Law Times

Law Times • may 15, 2017 Page 7 www.lawtimesnews.com Forty years of wisdom on the profession BY ALAN SHANOFF A fter a 40-year legal career, it's time to call it a day. And after a 10-year writing career, it is time to put away my keyboard. In a broad way, the practice of law hasn't changed much since I started my career in the 1970s. Clients had problems or tasks they required handled and lawyers dealt with them. The problems and tasks were similar then to what they are now. Wills and trusts still need to be drafted. Real es- tate deals need to be closed. Commercial transactions need to be documented and closed. Disputes and problems of every nature must be resolved. Of course, advances in technology have changed the business of law as well as the way law is practised. Many tasks have be- come automated. We now have templates, forms and checklists for most tasks. In many respects, the pace of a law practice has exponentially increased. But in anoth- er respect, the pace of litigation has slowed. Institutional delays and Charter of Rights and Freedoms issues have bogged down criminal litigation. It's also been slowed by disclosure obligations, to the point where the Supreme Court of Can- ada has made multiple efforts to enforce the right to a speedy trial. These efforts have largely failed even with many thou- sands of prosecutions being stayed or withdrawn due to delays. The pace of civil litigation has also slowed in major urban centres. We've tried increasing the monetary jurisdic- tion of Small Claims Courts. We've tried simplified procedure litigation along with enhanced summary judg- ment rules. The SCC has even told us the right to a tri- al is obsolete in many cases. Yet, justice delayed is justice denied seems to be an old- fashioned concept. Courtrooms today are eerily similar to the court- rooms of the 1970s, except that judges are usually more even-tempered. In most cas- es, it seems the computer age has not reached the court- room. But courtrooms are very different in one respect: namely, the proliferation of self-represented litigants. A 2014-15 Toronto Lawyers Associa- tion survey reported that 57 per cent of family law litigants are self-represented. This speaks poorly of access to justice and the resources successive governments have put into legal aid, but it also speaks poorly of lawyers. Many SRLs have been driven away from using lawyers by high fees as well as by the ineffectiveness of the lawyers initially retained. According to extensive online survey- ing of Ontarians' opinions on access to jus- tice released last year by The Action Group on Access to Justice, a majority of respon- dents had little or no confidence they could afford legal services, while 29 per cent had little or no confidence they would receive useful advice even if they could afford the services. While this isn't scientific, TAG concluded our justice system is seen as "unfair, inaccessible and intimidating." Lawyers have a professional obligation to pursue settlements. Yet, it seems too many lawyers relish using aggressive tactics and tak- ing advantage of the adversarial system of justice. It is hard to say whether this is a worsening problem, but no doubt the more expeditious pursuit of settle- ments would help ease backlogs and hasten the attainment of justice for many. The problems facing the profession today seem much more dire than the problems faced some 40 years ago. The monopoly granted to lawyers is under at- tack and rightly so. If nothing else, the pro- liferation of SRLs shows the monopoly is not serving the public interest as it should. We have seen paralegals chip away at various areas of law that were once the sole domain of lawyers. This will continue unless the profession can solve its access to justice problems. Indeed, the recently submitted Family Legal Services Review Report by Justice Annemarie Bonkalo, recommending the expanded role of paralegals in family law disputes, is just the continuation of a continuing trend. Technology is also doing its part to chip away at the monopoly granted to lawyers. As an example, the increasingly sophisti- cated kits and software for the preparation of wills and powers of attorney are elimi- nating the need for lawyers in many cases just as tax software has been eliminating the need for tax return preparers. Artificial intelligence will also eliminate many of the tasks lawyers now perform. Potential law reforms may also reduce legal work. Reforms coming out of the recent review of the auto insurance sys- tem in Ontario by David Marshall would reduce the need for legal representation. Additional reforms in other areas could accomplish the same result. Online dis- pute resolution is inevitable and will fur- ther reduce legal workloads. At the same time, lawyers have become less trustworthy in the eyes of the public. While the proliferation of advertising portraying lawyers as ambulance chasers doesn't help, there is also a perception that lawyers generate a good deal of friction in litigation, particularly family litigation. If lawyers are being seen as part of the problem, then so, too, are many of our laws along with our courts. Family courts are seen as dysfunctional. Confidence in our criminal courts is dropping with charges being stayed for delay and judges who don't understand how to apply basic principles of criminal law. It is not surprising that 64 per cent of the respondents in the TAG survey believe the justice system in Ontario is broken. Lawyers must do more to provide af- fordable, timely and competent service for their clients. Advances in technology and artificial intelligence will improve matters, but the future of the profession will con- tinue down a slippery slope until measures are put in place to ensure clients' needs can be met at an affordable cost. LT uAlan Shanoff is soon retiring as a lawyer. This is his final column, after years of contributing to Law Times. Privacy needs better protection BY NATHANIEL ERSKINE-SMITH A ccording to the Office of the Privacy Commissioner of Canada, more than 90 per cent of Canadians have expressed some level of concern about the protec- tion of their personal privacy. There are legitimate reasons to be concerned. Pri- vacy may be a quasi-constitutional right, but it does not receive the protection that it deserves. For example, consider the fact that the Privacy Act, the law that gov- erns how personal information is collected, used and disclosed by the federal government, has not been sub- stantively updated since it was enacted in 1983. In the words of the OPC, there is a "very crucial need to overhaul" the act. A number of reports have also called for reform over the years. Most recently, our current Standing Com- mittee on Access to Information, Privacy and Ethics recommended 28 measures, including a necessity and proportionality standard for the government's collec- tion and retention of personal information. Our committee has also recently examined the Sec- urity of Canada Information Sharing Act, one of the acts created by then Bill C-51. We found that the def- inition pursuant to which information can be collected is too broad, that necessity and proportionality should apply and that expert review of information sharing is required. The Canadian Security Intelligence Service is already limited to receiving information that is "strictly neces- sary" and other security agencies should be subject to a similar standard. There is no doubt that information is the lifeblood of national security. But for that very rea- son, security agencies have a tendency to overstep their bounds, and two recent examples should give us pause. Consider that police agencies, including the RCMP, have collected data using International Mobile Sub- scriber Identity, or IMSI, catchers (colloquially known as stingrays) for years, but they have repeatedly refused to acknowledge their use. These devices capture data from all cellphones within a certain proximity, includ- ing from innocent Canadians, and raise obvious pri- vacy concerns. Recently, the RCMP has confirmed its use of stingrays, including at least 19 times in 2016 and 24 times in 2015. Other countries have rules to govern the use of stingrays and any data collected, and Canada should follow suit. Germany, for example, has regulat- ed stingrays since 2001, including obligations on law enforcement to annually report the use of stingrays. Former Ontario privacy commissioner Ann Ca- voukian has rightly called for the deletion of data col- lected from innocent Canadians. Our laws should not be silent. Improper data retention is not new. Last fall, Federal Court Justice Simon Noël held that CSIS had not only breached its duty of candour to the court by failing to disclose the operations of a data analysis centre estab- lished in 2006 but further held that CSIS had retained and used data beyond its legal mandate. Noël noted that the law restricted CSIS to collecting data that is "strictly necessary" and reasoned that "the principle of strict collection must be ref lected in the re- tention of that information." Yet, CSIS had retained in- formation beyond that standard. In spite of this ruling, all indications are that CSIS has not yet destroyed the data it was found to have improperly retained. Beyond national security, our committee is now studying privacy in the private sector through our re- view of the Personal Information Protection and Elec- tronic Documents Act. This legislation was enacted in 2000, and due to its principle-based approach, does not need the same overhaul as the Privacy Act. Our government has already moved forward with mandatory breach reporting, and we're now examin- ing other potential changes, including empowering the OPC with order-making powers or an administrative monetary penalty regime. There are also concerns that our current model of informed consent needs updating. The majority of Canadians admit to not reading privacy policies for mobile apps, and a recent privacy sweep — in which 25 privacy enforcement authorities participated — found that privacy communications of Internet-connected de- vices are generally poor and fail to inform users about exactly what personal information is being collected and how it will be used. It is difficult to reconcile these facts with the goal of meaningful consent. This is especially important as more devices collect more information about our lives. From smart meters that track our energy consumption to fridges that track what we eat, Cisco Systems estimates there will be 50 billion connected devices by 2020. As a consumer, I want convenience and will trade some of my privacy. As a citizen and as a lawyer, I want laws that substan- tively protect my privacy. In general terms, we should mandate privacy by design. Governments and third parties ought to ano- nymize our personal information, and our govern- ment should follow Australia's example and make it an offence to re-identify published government data sets. We should also look beyond the law to protect our data. Take Estonia. On the one hand, it has embraced big data through maintaining a national register with a single unique identifier for all citizens and residents. Customer service is improved and information is ex- changed more easily. On the other hand, the same sys- tem ensures that citizens can correct or remove data easily and can see which officials have viewed their data. In summary, we need to embrace new laws and new technology. We need not sacrifice our privacy. LT uNathaniel Erskine-Smith is the MP for Beaches- East York in Toronto and the vice chairman of the House of Commons Standing Committee on Access to Information, Privacy and Ethics. He is also a lawyer who practised commercial litigation in Toronto until his election to government in 2015. u SPEAKER'S CORNER COMMENT Social Justice Alan Shanoff

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