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PAGE 2 Content of decision not set in stone Continued from page 1 Agency] having any particular use for utiliz- ing that, because everything has now become domestic effectively, if you can access it from Canada," he said. Despite the fact that the information was not downloaded, stored, or copied in Canada, the court found that if you can access infor- mation from here, it will determine that it is located in Canada "for all time." The decision is an example, he said, of legis- lation drafted "with one set of realities in mind, and then the technological landscape evolves." Latella also noted that the court justified a discrepancy in the treatment of electronic data NEWS November 24, 2008 • Law Times Race stats 'touchy' Continued from page 1 I can tell you that I don't believe it's going . . . in our particular case, to Ottawa. But I believe it will be a matter of time before this case is revisited by one or other courts across the country. versus hard-copy data by saying accessing elec- tronic information "is so easy to do." "It's like leaning over into your filing cabinet mere ability to access. It doesn't say legiti- mate access, doesn't say access authorized for a particular purpose, it doesn't say anything in the legislation about that at all, and yet it has become the test." While the eBay case seems settled, he said the content of the decision is far from set in stone. "I can tell you that I don't believe it's going . . . in our particular case, to Ottawa. But I believe it will be a matter of time before this case is revisited by one or other courts across the country," said Latella. A recent challenge before the Swiss courts deals with an American customer of the bank- ing giant UBS AG having his records turned over to authorities. According to vari- ous media reports the customer is chal- lenging the release of his records on the basis that the release to U.S. authorities contravenes Swiss banking law. In Swit- zerland the authorities must first show clear evidence of tax fraud before banks can turn over customer information. For Swiss bank affiliates in Cana- da, the eBay ruling could be used to in your office and taking something out of it," Latella paraphrased the court's reasoning. A factor that may require clarification, he said, is the lack of discussion of whether the party with easy access to electronic records was authorized to do so and did so legally. "So, although it might be a bit of an un- likely scenario that a hacker would be re- quired to produce something, based on the rule that has been established by this deci- sion, access is the key," said Latella. "The go through the back door to get customer records, but Peter Wells of Lang Michener LLP says the Canadian government would be unlikely to succeed. much you can help an individual." Neuberger points out that lawyers can refer private clients with adequate resources to various forms of counsel- ling, such as a forensic workup by a child psychologist, or get the client into a treatment program, which makes it easier to resolve cases with the Crown. "You just don't have that necessar- "I think that if push comes to shove, UBS would rather wind up all its Canadian busi- ness rather than produce the records, and it appears that there will be no records physi- cally located in Canada," he says. "The Swiss authorities are unlikely to co-operate in pro- viding such documents to Revenue Canada. The end of the story is that the IRS probably has sufficient power to force the documents from UBS, but CRA does not." LT ily available when you're dealing with clients who are legally aided," he says. "There needs to be a broader approach to ensuring that the resources are there to properly defend these clients, and defend them is not just going to court and asking questions." Neuberger says the use of race- based statistics is a "touchy subject," and can "lead to stereotypes and mis- leading information." Further, he says, there are other, more sociologi- cally relevant issues, such as socioeco- nomic status, living standards, family situations, and so on. "There are so many other factors to look at that can be more benefi- cial to us than just simply breaking it down to race-based statistics," says Neuberger. "And as a criminal law- yer, crime doesn't really know, in my practice, a racial boundary." Natasha Gibbs-Watson, director of the African Canadian Youth Justice Program, says she expects the govern- ment to shy away from the collection of race-based statistics. "At the end of the day, it will actu- ally highlight that there's a problem, and once you actually highlight that there's a problem you have to name that problem and then you'll have to address that problem," she says. "It would be in their best interest to shy away from something of that magnitude." But Gibbs-Watson says such statis- tics need to come out to help organi- zations like hers better serve youths, based on what that data shows. "It's what you do with the sta- tistics," she says. "You can use it to highlight in a positive way or use it to highlight in a negative way." Gibbs-Watson adds that the criminal justice system needs to do a better job identifying factors that lead youths to violence, rather than focusing too heavily on the specific act they committed. "Governments are always pushing for harsher sentences, but at the end of the day, you're sending this youth into a closed-custody facility where we all know it's a breeding ground for a youth to come out more hardened or more criminalized than when he first entered into the system," she says. "We need to really look at individual- ized sentencing for youth. Base it on the youth and their circumstances." Progressive Conservative MPP Ju- lia Munro, the party's critic for chil- dren and youth services issues, says she would have liked the review to better address the role family plays in the root causes of youth violence. "There's so much research that supports the notion of infant de- velopment and early childhood de- velopment that lays the ground for children, that nurturing background, that are then able to cope with stress better," says Munro. "I was really sur- prised that there wasn't more atten- tion paid to that particular area." LT Looking for an easier way to attract attention? it's easy. www.lawtimesnews.com JobsInLaw_sailing_half.indd 1 11/20/08 2:50:04 PM

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