Law Times

Law Times • January 7, 2019 Page 7 www.lawtimesnews.com High hopes for 2019 BY MATTHEW GOURLAY A s we look ahead at 2019, we can hope for a better year when it comes to criminal justice poli- cy, as 2018 was not a good year. Just prior to Christmas, a comprehen- sive new package of impaired driving pro- visions came into effect. Its most striking feature is a novel police power to administer a breath test to anyone subjected to a roadside stop, whether or not there is any basis to sus- pect the driver of impairment. Many years ago, in R. v. Ladouceur, [1990] 1 SCR 1257, the SCC narrowly upheld (5-4) a law empowering police of- ficers to stop vehicles at random for traffic safety purposes. It's open to serious question whether the result would have been the same if that law authorized not just a random stop but also the mandatory production of a bodily sample. While I may be persuaded that the anticipated public safety benefits of this change are worth the rather significant incursion on civil liberties it represents, I think the government will face a steep challenge in justifying under section 1 such a clear violation of the section 8 right against unreasonable search and seizure. More offensive, in my view, are the changes to procedure in sexual assault tri- als brought about by Bill C-51. Apparently inspired by the media clamour for convictions in some high- profile cases, the new law requires the defence to seek advance per- mission to confront the com- plainant with his or her own prior statements — typically in the form of emails and text messages — if they contain sexual content. Grafted onto the existing "rape-shield" provisions, this does little or nothing to curb reliance on the kinds of im- proper reasoning targeted by those long-standing rules. Rather, the new law demeans complainants by presuming that they need to be judicially sheltered from questioning on their own words. And in so doing it vitiates the defence entitlement to try to expose inconsistencies in the accuser's account without disclosing in advance the questions to be asked. I suspect that our courts will strike down this pointless dilution of the Char- ter right to make a full answer and de- fence, but a lot of time and expense will be lost in the process. Potentially less vulnerable to Charter challenge but (in my view) misguided all the same, is the pending bill to abolish pe- remptory challenges in jury selection. This initiative appears to have arisen from the government's dissatisfaction with a single verdict (the acquittal of Gerald Stanley in Saskatchewan) rather than any kind of systematic research. Although motivated by concern that peremptory challenges can be used to eliminate racial minorities from juries, anec- dotal evidence suggests they may be used just as often to diversify rather than homog- enize a jury. While many features of the jury system are antiquated and ripe for review, this ad hoc approach is unlikely to re- sult in fairer trials or more ac- curate results. The attraction to bad criminal law policy crosses partisan and ideologi- cal lines, needless to say. I have written previously about the new Ontario government's disingenuous efforts to get tougher on bail, even while continuing to neglect the basic infra- structure requirements of busy jurisdic- tions like Brampton. While the federal government shows sporadic interest in meaningful, progres- sive policy development — and, to be fair, has enacted some such efforts — there ap- pears to be little cause for optimism at the provincial level that the government will move past knee-jerk reactions. But here's hoping. On the jurisprudential front, 2018 was a more promising year. Courts continued to vigorously test the constitutionality of mandatory minimum sentences, even for offences capable of grounding significant public revulsion. Justice Gladys Pardu's judgments for the Ontario Court of Appeal in R. v. Morrison, 2017 ONCA 582 (child luring) and R. v. John, 2018 ONCA 702 (posses- sion of child pornography), are cases in point. As for the Supreme Court, it handed down its most significant criminal law decisions in December. In R. v. Boudreault, 2018 SCC 58, the SCC struck down the mandatory victim fine surcharge, one of the Harper govern- ment's most mean-spirited innovations, as contrary to the Charter's guarantee against cruel and unusual punishment. The majority judgment of Justice Shei- lah Martin, the SCC's newest member, showed admirable sensitivity for the dis- proportionate impact of these fines on the most marginalized accused. In R. v. Reeves, 2018 SCC 56, the SCC extended its recent line of decisions fa- vouring personal privacy in electronic devices, holding that the accused's spouse could not validly consent to police seizure of a shared home computer. This decision will be heartening for civil libertarians. I suspect it will be some time before we can properly assess whether it strikes an opti- mal balance between the privacy rights of accused persons and the autonomy of co- inhabitants to assist police if they wish. uMatthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's available at mgourlay@hhllp.ca. Coding, algorithms, and common law BY REBECCA BROMWICH T he biggest lesson to be learned from what has happened with technology in the re- cent past is that online tech needs to be subjected to close scrutiny. Data privacy and cybersecurity are obvious concerns, at least 29 million Facebook users were victims of data breaches and 13.4 million files were leaked from law offices in the Paradise Papers leak. However, where legal tech is concerned, in my view, data security isn't even our biggest problem. Instead, the larger threat posed to the integrity of our legal institutions is the construction of categories in code and reliance of AI on those categor- ies. Mechanistic and rigid modes of organizing data threaten to fundamentally undermine the case by case, nuanced decision-making that is foundational to the common law tradition. Ontario lawyers need to pay close attention to how data is organized in legal tech, or the results could be catastrophic to the continuation of the common law tradition. In 2019, we are emerging into a moment where legal tech, analytics, and artificial intelligence are increasingly central to the practice of law and ad- ministration of justice, just as serious concerns are be- ing raised about the dangers of that technology. Emer- gent legal tech now provides mechanisms for more efficient practice, such as the secure ledger facilitated by blockchain, and for more effective, collaborative, mobile, faster means to do legal work, such as AI-aug- mented legal research. The platforms enabling this are constructed through a labyrinthine matrix of details, where the operation of languages of code, and manipu- lations of algorithms, mix with the discourses of formal law. Additionally, to protect the common law tradition, in the coming year, and forward, new levels of scrutiny should also be involved in how legal tech platforms or- ganize, and make sense of, data. While it is taking on new forms, reliance on tech- nology in law itself is not new. Across sectors, we are now experiencing a rapid mobile technological revolu- tion of disruptive innovation that is driving unpreced- ented change to professional fields and personal lives. The legal sector has lagged behind other fields in en- gaging in this mobile revolution, but disruptive mobile legal technologies are going mainstream in the legal profession. Lawyers now depend upon online technologies to survive in practice in new and different ways. It is sim- ply not a viable option to reject legal tech at this point. AI and online tech are part of our day-to-day practice. A central concern arises from the presence of increas- ing levels of privately designed and operated technolo- gies in the public spaces of our social institutions of law, especially courts. Regulatory gaps always exist because laws respond to advances in society and technology, and change takes place. The current moment makes this problem- atic because the gaps get wider as technology advan- ces more rapidly. In every legal space that technology touches, there are quandaries and conundrums to be resolved and attended to. One important problem that our regulatory regimes need to work through is that the common law is founded on nuanced, individualized decision-making while AI and online tech work with big data and mechanistic decision-making. Cautious and active engagement is the way forward to preserve the integrity of common law social institutions in the face of technologies that facilitate decisions to be made and actions to be taken in mechanistic ways. At the same time that online and mobile tech is emerging into the mainstream of legal practice, so too are concerns about dystopic levels of surveillance. The privacy and data security concerns we have seen writ large in the context of Google and Facebook/Cam- bridge Analytica scandals together with the Panama and Paradise Papers signal close attention must be paid to the security of data in legal databases and legal tech apps. More notice should also be taken of how that data is collected and organized in the legal milieu. We need to closely scrutinize not just how securely tech apps store data but also how databases categorize, define, describe, and code. The logical frameworks these technologies employ not only create online worlds, they will affect the physical world in important ways. In the tech-enabled world of on- line apps and artificial intelligence, definitions and the details of how code is written for legal tech, are often addressed privately, by non-lawyers, in an opaque con- text within corporate tech companies. The languages and definitions upon which these platforms rely should be more closely engaged with in the public interest. In these online platforms, definitions and algorithms have powerful inf luences on how we understand each other. Clearly, avoiding tech is no longer a viable option for lawyers. Further, an analog legal system is not a panacea. As Yuval Noah Harari wrote in 21 Lessons for the 21st Century, "The current technological and scientific revolution implies not that authentic indi- viduals and authentic realities can be manipulated by algorithms and TV cameras, but rather that authenti- city is a myth." Whether or not it is tech-enabled, we exist in a con- text of social systems and legal institutions produced by our definitions and descriptions. Just as we need to know the stories of the parties before the court, to ap- preciate facts to properly apply the law, we must be wary of how the calculations embedded in online algorithms — all of those ones and zeros, with their binary, black and white thinking — can oppressively undermine the individualized approach that is so foundational to the common law tradition. Humanistic discretion in case- by-case decision making remains important. We must continue to recognize that maps are not the same thing as territory. LT uRebecca Bromwich is a practising lawyer and legal academic. She teaches at Carleton University's Department of Law and Legal Studies and is the recipient of a Law Foundation of Ontario research grant to study how legal tech is affecting access to justice in the family law context. u SPEAKER'S CORNER COMMENT A Criminal Mind Matthew Gourlay

• Cover