Law Times

PAGE 6 JULY 28/AUGUST 4, 2008 / LAW TIMES Law Times ....... Associate Publisher ...... ............ ......... ............ Matt LaForge ...... .......... Alicia Adamson . . Advertising ............. .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... All rights reserved. stored in a retrieval system without written per- mission. The opinions expressed in articles are Law Times Inc. www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number Law Times is published 40 times a year by Law lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS - postal returns and address changes should include hsteenkamer@clbmedia.ca or ADVERTISING klorimer@clbmedia.ca, kpascoe@clbmedia.ca, kliotta@clbmedia.ca sshutt@clbmedia.ca at 905-726-5444 rnoonan@clbmedia.ca publication and disclaims all liability in respect Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter What if Ted Baxter had an internet connection? R ecent shenanigans at a Phila- delphia TV station make the notorious Saturday Night Live parody featuring Dan Aykroyd and Jane Curtain pale in comparison. Even the wicked catch phrase that Ayk- royd typically shot at Curtain during their Point-Counterpoint segment — "Jane, you ignorant slut" — seems tame when you consider that in the real-live story both an- chors have lost their jobs. And that news- man Larry Mendte now faces criminal pros- ecution in an internet hacking scandal. It's alleged Mendte illegally accessed his former colleague Alycia Lane's e-mail hundreds of times over two years and leaked personal details about her to a newspaper reporter. Revelations of her alleged off-camera conduct (including an arrest for a scuffle with a New York City cop, and e-mailing bikini shots of herself to a married NFL Network an- chor) got into local gossip columns and are said to have led to her career down- fall — she was fired in January. Boy, this story rivals the antics of those in Anchorman: The Legend of Ron Burgundy, which pits Will Ferrell against the fair Christina Applegate. But it's good for Law Times because it serves as a vehicle to plug our focus section, written by Derek Hill, zeroing in on internet/e- commerce law, starting on page 9. Now back to our story: According to the Associated Press, fed- eral prosecutors allege ex-KYW-TV anchor Mendte, 51, logged into Lane's accounts from work and home a whopping 537 times in one five-month span! The news hacks manned the desk at the CBS affiliate together for four years starting in 2003. Lane's lawyer, Paul Rosen, thinks the motive was jealousy of the younger, beauteous Lane, 36, who was making $780,000, or $100,000 more than his paltry stipend (actually, an ironic twist). He alleges the trouble started when Lane got her new, bigger contract in 2005. "Her star was climbing, while his was not climbing," Rosen is quoted. " . . . His conduct was designed to undermine her." Prosecutors were tight-lipped about a motive, but acting U.S. Attorney Lau- rie Magid stated: "The mere accessing and reading of privileged information is criminal . . . This case, however, went well beyond just reading someone's e-mail." Mendte is charged with a felony count of intentionally accessing a pro- tected computer without authorization. It's a crime here too. University of Ottawa law profes- sor Michael Geist tells Law Times the Criminal Code includes an anti-hacker provision where someone accesses a computer service without colour of right. The provision is 342.1. The time frame is between March 2006 and May 2008. Neither prosecu- tors nor the charging documents say how Mendte got Lane's password, but sources told the Philadelphia Inquirer that it's thought he secreted a tiny key- stroke-logger device on her computer. Mendte has been off the air since May 29, when FBI agents searched his home and seized his computer. He was fired June 23, just days after Lane launched a lawsuit, alleging, among other things, that keeping Mendte on the payroll during a federal investiation was sex discrimina- tion. The station denied her allegations. Charges were reduced in Lane's assault case in February and will be dismissed next month if she keeps her nose clean. Meanwhile, when Lane became tab- loid fodder in May 2007 over the so- called bikini shots she e-mailed to the NFL Network's Rich Eisen via an ac- count he shared with his wife, she said the photos were harmless. Lane said she's been "purely platonic" friends with Eis- en for nearly 10 years and they "regularly exchange e-mail and photos." "People expect that e-mail in a pass- word-protected, personal e-mail account is private," said Magid. "If you think of it in the context of another era, it's no dif- ferent than someone stealing your locked briefcase containing confidential infor- mation from your lawyer, prying it open and helping himself to the contents." She's right. And, if Mendte is guilty, he should be made an example to deter those like-minded lurking behind a key- board near you. — Gretchen Drummie from the police station. In R. v. Osmond (2007), leave to appeal to the SCC dismissed, the po- lice contacted counsel through a Brydges call to a 24-hour toll-free service. (R. v. Brydges dealt with the duty of the police to inform detainees about the availability of duty counsel and legal aid.) The client was under inves- T tigation for murder, but the call was handled in a routine manner and lasted two minutes. George Roswell Osmond was 21 years old, and he had been arrested for the first-degree murder of a 13-year-old girl late on a Friday afternoon in a jurisdiction in which he would not be brought to court until Monday morning. Section 503 of the Criminal Code requires that the client be brought before a justice without unreasonable delay and within 24 hours, but, conversely, it also There's more to advising a client than reiterating right to silence A Criminal he recent case of Osmond highlights the duties of lawyers taking calls provides that, where a justice is not available, this merely be done as soon as possible. Os- mond was at risk of being in- terviewed all weekend. The client was advised he would have court on Monday and to remain silent, but was not advised how to exercise that right. He was probably also told not to speak with prison- ers or undercover officers, which was the lawyer's practice in serious criminal matters. It was one of an average of 44 calls that the lawyer handled dur- ing his shift. The lawyer had no independent recollection of the call, although he had a form on which he had made notes. He was covering the entire province of British Columbia, and he did not know any lawyers in the Courtenay area. The lawyer did not arrange or offer to arrange private counsel for Osmond. Now, the old adage says that a lawyer who represents himself Mind By Rosalind Conway has a fool for a client. Osmond fancied himself a jailhouse lawyer. He thought that he could handle questioning, because he had taken "Law 12" in high school. Unfor- tunately, Osmond hadn't passed Law 12. Not surprisingly, the client tried to find out from the police what evidence they had against him, and argued that he was an unlikely suspect. On the Friday evening, during the interrogation by a skilled in- vestigator, Osmond confessed to beating the victim; the following morning he admitted to stabbing her. He succumbed to the officer's stratagem that his father, girlfriend, and the community would need to know that this was unplanned, www.lawtimesnews.com and he was not a predator. Justice Ian Donald wrote, "He may have had an operating mind but, with respect, he was not very smart." A lawyer accepting a call from the station, whether re- tained or not, acts for the client and owes him the same duty of care as if he were retained. He must advise him of his legal rights and how to exercise those rights. This may mean speaking on his behalf to the detective, calling the client back, contact- ing his family, notifying his law- yer, or even arranging counsel. There is more to advising a cli- ent than reiterating the right to silence, as other procedures like DNA testing and lineups may be under consideration by the police. Very specific advice needs to be given in a drinking and driving case (see Alan Gold's "The Ini- tial Telephone Call" in Defending Drinking and Driving Cases 2007. Osmond had been denied the timely and effective right to counsel under section 10(b), and a new trial was ordered. He needed to be informed of what his right to counsel meant — and his rights were violated not just by the police, but by the very lawyer he had consult- ed, who testified that, "In one sense, there's no difference be- tween murder and shoplifting." The BCCA did not find that there was a right to the presence of counsel during interroga- tion. Since the Osmond case, people in British Columbia arrest- ed for murder, manslaughter, or attempted murder are offered an enhanced Brydges service, and the on-duty lawyer will con- tact a senior member of the bar to provide advice to a suspect in custody. A tariff of $150-$240 has even been created for these situations. LT Rosalind Conway practises criminal law in Ottawa. She can be reached at rosalind.conway@magma.ca.

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