the substantive subject matter or for the joy of thinking about the student/prof relationship and how it can be used to build scholarship and advocacy, or just to see an example of writing enthusiastically about someone else’s work, have a read ….
Canadian Class Actions Monitor
Hot Off the Press – Canadian Contractual Interpretation Law 3rd Edition
Geoff Hall, senior litigator at McCarthy Tétrault, authors the newly published third edition of Canadian Contractual Interpretation Law. The book clearly sets out the principles governing the interpretation of contracts in Canada, particularly in light of the landmark decisions of the Supreme Court of Canada in Sattva and Bhasin. These two cases – both of which cited the second edition of Mr. Hall’s book, and were successfully argued by litigators from the firm – transformed contractual interpretation in fundamental ways, firstly by recognizing contractual interpretation as a highly fact-driven exercise and secondly by recognizing an organizing principle of good faith in Canadian contract law. …
Susan on the Soapbox
Physician Assisted Dying: How the SCC got there
It’s a paradox. Your right to die is an affirmation of your right to live. In a unanimous decision of astonishing clarity the Supreme Court of Canada (SCC) decided that the Criminal Code prohibition on physician-assisted dying violates your Charter rights to life, liberty and security. Here’s how they did it. Section 7: right to life, liberty and security — Those who are grievously and irremediably ill may take their own lives prematurely rather than risk of being incapable of ending their lives later when their suffering becomes intolerable. …
National Magazine Blog
After June 6th: What was the remedy in Carter?
It now appears inevitable that Bill C-14 will not become law before the “declaration of invalidity” issued in Carter comes into effect. I need the scare quotes because there has lately been some debate, provoked by Professor Peter Sankoff (see here and here), as to what remedy the Supreme Court actually ordered in that case. Peter argues that the court struck down section 241(b) in its entirety and that, after June 6th (when the suspension expires), we will be left with no criminal prohibition of aiding and abetting suicide under any conditions. …
*Randomness here is created by Random.org and its list randomizing function.
Rocket Docket Legal Software is Windows-based document assembly software that leverages the power of HotDocs and Microsoft Outlook to fully automate legal forms in common practice areas such as criminal law, real estate, and divorce proceedings.Details
Much of the drafting work that attorneys do is repetitive, such as entering the same client data in multiple places and cutting and pasting boilerplate text back and forth between documents. When this happens, the possibility of error increases dramatically. Rocket Docket Legal Software helps lawyers avoid this problem by guiding them through a custom interview and then customizing the forms with the case and contact information. Rocket Docket then automates the process behind the scenes, merging everything into the proper forms and letters. This means an attorney can save significant time and remain error-free. Rocket Docket also incorporates jurisdiction and practice area-specific calculators, ensuring that no miscalculations occur.
This systemization is especially important when jurisdictions update laws and filing requirements and the court will no longer accept outdated forms. For example, in 2015 New York adopted a number of new rules that altered many of the uncontested divorce forms and formulas. If an attorney is using automation software that does not reflect the new forms, those filings might be rejected, which poses a serious problem.
Rocket Docket Legal Software incorporates all of the recent New York uncontested divorce changes into its automated workflows. Attorneys using Rocket Docket Legal Software can be sure they are using the updated forms. They can also be certain that their maintenance and child support calculations are correct, as the software will automatically calculate pursuant to the statutory formulas and insert that information into the correct form.How to Get It
Subscriptions to Rocket Docket’s library of automated forms begin at $40/month, with custom plans for multi-subscriptions and additional workstations. Rocket Docket also offers free initial set-up support to get users working quickly.
Rocket Docket Legal Software: Ensuring You Are up to Date with Automated Forms was originally published on Lawyerist.com.
Last night Dean Strang & Jerry Buting, two American attorneys, stopped by in Toronto to give a talk. The lawyers are known from the Netflix original crime documentary, Making A Murderer, which might be Netflix’s most successful show to date.
Strang and Buting were defence lawyers for Steven Avery, a man from Manitowoc County, WI who was exonerated through DNA testing after serving 18 years of a 32 year sentence for rape and attempted murder. The controversy over the documentary though deals with Avery’s second charge, over the murder of another woman after his release. The purpose of the show appears to demonstrate that this might be Mr. Avery’s second wrongful conviction.
The documentary highlights some of the numerous inconsistencies with the investigation and trial, the shortcomings in the evidence, and most controversially, the accusation of police corruption and tampering. Transcripts and documents from the trial are available here.
If nothing else, the documentary has been successful in highlighting the importance of lawyers within the legal system, and the challenges that a criminally accused faces when dealing with the full brunt of the resources of the state. Lay viewers develop a far better appreciation of the role of criminal defence lawyers. This show has done more to assist the reputation of lawyers than any public relations, communications, or educational campaign ever created by lawyers themselves.
Strang and Buting focused much of their talk contrasting the American and Canadian legal systems as it relates to criminal justice. For example, the judicial independence fostered by appointments, rather than elections, received some praise.
But most of the attendees were interested in facts or distinctions related to the Avery case. In other words, the public wanted to know whether a case like Steven Avery could happen in Canada. Although limited by professional responsibilities related to confidentiality, Strang and Buting could not make much direct reference to the case but still highlighted important distinctions between the two jurisdictions.
Strang and Buting drew attention to one of the most significant drawbacks of the American justice system – the pretrial publicity and cameras in the courtroom.
Neil Vidmar of Duke University School of Law conducted a comparative analysis in 1996 of pretrial prejudice between Canada and America. One of the major differences that he found was the controls that the judiciary can place on mass media to prevent pretrial prejudice. He looks at ss. 486 and 537 of the Criminal Code in light of the competing Charter values under ss. 11(d) and 2(b). The defendant’s right to ban the content of a proceeding is frequently invoked where a case is likely to draw public attention.
The Canadian Judicial Council has an excellent primer on when media bans are used in Canada, and why, in The Canadian Justice System and the Media.
The other factors that Vidmar cites are the exclusion of cameras in the courtroom, and s. 649 of the Code prohibiting jurors for disclosing deliberations.
Canadians periodically have a debate about whether we should have cameras in our courtrooms, aside from proceedings in the Supreme Court. In the Avery case, when coupled with extensive pre-trial media coverage, the jury pool was possibly irreparably tainted. Out of the jury pool that was retained, 129 indicated that based on media coverage alone they believed Steven Avery was guilty.
During the trial, the prosecution conducted daily media interviews. At least some of this content made its way to the jury.
One of the jurors in the Avery case was found guilty of misconduct after talking publicly about the case at a supper club. Another, who was not recused, was told by her husband all of the new coverage of the trial, including proceedings when the jurors were asked to leave the room.
The lack of restrictions on jurors after the trial also means that several jurors have come forward to recount how deliberations proceeded, which gives rise to interesting questions. The role of a juror who was the father of a Manitowoc County officer itself seems significant.
Strang and Buting also made more generalized comments on how law enforcement conduct interviews. The widespread use of the Reid technique, in both Canada and the U.S., is likely the cause of an unknown number of false confessions.
The Reid technique was deeply criticized by Provincial Court Justice M.C. Dinkel in R. v. Chapple, where an inculpatory statement was obtained from an accused, despite at least 24 attempts by the accused to attempt to remain silent.
The judge concluded in this case, due to a variety of factors, that this “was guilt a presumptive interrogation disguised as truth‑seeking interview” which overrode any voluntariness of the statement, as required in R. v. Oickle,
121 Although there is no law prohibiting the use of The Reid Technique, I find that it has the ability to extinguish the individual’s sacred legal rights to be presumed innocent until proven guilty and to remain silent in the face of police questioning. Innocence is not an option with the Reid Technique. Those who defend the Reid Technique may suggest that the problem lies with the interrogators who misuse the technique and not the technique itself. They may also say that the technique is intended to be used only in circumstances where the police are sure of an accused’s guilt. These factors are of little solace to me and of no assistance to those innocent individuals who have given false confessions over the years at the hands of Reid Technique interrogators.
This danger is even more pronounced with children, as with Steven Avery’s nephew, Brendan Dassey, or where there are learning disabilities and lower intelligence.
In 2010, Brent Snook et al published a paper, Reforming Investigative Interviewing in Canada, calling for significant reform in interviewing techniques. They propose a PEACE process to maximize the quality and quantity of information obtained by interviewees:
1. Preparation and planning: Interviewers are encouraged to have intimate knowledge of case files before commencing an interview and to establish a schedule with a set of objectives and aims to be met.
2. Engage and explain: The interviewer explains the interview’s purpose, introduces those present in the room, where applicable administers the police caution and Charter rights, establishes rapport with the interviewee and engages them in conversation.
3. Account: Involves obtaining an account of the event by using the cognitive interview (typically used in interviewing agreeable interviewees) and conversation management (for less agreeable interviewees)….
4. Closure: Ending the interview by summarizing the main points that emerged, giving the suspect an opportunity to correct any part of the summary or add information, and explaining what will happen in the future.
5. Evaluate: Involves evaluating the information obtained from the interview and how it affects the progress of the investigation and the interviewer’s performance.
Wrongful convictions do happen in Canada. At least when they do we don’t have to deal with the unpleasant situation of a wrongful execution. Fortunately for Steven Avery, he does not live in one of the 31 states that still have capital punishment.
Lawyers who have fallen behind the times often try what probably seems like a good solution: hire a young digital native and give them the job of updating the firm’s technology.
That isn’t always the intent. But as many young lawyers have found out, the “computer stuff” often falls into their laps.
While it’s true that young lawyers are much more comfortable with smartphones and social media than the average lawyer-of-a-certain-age, there is no reason to assume they are competent to do everything that involves a computer. Young lawyers may understand Snapchat, but good luck asking them to format a Word document properly, encrypt an email, or create a paperless workflow. Those aren’t skills picked up while posting selfies to Instagram (though you might have a slight advantage the next time you need to introduce a tweet into evidence).
Legal tech competence must be deliberately acquired—ideally by every lawyer and staff member at the firm. You can outsource IT to a professional, but even then you need to be competent enough to understand the advice you are given.
You can’t meet your obligation to be technologically competent if you don’t understand your IT consultant’s recommendations. Or the recommendations of your young associate.
But while you shouldn’t force your young associate to be the firm’s de facto IT consultant, you should listen when they (or anyone else who works at or with your firm) complain about your hardware, software, or systems. Young associates may be extra sensitive to areas where you or your firm need improvement.
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. It’s a summary of all appeals and leaves to appeal granted, so you know what the S.C.C. will soon be dealing with ((May 12 – June 8, 2016 inclusive).
Professions: Professional Secrecy in Québec
Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20 (35892)
Professional secrecy is a principle of fundamental justice within the meaning of s. 7, and must remain as close to absolute as possible. A requirement under the federal Income Tax Act constitutes a seizure within the meaning of s. 8 of the Charter. A.G. Canada and CRA have not established it is absolutely necessary here to impair professional secrecy, and because the impugned provisions do not minimally impair the right to professional secrecy, they cannot be saved under s. 1.
Professions: Solicitor-Client Privilege
Canada (National Revenue) v. Thompson, 2016 SCC 21 (35590)
Given the holding in Chambre des notaires that the exception contained in the definition of “solicitor-client privilege” in s. 232(1) is constitutionally invalid, CRA’s request that the lawyer here be compelled to disclose must be rejected; information contained in those documents is presumptively privileged, and its disclosure cannot be required unless a court first determines whether solicitor-client privilege actually applies.
Leaves to Appeal Granted
Criminal Law/Securities: Trial by Jury
Can there be a trial by jury for provincial Securities Act changes.
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 fraude, de complot pour fraude et d’abus de confiance, l’ancien maire de Boisbriand Robert Poirier est condamné à une peine d’emprisonnement de 18 mois.
Intitulé : Directeur des poursuites criminelles et pénales du Québec c. Poirier,
2016 QCCQ 3775
Juridiction : Cour du Québec, Chambre criminelle et pénale (C.Q.), Terrebonne (Saint-Jérôme), 700-01-101736-117
Décision de : Juge Normand Bonin
Date : 20 mai 2016
PÉNAL (DROIT) — détermination de la peine — opérations frauduleuses — fraude — gouvernement — complot — maire — stratagème — partage des contrats — attribution de contrats à des bureaux d’ingénieurs — versement de sommes d’argent à un parti politique — accusé âgé de 56 ans — absence d’antécédents judiciaires — abus de confiance — revue de la jurisprudence — cas inapproprié au prononcé d’une peine d’emprisonnement à purger au sein de la collectivité — dissuasion générale et spécifique — réprobation sociale — détention — probation.
PÉNAL (DROIT) — détermination de la peine — infractions dans l’application de la loi et l’administration de la justice — corruption — abus de confiance — peine concurrente.
Prononcé de la peine.
L’accusé a été reconnu coupable sous deux chefs de fraude (art. 380 (1) a) du Code criminel (C.Cr.)) et de complot pour fraude (art. 465 (1) c) C.Cr.) ainsi que sous un chef d’abus de confiance (art. 122 C.Cr.) commis durant la période où il était maire de la Ville de Boisbriand, soit entre le 1er janvier 2000 et le 12 juillet 2005. Alors qu’il exerçait les fonctions de maire, avec la complicité de son organisateur politique et de représentants de bureaux d’ingénieurs, il a participé à l’installation et au maintien de stratagèmes de collusion et de corruption pour contourner la loi, les règles d’éthique et les processus d’adjudication des contrats, de façon à organiser le partage des contrats provenant de la municipalité entre différents bureaux d’ingénieurs choisis par lui. Ces derniers étaient des commanditaires majeurs pour les activités de Boisbriand et celles du parti municipal de l’accusé. Les fonds amassés allaient soit directement au parti ou à des organismes caritatifs choisis par l’accusé et l’organisateur de son parti. Leur participation financière était une obligation et le seul moyen d’obtenir, en fait, une part des contrats de la municipalité. Alors que la poursuite réclame une peine de 26 mois à 6 ans de pénitencier, la défense suggère une peine d’emprisonnement à purger au sein de la communauté.
Il est impossible d’établir hors de tout doute raisonnable la perte pécuniaire subie en raison de l’absence de concurrence et du fait pour la municipalité d’être privée de la meilleure offre. La fraude a entraîné pour la municipalité des pertes de centaines de milliers de dollars. Quant au degré de préméditation, les accusations s’échelonnent sur cinq ans. Le stratagème de fraude comportait un certain niveau de complexité puisqu’il requérait l’entente entre plusieurs bureaux d’ingénieurs et divers fonctionnaires. L’accusé ne reconnaît pas son crime et n’a pas de remords, et ses explications visant à justifier les faveurs reçues ne sont pas crédibles. Le discours de banalisation dont il s’est constamment servi pour laisser entendre que sa pratique était légale favorise l’émergence d’une culture de déviance et de transgression des règles établies tout en cherchant à maintenir auprès de l’opinion publique une image favorable. Il n’a effectué aucun remboursement et n’a démontré aucune intention de le faire. Âgé de 56 ans et père de 3 filles majeures, il n’a pas d’antécédents judiciaires et affiche un faible risque de récidive. Malgré toute la médiatisation de ces accusations, il a réussi à maintenir un certain niveau d’emploi. Enfin, il y a lieu de tenir compte de l’importance des délais écoulés, soit 10 ans entre la fin de la commission des crimes et le prononcé de la peine. Parmi les facteurs aggravants se trouvent l’abus de confiance répété, l’importance, la complexité et la durée du stratagème ainsi que le préjudice financier causé à la collectivité. Cela dit, une peine de pénitencier n’est pas appropriée. Par ailleurs, l’abus de confiance commis par une personne dont la société requiert, par sa législation même, un haut niveau de probité doit être dénoncé et, de ce fait, l’emprisonnement avec sursis n’est pas non plus approprié en l’espèce. Le message de dissuasion doit être sans équivoque. La collusion et la corruption constituent une culture criminelle et les conséquences ont été majeures pour les citoyens de Boisbriand. Les manoeuvres de l’accusé ont contribué à miner les fondements démocratiques de la société et à installer un discrédit majeur sur le fonctionnement des administrations publiques. Les objectifs de dissuasion spécifique et générale doivent primer l’objectif de réhabilitation. L’accusé ne bénéficie d’aucun des facteurs d’atténuation de la peine se trouvant dans R. c. Berniquez St-Jean (C.Q., 2014-09-09), 700-01-127016-148, R. c. Zambito(C.Q., 2015-11-10), 2015 QCCQ 10999, SOQUIJ AZ-51229073, 2015EXP-3299, J.E. 2015-1830, et R. c. Zambito (C.Q., 2015-11-10), 2015 QCCQ 11687, SOQUIJ AZ-51233619; les autres jugements cités où une peine d’emprisonnement avec sursis a été prononcée ne trouvent pas application non plus. La peine doit refléter la réprobation sociale. Par conséquent, l’accusé est condamné à 18 mois de détention, assortis d’une probation de 3 ans. Il devra payer la suramende compensatoire sous chacun des chefs d’accusation.
Le texte intégral de la décision est disponible ici
I wonder what would happen if one trained an LSTM network with a couple million court opinions plus code and regulations. Would it be able to answer even a simple legal question?
An article in the most recent ABA Litigation Journal highlights the unique role of lawyers in leveraging the Internet to increase access to justice by constructing the “justice layer” of the internet.
If we want to do more than witness the process unfold, we must consciously and actively build the justice layer of the Internet. Globally, this means we must not only reinvent how we make law in cyberspace but also catalyze the creation of justice-related technologies.
The authors propose that the widespread availability of access to information through traditional computing and mobile devices has the potential to increase access to justice in “real time, across borders, across disciplines, and across a huge mass of stakeholders.” This “justice layer” of the internet may better meet the needs of those navigating the justice system who might otherwise not have the funds to afford resources or representation.
However, it is clear that technology is not a simple fix for closing the justice gap. Access to justice is not a novel or isolated problem, but rather a pervasive and complex issue that requires not only technological innovation but changes in the legal system itself.
The Justice Index, a project of the National Center for Access to Justice at the Benjamin N. Cardozo School of Law, chronicles the impact of emerging technologies and access to justice.
New data from the 2016 Justice Index released last month evaluates the performance of each state in implementing best practices in their civil justice systems. The index analyzed programs and policies from the number of legal aid attorneys per capita, the availability of resources for people representing themselves in legal matters, language assistance for non-English speakers, and support for individuals with disabilities.
Each state—plus Washington D.C. and Puerto Rico—received individual scores in those four areas and a composite score for all four combined. At the top of the list, representing the most access and availability: Washington D.C., Massachusetts, and Hawaii. At the bottom: Missouri, Puerto Rico, Wyoming.
David Udell, the National Center for Access to Justice’s executive director, says that the biggest story in the 2016 Index is the progress courts have made to help individuals who do not have lawyers. Nearly half of all state allow judges to help people represent themselves in court and 20 states now encourage the use of plain English in the courtroom rather than legalese.
While the data tells a story of some progress in adopting tools and programs to make justice more accessible, some of its findings show much less improvement. There is less than one legal aid lawyer for every 10,000 low-income Americans who qualify for legal aid, leaving anyone who can’t afford a lawyer to fend for themselves in a country with one of the highest concentrations of lawyers in the world.
The legal field’s recent progress in leveraging new technology to increase access to justice is welcome, but, as the Index makes clear, the profession has a long way to go.
The Golden Age of MOOCs is over and Why I hate Coursera · Stanley http://reachtarunhere.github.io/2016/06/11/Golden-Age-of-MOOCs-is-over-and-why-I-hate-Coursera
The College of Law Practice Management InnovAction Awards is a worldwide search for lawyers, law firms, and other deliverers of legal services who are currently engaged in some extraordinary innovative efforts. The goal is to demonstrate to the legal community what can be created when passionate professionals, with big ideas and strong convictions, are determined to make a difference.
Each year at its Futures Conference, the College of Law Practice Management presents the coveted InnovAction Awards to those unsung heroes and rising stars within the legal profession who dare to think differently and succeed by doing so.
Submit an entry for your own organization or encourage one of your clients to participate. The deadline for entries is June 15, 2016.
To learn more, visit the How to Enter page of the College’s website or read and share the InnovAction Awards news release.
Related “Proper Deposition Objections”
Depositions are costly, time consuming, and exhausting. It can also be a complete waste of both your time and money. Before you take a deposition, make sure you really need to.Depositions for the Wrong Reasons
The decision to depose a witness is sometimes used as a lazy alternative to critically thinking about trial strategy. Here’s a familiar example: say that after concluding written discovery, you are faced with a number of witnesses who might testify at trial. The knee-jerk reaction, especially for lawyers with unlimited budgets, is to depose them all.
A deposition, however, should be a last resort.
First, you need to think about what the witness is likely to say, then ask how this testimony will impact your trial strategy. Viewed this way, some witnesses should not be deposed at all.
A whole category of witnesses, for example, might be friendly to your side and available to testify at trial. A deposition of these witnesses would only benefit your opponent, who would get a helpful preview of the witnesses’ testimony.
At the other extreme are witnesses with damaging testimony who might be unavailable for trial. A deposition risks preserving testimony that would otherwise go unheeded. You might decide not to depose these witnesses either.
Decisions about whom to depose have important consequences beyond trial strategy. You cannot get back the time you spent on an unnecessary deposition. Just as troubling, depositions are very expensive. Deposition costs include outlays for the court reporter, transcripts, room rental, travel, and more.
Clients also expect their lawyers to keep litigation costs under control. For a lawyer wishing to control costs, cutting out unnecessary depositions is an effective way of accomplishing this goal.5 Questions to Ask Yourself Before Taking a Deposition
In assessing whether a deposition is necessary, ask these questions about each witness.1. How Important is the Witness to the Case?
To make intelligent decisions about witnesses, you need to know the entire file — claims, defenses, written discovery, and case documents. You also need to think about how the evidence is likely to be presented at trial. Only then can you assess the witness’s importance. If the witness does not have anything to say that will help or hurt your case, you don’t need to depose the witness at all.2. Is the Witness Available for an Interview?
Friendly witnesses who are under your control usually aren’t good candidates for depositions. To learn what the witness has to say, use the techniques of “informal discovery” and call the witness on the phone or set up a face-to-face meeting. Assuming the witness is available for trial, this might dispense with the need for a deposition. It would be foolish to give your opposing counsel a free preview of testimony.3. Can You Use Other Types of Informal Discovery?
Informal discovery isn’t limited to friendly witnesses. Assuming there are no ethical barriers (see below), you can interview witnesses before deciding whether to take their depositions. If you decide you want to memorialize a witness’s story, consider a witness statement as an alternative to a deposition. (Keep in mind, however, that witness statements might be discoverable.)4. Will the Benefits of the Deposition Outweigh Its Cost?
Even when you cannot interview a witness, you might still learn the substance of the witness’s testimony through traditional discovery methods — interrogatories, document requests, or depositions of other witnesses.
Even when the testimony is material, you can still say no to a deposition. At the firm where I started, one of my bosses rarely took depositions. With a background in the criminal courts, where depositions are rare, he was confident he could cross-examine most witnesses at trial without a deposition.5. Are There Risks to Preserving the Witness’s Testimony?
If a witness has damaging testimony and isn’t going to be available for trial, a deposition might hurt your case. While you often can’t predict all the variables ahead of time, consider the risks before rushing into a deposition. Otherwise, you might be preserving harmful testimony that otherwise would not be available for your opponent to use at trial.Limitations of Informal Discovery
Sometimes, there is no good alternative to a deposition. A helpful witness, otherwise a candidate for informal discovery, might not be available for trial. Whole categories of witnesses might be off-limits to informal discovery — corporate employees, for example. Some lawyers decide to depose every adverse expert. (Notably, others don’t.)
Despite these limitations, always consider alternatives to depositions. If you can reduce litigation costs while improving your case, why not try it? Not only will it make you a smart litigator, but your client will thank you for it.
Originally published March 12, 2015. Republished June 10, 2016.
Featured image: “Putting coin into a piggybank” from Shutterstock.