Law Times

Law timeS • September 5, 2011 NEWS BY MICHAEL McKIERNAN Law Times squad in 2004, two of the most important players in the elabo- rate process that delivered dis- closure into the hands of defence counsel were the photocopier and the printer. "We set up a committee be- W cause we needed to look at alter- natives to these boxes and boxes of material that were being pro- duced," says Groves, a leader in the force's electronic disclosure eff orts. "Th en, of that hard-copy disclosure that was sent out, how much of it was actually relied upon on the day of trial? In a major case, maybe 10 per cent." From rudimentary begin- nings that saw some Microsoft Word and Excel documents burned onto CD, Groves, cata- lyzed by the 2008 report to the Ontario government on large and complex criminal trials, now has the disclosure package down to a single PDF docu- ment on a fl ash drive. Th e 2008 report identifi ed disclosure as "a constant source of dispute and diffi culty in long complex cases in Ontario" that in turn was "a serious cause of delay and ineffi ciency." It went on to suggest that electronic Pilot project has officers handing over materials more quickly Edward Prutschi, a defence hen Toronto police Det. Greg Groves joined the homicide Police embracing e-disclosure LegalInnovators disclosure could play a role in improving the system. For almost two years, offi cers in the homicide and other major crime squads have compiled the PDF documents based on the province's major case manage- ment structure. It includes an index, transcripts of interviews, crime-scene photos, and other notes and documents generated during police investigations. Since most of the information pulled from police databases and reports originates electronically, Groves says paper content is of- ten limited to offi cers' handwrit- ten notes, which they scan and add to the package. Investigating offi cers suggest redactions of irrelevant or privi- leged information in the pack- age on their computer screens and then turn it over to the Crown offi ce on a fl ash drive. All the Crown has to do is confi rm the redactions. At that point, it's ready to go onto a CD sent straight to the defence. Th is summer, Groves has been heading up a pilot project that rolled out the process to di- visional offi cers working on less serious crimes. Th e eff ort started lawyer with Adler Bytensky Prutschi Shikhman in Toronto, says the organization of and abil- ity to search the document set the Toronto pilot apart from elec- tronic disclosure experiments he has seen in other jurisdictions. "Sometimes, it's really just a document dump, and fi nd- ing something specifi c in an 800-page PDF isn't a whole lot easier than fi nding it in an 800-page stack of dead wood. Th e diff erence in Toronto is that it's codifi ed and consistent for every case. Offi cers' notes or cellphone records are in the same place every time." Toronto police follow two 'It's hard to get people who've grown up on paper to really think about working digitally,' says Edward Prutschi. with 32 Division and the Crown offi ce at the 1000 Finch Ave. W. courthouse in Toronto. "Th e big plus in using that fi le management structure is it standardizes how a case is fi led and managed," Groves says. "Every case looks the same, whether it's a homicide, a road rage, a shoplifter or a sex assault. It all looks, feels, and operates the same way." National bar admission rules for law schools nearing reality BY HEATHER GARDINER Law Times bar admission programs in all Canadian com- mon law jurisdictions. Its common law degree implementation committee submitted its fi nal report to the fed- eration's council last week. Th e council is set to review the report at a meeting on Sept. 15. Th e report follows recommendations for national standards proposed by a task force created by the federation. Th ese recommen- dations were adopted by all Canadian law so- cieties last year. If the council approves the report, it will then T have to make a recommendation to the law so- cieties as it doesn't have regulatory authority. Th e implementation deadline has been set for 2015, but if the report goes through, there will be re- porting obligations for law schools starting this academic year. Philip Bryden, dean of law at the University of Alberta and a member of the common law degree implementation committee, says the issue of national standards came to light in part due to the fact that the requirement for com- mon law bar admission programs is diff erent for foreign-trained law students than those edu- cated in Canada. "Th ere really weren't a standard set of re- quirements among Canadian law schools and there's nothing inherently wrong with that," he says. "But there was a sense that there ought to be . . . just as a matter of fairness between people who went to law school in he Federation of Law Societies of Can- ada is one step closer to establishing national standards for students entering Canada and people who went to law school in other parts of the world." University of Victoria law dean Donna Greschner, who's also a member of the federa- tion's national committee on accreditation, echoes that concern. "Without those standards, there's a great risk that foreign-trained lawyers — many of whom are Canadian, by the way — will not be treated in a fair and just way," she says. Another area of concern is that lawyers are becoming increasingly mobile. "If lawyers are going to be able to practise anywhere in common law Canada . . . then of course there needs to be national standards to ensure that there is that same high quality across the country," says Greschner. However, having all law schools comply does have its challenges. "Th ere are challenges for some law schools in terms of how they're going to modify their programs in order to achieve compliance by 2015," says Bryden. "Th ere's a kind of regula- tory burden aspect in the sense that law deans are going to be required to do annual reporting, and that takes a certain amount of time." Greschner recognizes that it could be chal- lenging for some law schools to meet the 2015 compliance deadline when they're dealing with budget restrictions and limited staff . Th ere has also been some concern about law schools pro- ducing cookie-cutter lawyers if they all have to meet the same standards. But Greschner says she doesn't think that will be an issue. "It is a legitimate concern that we don't want onerous accreditation require- ments that will unduly stifl e law schools, but I think the federation has been quite careful to leave lots of room for innovation." www.lawtimesnews.com titled-1 1 11-08-31 9:30 A disclosure deadlines. Th e fi rst is for basic disclosure after 15 days. Th e second comes after 35 days when disclosure should be sub- stantially complete to allow for a meaningful discussion between the Crown and defence on reso- lution. Groves says the pilot's impact was immediate. "What we're fi nding is that the 35-day requirement is being met within the 15-day period. Th ings are going faster, and it all tends to earlier resolution." Th e pilot has since expand- ed to include all four divisions feeding the North York court- house. By October, Groves says police across the city will be ready to adopt the process. A team of 10 dedicated instruc- tors is now training lawyers and staff at Crown offi ces around the city to make sure they're up to speed for the launch. "Th ere are technical hurdles that we've been meeting along the way, as well as human er- ror," Groves says. "Th e level of technical ability varies from person to person." About 20 defence lawyers have PAGE 3 also attended sessions to learn more about the disclosure pack- ages. Defence counsel can open the documents using free soft- ware rather than the expensive professional version police are us- ing to compile them. Groves says police can even provide a soft- ware add-on that allows defence counsel to put in their own nota- tions and reorganize the package depending on what they need for particular court hearings. According to Groves, defence counsel are impressed by the dra- matic savings police have found in printing and storage costs as a result of the project. "Th e defence bar is buying this new era faster than the Crowns are. Th ey're private business people, and all of their expenses are their own. Th ey see the advantages of going electronic and the fl exibil- ity of this tool," Groves says. "It'll be a real advantage once we've all gotten up to speed with it," says Prutschi, who was one of the lawyers to sign up for the training. "We'll be one step closer to that lawyer's dream of carrying all your cases in one briefcase." But Prutschi expects some resistance from both sides of the criminal bar. "It's hard to get people who've grown up on pa- per to really think about work- ing digitally. It does require a level of sophistication that most users probably don't have. But that's something that's coming, and in the relatively short term, I think this is going to become the default option. Th ose who think we are going to continue to work in a dead wood media environ- ment are going to have to think again and start learning." Th is is the fi fth instalment in Law Times ' summer series on innova- tion and the law. ANNOUNCEMENT The Thomas More Lawyers' Guild of Toronto RED MASS Marking the opening of Ontario's Courts Thursday, September 22, 2011 RED MASS Celebrant and homilist, Most Reverend Archbishop of Toronto Thomas Collins St. Michael's Cathedral, 65 Bond Street, Toronto, 5:00 pm RECEPTION & DINNER Guest speaker, the Honourable Antonin Scalia Associate Justice of the Supreme Court of the United States For tickets contact Michael Binetti at 416-360-0777 or tmlg@agmlawyers.com www.thomasmoreguild.ca

• Cover
• E-disclosure
• Bilingual Furor
• Focus On Class Actions