Canadian Lawyer

September 2020

The most widely read magazine for Canadian lawyers

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UPFRONT 8 www.canadianlawyermag.com ONTARIO UPDATE NEWS BRIEFS Court of Appeal rules seizure of past text messages constitutional With texts more common than phone calls, privacy protections should adapt with the times: lawyer Gerald Chan THE COURT of Appeal recently dealt with the ques- tion of whether the police, when seizing a person's past text messages, should follow the same process required when setting up a wiretap. "This case does raise a real question about whether the distinctions that have tradi- tionally made sense to us when it comes to privacy continue to make sense in the digital world where people text more than they talk," says Gerald Chan, a litigator and partner at Stockwoods LLP. In R. v. July, Chan's client Guyvin July chal- lenged the constitutionality of the police seizure of text messages, which led to his conviction for firearms trafficking. July argued the law — s. 487.014 of the Criminal Code — by which police obtain production orders to seize text messages, is unreasonable and counter to his s. 8 Charter protection against unlawful search and seizure. The court rejected July's argument and found s. 487.014 constitutional. The case stems from the investigation into a convicted serial killer. In 2015, Mark Moore was found guilty on four counts of first-degree murder for a string of mostly random killings in 2010. In 2011, the police convened a task force to investigate the murders. They analyzed texts on the phone of one of Moore's victims, finding messages sent to Moore the day the victim died. The police then obtained a produc- tion order for Moore's telephone records, through which they became acquainted with Court cancels cottage trip over mother's COVID-19 concerns A case before the Ontario Superior Court of Justice considered whether it was in the best interests of a child to spend summer vacation in a rented cottage due to the COVID-19-related risk arising from the presence of family members coming from multiple households. In Moncur v. Plante, 2020 ONSC 4391, the child's parents were separated and shared joint decision-making and parenting time. The mother requested an urgent motion, objecting to the proposed vacation due to the risk of exposing the child to a situation breaching the provincial health protocols. The court ruled in favour of the mother and prohibited the father from taking the child to the cottage. Amid BLM movement, less talk, more walk on diversity: lawyer The Black Lives Matter movement has focused the world on the pressing issue of anti-Black racism. But while law firms have long expressed commitment to diversity, Ryan Watkins, a partner at Whitten & Lublin in Toronto, says the time is right to capitalize on an educational opportunity and act. "Within the last month or so, the talk has definitely grown," says Watkins. "I think a part of the problem is that it seems to always just be talk. When something flares up and comes into the public eye, then the talk comes back, but the real actions, we never see." Law allows eviction orders without hearing of Landlord and Tenant Board Changes to landlord/tenant law will permit ex parte eviction orders, allowing landlords to obtain an eviction order without appearing before the Landlord and Tenant Board. With Bill 184, the Protecting Tenants and Strengthening Community Housing Act, when a tenant is behind on rent, they can now enter into an enforceable repayment agreement with their landlord without oversight from an LTB adjudicator, says Caryma Sa'd, a Toronto-based lawyer who practises criminal, landlord/tenant and cannabis law. If the tenant fails to meet the repayment agreement's terms, they can be subject to an ex parte eviction or eviction without a hearing, says Sa'd. Changes to class actions intended to make certification more difficult, says lawyer The Ontario Government's amendments to the Class Proceedings Act include implementation of predominance and superiority requirements for certification. "It's a bit of a sad time . . . for access to justice," says Michael Peerless, who practises in class actions at McKenzie Lake Lawyers LLP, in London, Ont. Peerless expects the courts, while taking the new rules seriously, will also proceed in the best interests of fairness, access to justice and the intent of the Class Proceedings Act, which was to "level the playing field" and allow individuals to pursue justice against large, well-resourced institutions, corporations and governments, he says. Toronto School of Management program for international lawyers The Toronto School of Management has introduced its National Committee on Accreditation Exam Preparation Program for international legal professionals and law students who want to practise in Canada. The program aims to help those who have earned their law degrees abroad and who intend to take the mandatory accreditation exam to obtain a Certificate of Qualification that will allow them to embark on a legal career in Canada.

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