The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Privacy

Why searching phones at the border might violate privacy rights

By Yves Faguy February 23, 2017 23 February 2017

 

Steven Penney of the University of Alberta has a topical paper out in which he argues that customs searches, without suspicion, of digital data are unreasonable under section 8 of the Canadian Charter. Specifically, he pushes back against the notion upheld by our courts that seizing electronic devices at the border, and demanding to access them with passwords, is justified by border security interests.

It has become a cliché to say that the law struggles to keep up with technological change. Both police and privacy advocates claim that digitization has put them at a disadvantage. For the most part, however, courts have done a credible job in adapting criminal procedure doctrine both to account for the unique qualities of digital data and networks and to preserve consensus accommodations between privacy and law enforcement.

Digital customs searches have so far been an exception to this. Reflexive adherence to precedent has led courts to discount the intrusiveness of digital searches and inflate the harms of digital contraband. At customs, searches of digital containers are much more intrusive than searches of physical ones. And they do almost nothing to stop, deter, or regulate the flow of harmful data into Canada. Instead they have become an adjunct to non-border criminal law enforcement, unjustifiably exempt from the civil liberties protections applying in that realm.
 

 

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Legal marketplace

Re-regulating of the legal industry, Cont'd

By Yves Faguy February 23, 2017 23 February 2017

 

On the topic of re-regulation of the legal profession, Kenneth Grady writes that complaining about the slow pace of reform is a "red herring":

We have what we need to fix the lack of access to civil justice problem. Changing the regulations may make a few things easier and transaction costs could drop. But, the problems we need to solve are independent of the regulatory structure. The barrier to solving the problems is lawyer resistance to change. Fix that problem and changing the regulations will become a side show at best.

Consider this one example. Solo practitioners argue they have a technological disadvantage. The cost of emerging software is beyond their grasp, either in time to implement or money. The professional responsibility rules prohibit law firms from having owners without law licenses. If we re-regulate, the argument goes, these firms can get access to money and resources through new owners. They can use those investments to bridge the technology gap. We already have a solution. Create a technology business (incorporation costs are trivial). Get investments in the second business which acts as a services business to the law firm. Spread the technology firm’s costs across several small firms. This model, or variations of it, exists.

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Trade

NAFTA: Canada and Mexico's prisoners' dilemma

By Yves Faguy February 22, 2017 22 February 2017

NAFTA: Canada and Mexico's prisoners' dilemma

 

In recent days, we heard Canadian and Mexican officials say that NAFTA should be re-negotiated trilaterally.  Foreign Minister Chrystia Freeland has stated that NAFTA talks must involve Mexico. And former PM Brian Mulroney has warned, “throwing friends and neighbours and allies under the bus is a position for a weak leader.”

That may be easier said than done, given that economic ties between Mexico and Canada, while not negligible, pale in comparison to ties between Canada and the U.S. on the one hand, and the U.S. and Mexico on the other. That can make standing united in the face of U.S. pressure to re-negotiate a little awkward.

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Legal marketplace

Why traditional firms will want re-regulation of the legal industry

By Yves Faguy February 20, 2017 20 February 2017

 

Last year, Malcolm Mercer wrote about the various regulatory challenges in the U.S. and Canada with respect to innovation in the provision of legal services. He describes how protectionist pressures have put the breaks on any efforts to involve law societies (and the ABA in the U.S.) in facilitating new ways of providing legal services.  Then, casting an eye to the future, Mercer guesses that, ultimately, regulators will be forced to face the music one way or the other:

It seems to me inevitable and proper that new ways of providing legal services will be allowed in unserved and underserved areas. Whether Canadian law societies are up to the challenge of allowing this is unclear. But if they don’t, someone else will.

If encouraging the evolution of the existing practice of law with new forms of capital and expertise is not in the cards, permitting new entrants is the alternative. The question then will be how new entrants should be regulated and by whom.

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Access to justice

How self-represented litigants view the justice system

By Yves Faguy February 17, 2017 17 February 2017

 

The National Self-Represented Litigants Project has released its report for 2015-16 tracking trends among the SRL population, including data about income:

We continue to see the majority of those representing themselves reporting lower income levels below $50,000 with the majority below $30,000. In the latest sampling, 51% state that their income is under $30,000 (in the 2013 Study this figure was 40%, and in the 2014-15 Intake Report it was 45%).

The next largest group (15%) report annual income of between $50,000- $75,000, followed closely by those reporting income of $30,000-$50,000 (1%). This also closely resembles the data reported in both the 2013 Study and the 2014-15 Intake Report.

Also consistent with earlier reporting, 8% of respondents (6% in both the 2013 Study and the 2014-15 Intake Report) report earning more than $100,000. As income rises, so does the likelihood that the respondent previously retained a lawyer for this matter. One respondent in this sample group reported having spent more than $100,000 on legal fees before becoming self-represented.

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