Monday, March 23, 2015

140 Law - Legal Headlines for the Week of March 16, 2015

Here are the leading legal headlines from Wise Law on Twitter:
- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Friday, March 20, 2015

Late Lawyers (and Other Musings)

New York City’s embattled, progressive mayor, Bill de Blasio, has in rapid order acquired a bit of a reputation for failing to arrive on time. His tardy tendencies have even launched a new cottage industry in the press, the “De Blasio was Late Again” outrage-of-the-day story.

Late the for a St. Patrick’s Day mass. Late for a plane crash memorial service. Late to a police officer’s wake. Late for an event in his own home. Gosh, even late in responding to a snowstorm.

Naturally, the most civic minded among the journalistic order have taken it upon themselves to be solution-oriented. Thus, we are not surprised at the inevitable spawning of a sub-genre of well-intentioned suggestions for the Mayor, such as How Not to Be Late: A Self-Help Guide for Bill de Blasio.

There is even a Bill de Blasio Lateness Excuse Generator (pictured above), where technology meets tardy, and perpetually late landers can have appropriate mayoral excuses created for immediate use on virtually any occasion.

Now back home, here in the legal profession, lateness can be serious business, particularly in America.

A repeat-offending Texas lawyer was suspended this past January for being 30 minutes late in filing a death penalty stay petition. In 2008, a Los Angeles defence attorney was jailed for two days after arriving late for a sixth time at court. Sanctions and fines were the fate of a “punctuality-challenged” Bronx defence lawyer in 2007.

The Canadian attitude toward tardy lawyers is, predictably, somewhat more measured. As noted by Robert Bell and Caroline Abela in a 2009 paper for the Advocates Society, A Lawyer’s Duty to the Court:

Being late for court, although highly irritating and a waste of time, is generally not conduct that is considered egregious and neglectful of a lawyer’s obligation. However, in our view, tardiness is a breach of a lawyer’s duty to the courts because it, among other things, causes delay and disruption to the court process. Tardiness effects the administration of justice. For example, in LSUC v. Ducas, the Law Society hearing panel found, inter alia, that the lawyer had breached his duty to the court by appearing 25 minutes late for his own motion by which time the motion had been dismissed.
In fact, recent rulings in Ontario make it clear that even the bench must avoid precipitous action in the face of tardy counsel.

For example, note the 2014 case of Justice of the Peace Alfred “Bud” Johnston:

The Justices of the Peace Review Council upheld two complaints against the Old City Hall JP: that he was “arrogant and sarcastic” when courier Alexander Leaf appeared before him without a lawyer on Nov. 22, 2012 to fight a charge of driving with a handheld device; and that he abused his position by dismissing an afternoon session of 68 charges on Dec. 4, 2012 because the prosecutor was one minute and 10 seconds late.

Similarly, in 2012, Ontario Court Justice Howard Chisvin was reprimanded by an Ontario Judicial Council panel for summarily dismissing 33 charges for “want of prosecution” after a Crown was briefly late in returning from a recess:

The prosecutor, Brian McCallion, had been preparing for one of the cases by reading a psychiatric report on one of the accused people and didn’t hear several pages for him.

Court records show that after court had reconvened, the judge waited all of one minute and 27 seconds before throwing out the entire docket.

Now, to be clear, your faithful writer has perhaps also had the “occasional” tardy moment. This is by no means a point of pride. It might, however, inform the interest with which I view these developments in mayoral, lawyerly and judicial timeliness.

For late-at-heart lawyers, I am glad to note there remains hope when confronted with the challenge of improving time management in an era of of Too Little Time.
 Via Good Housekeeping writer Frances Lefkowitz: 
WHY YOU’RE IN THIS FIX: “There are so many misconceptions about lateness,” says time-management consultant [Diana] DeLonzor. Top false assumptions: People who are late are inconsiderate, selfish, controlling, lazy, or looking for attention. In fact, many people who run late have trouble accurately judging time and thus underestimate how long things will take. Psychologists call this the planning fallacy — and it’s part of being human. “We have an idealized version of how things go,” explains Steel, “and we edit out how much time things actually require.” Chronically late people fall prey to the planning fallacy in spades, misjudging the time needed even for things they do regularly, like fixing breakfast or driving to work. Call her optimistic, idealistic, or unrealistic, but if a person who tends to run late once got to work in 19 minutes — on a good traffic morning, catching all green lights — she assumes she can bank on this swift journey every day. “Late people time things exactly, according to the best-case scenario — but of course the world doesn’t work that way,” says DeLonzor… 
SIMPLE WAYS OUT: First, confront your magical thinking with cold, hard facts: Spend a week timing your daily tasks — what DeLonzor calls “relearning to tell time.” Once you know how long it really takes to shower, get the kids dressed, and feed the dog, you can adjust your schedule accordingly. Second, always plan to arrive early, factoring 15 extra minutes into every trip. Chances are you’ll end up on time; in the worst-case scenario, you’ll have a few minutes to relax, get a drink of water, and fix your hair. Like Hall, late people often view time spent waiting as time wasted. But if you carry a book, knitting, or your cell phone, you can use a few extra minutes productively. Finally, have a strategy for each day. “A lot of people with time-management issues don’t have a clear sense of how their day is going to pan out,” says DeLonzor. So make a list, with your revamped time estimates written next to each item. Then you’ll be able to tell if you’ve scheduled 30 hours’ worth of activity into a 24-hour day.
Today’s tip logically follows. Address any tendencies toward lateness by taking a hard look at your time management.  In particular, assess the accuracy of your estimates about the time required to complete tasks and to get from point A to B.

That is worth thinking about.

As they say, better late than never.

(Cross Posted at Slaw-Tips)

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Law Society of Upper Canada Honours Lawyers

Every year the Law Society of Upper Canada (the "Law Society") presents its "best of the profession awards". This year awards will be presented on May 27, 2015 at Osgoode Hall. The Law Society was founded in 1797 and is the largest of all Canadian law societies. As of 2010 the Law Society is the regulating body of over 40,000 lawyers, and 2,800 paralegals in Ontario.

Recently the Law Society announced this years award winners of the Law Society Medal, the Lincoln Alexander Award, the Laura Legge Award and the William J. Simpson Distinguished Paralegal Award.

In a statement the Law Society Treasurer Janet Minor recently said,
The Law Society looks forward to honouring these 11 exceptional legal professionals whose careers represent the highest level of achievement and commitment to serving the public and the professions.
The 2015 Law Society Medal recipients are:
  • Craig R. Carter, CS
  • Prof. Adam M. Dodek
  • Susan Eng
  • Faisal Joseph
  • John B. Laskin
  • H. J. Stewart Lavigueur
  • E. Patrick Shea, CS
  • Chantal Tie
This medal is awarded in recognition of distinguished service. As of 2014, the Law Society Medal has only been awarded to 160 lawyers. 

The 2015 Lincoln Alexander Award recipient is Paul Le Vay. This award is presented annually to an Ontario lawyer who has demonstrated a long-standing interest and commitment to the public and the the pursuit of community service.

The 2015 Laura Legge Award recipient is Kimberly Murray. This award is presented annually to a female lawyer in Ontario who has exemplified leadership within the profession.

The 2015 William J. Simpson Distinguished Paralegal Award recipient is W. Paul Dray. This award is presented annually to a paralegal in Ontario who has demonstrated one or more of the following characteristics: outstanding professional achievement, contribution to the development of the profession, devotion to professional duties, adherence to best practices and mentoring of others in best practices, a history of community service, or personal character that brings credit to the paralegal profession.

Congratulations to all of the award recipients on the recognition by the Law Society of their respective achievements.

- Kenneth R. Bandeira, Associate Lawyer, Toronto

Visit our Toronto Law Office website: www.wiselaw.net


Medical Marijuana Law Goes to Canada's High Court (No Pun Intended)

Today, the Supreme Court of Canada will decide whether Canadians have the constitutional right to consume medically-prescribed marijuana in a manner other than smoking.

Currently, it's only legal for medical marijuana users to intake dried-marijuana plants. They can't add it to baked goods or anything else, without opening themselves up to charges under the Controlled Drugs and Substances Act for criminal trafficking and narcotics possession. 

The question before the Court is whether these regulations violate physician-prescribed users' section 7 Charter rights to life, liberty and safety. 

Read more at the Ottawa Citizen.
- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Spousal Immunity: You May Or May Not Tell The Courts What Your Spouse Tells You

Should common law spouses be exempt from testifying against their spouse in criminal cases?

A recent article by the Law Time’s, Yamri Taddese provides some insight to this complex question.

Recently in R.v. Lomond, 2015 ONCJ 109 the Honourable Justice Javed of the Ontario Court of Justice found that to deny spousal immunity to individuals in common law relationships is “discriminatory and inconsistent with modern values under the Charter of Rights and Freedoms.” To date, while married spouses have been offered spousal immunity from testifying against their spouse but common law spouses have not been awarded the same benefit pursuant to the federal Canada Evidence Act (the "Act"). Pursuant to section 4(3) of the Act,

"no husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage."
In addition, pursuant to section 11 of the provincial Evidence Act,"a person is not compellable to disclose any communication made to the person by his or her spouse during the marriage."

The Honourable Justice Javed further writes in his decision, “The Supreme Court has taken note of changing societal values regarding common-law partnerships and the importance of recognizing and protecting relationships that are functionally equivalent to marriage.” In addition, the Honourable Justice Javed adds, 
There is no valid, rational basis for treating common law spouses and formally married spouses differently when it comes to the reasoning behind a spousal privilege here, which is to foster a trusting, good relationship.”
The Lomond case provides much needed direction towards the formal recognition of common law partnerships as an equal form of matrimonial union. In addition, this decision aligns with the Supreme Court of Canada’s overarching direction as to the recognizing and protection of common law partnerships. 

For example, in the Supreme Court of Canada ("SCC") case of Nova Scotia (Attorney General) v. Walsh, 2002 4 SCR 325, the SCC found that "a decision not to marry should be respected because it also stems from a conscious choice of the parties." 

The granting of spousal immunity to common law spouses is a step in the right direction. While each form of these relationships differ from a legal perspective, both common law partnerships and marriages exhibit many of the same characteristics.  A person’s trust that what is said to his or her partner will be confidential - both at home and in the courtroom - should be respected in the case of common law and married spouses alike.   

- Kenneth R. Bandeira, Associate Lawyer, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Monday, March 16, 2015

Babysitting, a Lucrative Business Venture for 15 Year Old New Yorker

The New York Post recently published an article about Noa Mintz, a mini-mogul, who at fifteen years old is the business genius behind the agency Nannies by Noa, which caters to parents in the New York area.

This seems like babysitters club 101, find a group of teens willing to babysit for money, right? Ms. Mintz took it further by charging a 15% fee on the gross incomes of her nannies, ranging between $50 and $80k. It is estimated that her agency has grossed upwards of $375,000.00.

Read more about it here.
- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Apple's i0S 8.3 Reveals More Diverse Emojis

Users have spoken and Apple has created!

The Next Web recently reported that consumers requests were heard. Emoji's on the i0S 8.3 will have different skin tones and further country flags. A little taste of what's to come is below.

-Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Louisiana Family Law Lawyer Faces Lengthy Suspension Over "Social Media Blitz"

What professional obligations do lawyers have when commenting on the courts or a judge’s decision? When does commenting through the use of social media cross the ethical line?

A recent article by the ABA Journal’s Debra Cassens Weiss examined these questions.


Last month the Louisiana Attorney Disciplinary Board recommendeda suspension for a Louisina family lawyer for unethical conduct. It is alleged that family lawyer Joyce Nanine McCool, along with her client, the mother in the case, used various forms of social media to urge readers to sign an online petition and contact two judges in her clients case involving allegations of child sexual abuse by the father. The discipline board recommended a suspension of a year and a day for the “social media blitz”. According to the article, the Discipline Board found that it was both unethical and inappropriate for McCool to have, “used Twitter and other social media to publish misleading and inflammatory statements about the judges, to promote the petition, and to try to influence the judges in pending litigation. The website promoting the online petition contained sealed information about the cases, the disciplinary board said.”

McCool told the ABA Journal in an email that she disagrees with the recommendation. McCool stated, “I don’t believe the recommendation does anything to protect the profession or make it more ‘honorable,’ ” McCool said. “To the contrary, it undermines it, and further ensures that ‘justice’ will be whatever judges say it is, regardless of the law, ethics, or all the facts and circumstances that would otherwise contradict them.


While a lawyer has a duty to fearlessly advocate for her clients, this kind of online activity clearly crosses numerous ethical lines. Social media is not a toy - a lawyer is required to foster respect for the courts and the justice system, online and offline. Beyond that, it is difficult to contemplate how any of these online activities could have been expected to generate any ultimate benefit whatsoever for the client.

For more context on how Canada's courts view "social media blitzes" in the context of high-conflict family law disputes, see Garry Wise's 2010 post on this blog, BC Spouse Awarded $40,000 for Defamatory Facebook, Internet Posts.

- Kenneth R. Bandeira, Associate Lawyer, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

140 Law: Legal Headlines for the Week of March 8, 2015

Here are the leading legal headlies from Wise Law on Twitter:
- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Friday, March 13, 2015

Meet Ross: A Computer Program That May Be Your Next Lawyer

What is the future of technology in the practice of law? Will a computer program one day replace your lawyer?

Two recent articles from the National Post’s Mitch Kowalski and the Globe and Mail’s Jeff Gray have examined these questions following the invention of a computer program named "Ross" by a group of computer science students from the University of Toronto.

According to the Jeff Gray article:
In the next few years, there may be a new junior associate, called Ross working at a Bay Street law firm. He will handle legal research on big cases and the senior partners are really going to like him: He is quiet, works orders-of-magnitude faster then any other lawyer on Earth and has a steel-trap mind.
Ross will one day be much like what Siri is to an iPhone user. A lawyer would be able to ask Ross a question such as, “Can you terminate an employee without notice if they fail to meet their sales target under the employment contract?.” Within a matter of seconds Ross will understand the questions and provide the lawyer with a number of sources and readings for the lawyer to further examine. Ross will not provide a definite answer; ultimately that will continue to be the lawyers role.

As co-founder Andrew Arruda explains in the Jeff Gray article, “Basically what we built is the best legal researcher available. It’s able to do what it would take lawyers hours to do in seconds.”

While the creators of Ross are adamant on its usefulness within the legal practice there are concerns which may arise through the use of Ross with the law firm environment. Firstly, what will be the Law Society of Upper Canada’s position on the use of Ross and the reliance of artificial intelligence by lawyers when advocating for their clients? Secondly, what impact will the implementation of Ross within law firms have on the ongoing ability of lawyers to conduct their own legal research?

According to the Mitch Kowalski article, at this time the creators are not considering making Ross available to the general public for purchase. By this summer, however, Ross’ creators hopes to begin pilots with a few Toronto law firms to further analyze Ross’ practicality and usefulness.

You can learn more about Ross at poweredbyross.com.

- Kenneth R. Bandeira, Associate Lawyer, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Canadians in Action for Release of Blogger Raif Badawi from Saudi Prison

You may have recently read about the blogger Raif Badawi who was imprisoned in Saudi Arabia for criticizing Saudi Arabian clerics. It caught the media's attention because he was sentenced to 10 years in prison and 1,000 lashings.

Yes, you read that right. 10 years and 1,000 lashings - 50 of which have already been administered.

In positive union, the Quebec Bar and Lawyers Without Borders Canada recently announced that they would join forces to have blogger Raif Badawi released from jail.

Mr. Badawi's wife and three children live in Sherbrooke, Quebec. However, given that he is not a Canadian citizen, the federal government has not become involved.

If you are moved to help, please see the Amnesty International Canada website to show your support by signing the petition.

- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Monday, March 09, 2015

140Law - Legal Headlines for the Week of March 2, 2015

Here are the leading legal headlines from Wise Law on Twitter:
- Rachel Spence, Law Clerk
Visit our Toronto Law Office website: www.wiselaw.net

Thursday, March 05, 2015

Know That Smartphone (And The Data Stored Therein)

What data can be harvested from the typical smartphone? How can litigators utilize forensics to obtain this data for use in legal proceedings?

Two recent articles from Law Pro’s Tim Lemieux and Rob Lekowski of ABA’s Law Technology Today have looked at these questions and offer quite a bit of need-to-know information.
The typical mobile device retains information on the locations of all calls, all wifi-networks joined, photos taken, and apps that utilize location services.  Text messages – even those deleted – will remain on the device until overwritten, as will browsing histories. Even encrypted data may be accessible.

And of course, there will also be all the usual email, documents and other app data that will be readily available from the device, without any forensic voodoo.

Four-digit passcodes present virtually no obstacle to forensics experts seeking access to mobile devices, according the the Lekowski article.  Even a rudimentary Google search will yield an avalanche of results as to forensic software suites that are available to assist in data harvesting from mobile devices and the cloud-based mail and data storage applications they are connected to.
There has been much jurisprudence in a criminal law context as to the necessity of obtaining warrants prior to police searches of mobile devices.  In R. v. Manley, a 2011 decision of the Ontario Court of Appeal, Mr. Justice Sharpe noted:
Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information – all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.
In a civil context, orders may be obtained for production of cell phones and hard drives for forensic analysis (see: Comisso v. York Regional Police, 2010 ONSC 3620), subject to assessments of relevance and proportionality that may significantly narrow or limit the scope of such analysis (see: Warman v. National Post Company, 2010 ONSC 3670). Further, the ease with which electronic evidence may be destroyed has been cited as a factor in considering the appropriateness of granting an Anton Pillar order for the seizure of computers and mobile devices (see: Irving Shipbuilding Inc. v. Schmidt, 2014 ONSC 1474).

While forensic analysis of mobile phones and their data will clearly not be appropriate on a routine basis in every case, counsel should consider whether such evidence is relevant and whether production for forensic analysis would be proportionate to the claims advanced. Further, bear in mind that such evidence can be exculpatory, and is not always damning. Consider whether your own clients’ mobile data could be of assistance in advancing their claims.

Our courts continue their attempts to find a balance between the protection of privacy and the temptation to litigants of the voluminous, potentially-relevant data on mobile and other electronic devices.  As a result, determining whether mobile data is necessary and potentially discoverable must be included on the litigator’s to-do list  in prosecuting a civil action.
So today’s tip:  Know that smartphone – it might be litigation a game-changer.

(Cross-Posted at Slaw Tips)
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net