Canadian Lawyer - sample

w w w . c a n a d i a n l a w y e r m a g . c o m M A R C H 2 0 1 9 9 R E G I O N A L W R A P Some Quebec defence lawyers, however, expressed fears that the proposed changes could lead to a revolutionary shift in the evidentiary burden to prove criminal offences beyond a reasonable doubt from pros- ecutors to the accused. "The cornerstone of our criminal justice system is the burden of proof," says Mia Manocchio, a criminal lawyer in Sherbrooke and president of the Association des Avocats et Avocates de la défense, Quebec's largest group of defence lawyers. "As defence lawyers, we want to make certain that people's fundamental rights are maintained." According to Manocchio, the new court idea is being driven by public indigna- tion over the lack of charges laid against celebrities such as Rozon for alleged sexual crimes dating back years. "Some people are taking a scorched-earth approach to how accusations of sexual assaults should be handled," she says. "But the question of initial engagement and whether a case should even be authorized has a direct impact on my clients, who are my only concern. But that doesn't mean we are against exploring new avenues and solutions that will improve the system." For her part, LeBel says she is approaching the topic with an open mind — to a certain point. "Is a specialized court the way to go?" LeBel asks rhe- torically. "I'm not sold on the idea, but it is a possible solu- tion on my radar. It could be a means to an end, which is the best possible treatment of vic- tims in the justice system." — Mark Cardwell O N T A R I O TECH DEBATE HITS BENCHER ELECTION L awyers say they are looking to the Law Society of Ontario for guidance on tech- nology issues, particularly cybersecurity and access to justice. But at the same time, bar members and bencher hopefuls disagree on how far the LSO should go in creating new rules to enforce technological competency. "There are sole practitioners and smaller law firms that have been practising in a paper-based practice for a long time and there are ways to balance the obligations around being cost effect- ive and timely," says Lisa Danay Wallace, an associate at WeirFoulds LLP in Toronto, who is not running for bencher but plans to vote in the upcoming April 30 election. "I don't think it has to be a hard and fast rule that either you're com- pletely up to date on technology or you're not." While there seem to be new digital resources available for lawyers, there is no explicit rule that lawyers in Ontario must be competent in the use of technology. "The law society needs to take a leadership role to guide the profession in this direction, and to date they haven't taken a very good role," says Toronto lawyer Mitch Kowalski, who is running for bencher. He says lawyers are looking for "actual guid- ance, as opposed to a CPD event." "There's so much out there on legal tech- nology. Every day there are press releases and announcements and committees — and it gets so noisy that it is impossible for a sole practi- tioner or a small firm to keep on top of their practice, keep on top of the law and now these technology things," he says. Two years ago, a committee at the Feder- ation of Law Societies of Canada proposed amending its model code to address techno- logical competence. The consultation paper said the committee "considers a lawyer's understanding and main- tenance of technological competence to be an ethical issue of significant importance that should be specifically referenced in the model code." The LSO created a technology task force in the summer of 2018 to begin looking at these issues, including the model code proposal, says LSO Treasurer Malcolm Mercer. The law society does have practice management guide- lines on technology use posted on its website, including 12 recommendations on manda- tory technology use, confidentiality, practice management software, marketing, piracy and backups. Brooke MacKenzie, who practises at Mackenzie Barristers PC in Toronto, says that, when she started out, she was confused on what the law society's position was on topics such as cloud storage. (PracticePRO has since addressed the issue in a January 2018 article.) MacKenzie, who is not running for bencher and is pursuing her PhD in lawyer professional regulation issues at the University of Toronto, says she doesn't necessarily think more rules are the answer, although she supports com- mentary proposed by the FLSC. "I don't think any new rules are required to protect clients' confidential information even as technology evolves. If lawyers are comprom- ising clients' confidential information, that's already a breach of their existing duties," says MacKenzie. "We should be viewing existing obligations through the lens of existing technology." Mercer says he thinks the law society's approach historically has been correct — by addressing issues of confidentiality, for example, but not being prescriptive about how it is done. Trying to evaluate cybersecurity programs through the law society could be "foolish," he says. "The law society isn't in the business of evaluating cybersecurity, and frankly I would be really disturbed if it tried." — Anita Balakrishnan "I don't think it has to be a hard and fast rule that either you're completely up to date on technology or you're not." Lisa Danay Wallace, WeirFoulds LLP

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