A decision by the Alberta Court of Appeal last week has some wondering if judges need more education around the powers of devices they themselves probably use every day.

‘[D]id they think it was small little elves within BlackBerry devices who were routing text messages to who they were going to?’ asks one lawyer. (Photo: Shutterstock)

In R. v Cockell the court reversed the conviction of Brian Allan Cockell on three counts of child luring using a computer system under s. 172.1(1) of the Criminal Code because it decided it wasn’t convinced the lower court had determined that the BlackBerry smartphone used to text message the complainants was in fact a computer system.

The accused used a BlackBerry to text message two girls aged 12 and 13. Contact was first made using using the chat service Nexopia. The meetings through Nexopia led to an exchange of cell phone numbers and text messages, then to physical meetings and sexual encounters with the girls.

The case raises serious questions about how the Crown and the judge in the case understand commonly used devices, says McCarthy Tétrault LLP technology and IP lawyer Barry Sookman, who blogged about the decision.

“I think it is a matter of judicial education. I’m sure they all use cell phones — I’m sure they all have smartphones — did they think it was small little elves within BlackBerry devices who were routing text messages to who they were going to? What would this be if it’s not a computer?”

All of the communication in question from the accused was sent via text message from a Blackberry to the complainant.

In his blog, Sookman note the offence of “luring a child” under s. 172.1(1) of the Criminal Code requires the offence be committed by means of a computer system within the meaning of s. 342.1(2) of the Criminal Code. That section defines the term “computer system” as “a device that, or a group of interconnected or related devices one or more of which, (a) contains computer programs or other data, and (b) pursuant to computer programs (i) performs logic and control, and (ii) may perform any other function.”

In its decision the appeal court stated:

There simply was no evidence, direct or circumstantial, that the appellant’s Blackberry was a computer system, or as to the content of any communications made by computer.

The trial judge incorrectly believed the defence to have admitted that the Blackberry met all the requirements of the definition of “computer system” in s 342.1(2) of the Criminal Code. He stated at para 20 of his decision that only the issue of identification was in play in relation to the three luring counts. His reasons do not otherwise address the issue of whether the Blackberry was a “computer system.”

But Sookman says the Crown should have brought forward technical evidence if there was a need and if there was a need for judicial evidence it could also have been decided based on judicial notice.

He notes there are also a number of previous cases where a cell phone has been proven to be a computer system. For example, in In R. v. Rocha, another Alberta court had previously held that given the broad definition of “computer system,” a cell phone could fall within the definition of computer system.

“For the judges not to recognize how basic the definition of a computer system is is really quite surprising in 2013. Are we going to have the same problems with the new anti-spam law proving a smartphone is a computer?”

Parliament amended the luring offence in July 2012 to remove the requirement that it be effected via a computer system, substituting instead a provision that it occur via telecommunications.

The accused was unsuccessful in his appeal on other counts on which he was found guilty including two of sexual assault, two of sexual interference, one of abduction, two of possession of child pornography and one count of making child pornography.

Canada

Retiring Supreme Court judge scolds junior colleague, The Globe and Mail

Mayor Ford's lawyer says it's too early to consider action over drug allegations, Reuters

NDP calls for RCMP investigation into $90,000 cheque from Harper aide to Mike Duffy, The National Post


United States

Justice Department investigates Fox reporter over leak, The New York Times

Courts turn to Urban Dictionary to demystify slang, The New York Times


International

High Court in Britain orders compensation for asylum-seekers who were tortured, The Guardian 

Guatemala's Top Court Annuls Genocide Conviction, Reuters
 

In this short week at the Supreme Court of Canada there are only three appeals scheduled to be heard.

May 21 — Quebec — R. v. McRae

Criminal law: While in prison awaiting trial, Stéphane McRae and another inmate conspired to attack the Crown prosecutor, a police investigator, and four witnesses. After finding out about this plan, investigators placed a listening device on a third inmate. McRae was charged with conveying a threat to cause death or bodily harm. The main issue is that the threatening remarks were made in a place where it’s assumed that confidentiality exists.

Read the Quebec Court of Appeal’s decision.

May 22 — New Brunswick — A.I. Enterprises Ltd. v. Bram Enterprises Ltd.

Torts: A family owned and managed an apartment building in Moncton, N.B. In 2000, four of the five family members decided to sell the building but the managing member disagreed with the sale. They were unable to sell the building to interested third parties so the managing member eventually purchased the property. The other members argued the managing member breached their obligations and acted unlawfully, and committed an economic interference that caused losses so they sought damages. The trial judge found the economic tort of interfering with contractual relations by unlawful means had been established and awarded damages. The Court of Appeal dismissed the appeal.

Read the New Brunswick Court of Appeal’s decision.

Other related articles:
Do equitable ends justify expanding “unlawful means?” The Supreme Court of Canada grants leave in A.I. Enterprises Ltd. v. Bram Enterprises Ltd., Canadian Appeals Monitor

May 23 — Nova Scotia — MacDonald v. R.

Criminal law: Erin Lee MacDonald was convicted of several firearms-related offences. He was entertaining friends at his condominium and was repeatedly asked to turn down the volume of his music. When police appeared at his door, he was carrying a loaded restricted firearm. McDonald argued the police’s search violated his Charter rights but the trial judge ruled the search was justified. The Court of Appeal allowed the appeal in part.

Read the Nova Scotia Court of Appeal’s decision:

Other related articles:
Appeal court overturns gun charge conviction, upholds two others, The Chronicle Herald

LawPRO is warning lawyers to be vigilant about bad cheque fraud over the long weekend, when fraudsters are known to take advantage of bank closures and off-guard staff at law offices.

LawPRO sees a higher traffic of bad cheque fraud activity when lawyers and their staff are busy preparing for a day off and are less likely to spot a red flag, says Dan Pinnington, LawPRO vice-president of claims prevention and stakeholder relations.

“When the fraudsters are setting up the time for the fake cheque to show up and go through the lawyers’ office, if that happens just before a long weekend, when people are otherwise busy and rushing, there is a better chance that the fraud will go through undetected,” he says.

Fraudsters claiming to be legitimate clients would have a lawyer deposit a fake cheque into a trust account and prompt the lawyer to wire good money elsewhere. They are aided by bank closures over long weekends, which delays detection of bad cheques and gives them a bit more time to get money out of the account, Pinnington says.

“They’re taking advantage of the fact that people are distracted and rushing and busy before a long weekend so maybe they take a little bit less care or rush through to get it done,” he adds.

Lawyers who suspect they have received a fraud email can contact LawPRO or check AvoidAClaim.com for a list of confirmed fraudsters. Since the site started tracking e-mails in January 2011, 45 per cent of alerts were from Ontario lawyers. Another 45 per cent came from the U.S., while five per cent came from the rest of Canada and another five from outside North America.

Last month saw a high traffic of e-mails from the U.S., LawPRO also notes. The most common type of fraud e-mails in April was debt collection scams, followed by business loan collection scam. The lastest fraud posted on AvoidAClaim today comes from lawyers D.C and Connecticut who says they’ve been contacted by the purported Seina Bloomberg with regards to a to a collaborative family law agreement dispute. “This is a fraud we have seen before under several other names and similar scenarios,” says the blog entry.

“These frauds are getting are more realistic, looking more sophisticated,” Pinnington says. “Lawyers need to watch out for the red flags. If there’s anything that doesn’t add up, they should ask questions and dig dipper.”

Canada

Brazeau claims his 'day in court' will clear his name, The National Post

Lawyer for accused Bosma killer promises the 'real story' will come out, Toronto Star

Civilian watchdog group launches investigation of northern B.C. RCMP officers, Vancouver Sun


United States

State time limits apply to securities arbitration: Florida court, Reuters

Judge will not stop Arizona from denying driver's licences to immigrants, Reuters


International

Britain's prime minister urges 'EU rebels' to back referendum law, Reuters

Brazil sends port modernization bill up for Senate approval, Reuters

The French are joining forces.

Welch Bussieres managing partner Jean-François Welch says the partnership with DS Avocats will help the firm compete with larger national firms.

International business law firm DS Avocats, based in Paris, France, is partnering up with Welch Bussieres, a 30-lawyer business law firm that has offices in Quebec City and Montreal.

DS Avocats has five offices in France along with offices in China, Vietnam, and Singapore.

Jean-François Welch, managing partner at Welch Bussieres, says this move will help the firm compete with larger national firms.

“Our competitors, which are the national firms, have been growing outside of Canada with a variety of partnerships and mergers, and we’re just trying to be able to follow our clients all the way to China and Europe and be able to offer them the service that they would get in a national or international law firm,” he tells Legal Feeds.

“Multinational corporations have access to seamless services across the planet, we just try to offer the same thing to small and medium businesses,” he says.

DS Avocats has a strong global connection as a founding member of the DS Network, a group of firms in Barcelona, Brussels, Milan, Buenos Aires, and soon Brazil.

François-Xavier Simard Jr., one of the firm’s partners, had a strong influence on the partnership with DS Avocats. Simard conducts a lot of business in Europe and with the new comprehensive economic and trade agreement, currently being negotiated by Canada and the European Union, he convinced the firm to go global in order to take advantage of it, says Welch.

In addition, the firm already does a fair bit of work with the United States so it made sense to seek access to the European and Chinese markets as well, he says.

“We need to be able to follow our clients outside of the borders,” says Welch.

Canada

'Hotheaded' Osgoode grad finally allowed to don robes in Ontario: LSUC, Toronto Star

Toronto man with multiple charges 'complicates court calendar' with two days earmarked to schedule trials, The Globe and Mail

SCC to rule on Walmart baby case tomorrow, Calgary Herald


United States

Plaintiffs' lawyers argue pro-business procedures add to litigation costs, opposite of their goal, Reuters

YouTube decision has judge reconsidering record companies' copyright claims, Reuters


International

UK lawmakers question Google over tax affairs, Reuters

New Zealand's Supreme Court orders case against Megaupload to be transferred from the U.S., Reuters

How do courts assess whether brain-damaged babies should receive aggressive treatments? Is there a place for emotions in judicial decisions? Can we achieve equality for LGBT communities in criminal law?

Jean Frédéric Ménard is researching the legal and ethical dilemmas faced in neonatal care.

These are among the complex questions being tackled by this year’s Trudeau Foundation Scholarship recipients.

The scholarship supports social sciences and humanities students researching and sharing ideas aimed at solving issues of critical important to Canadians.

Five of the 14 Trudeau scholars, whose names were released yesterday, are looking at legal issues. They include Jean Frédéric Ménard, who’s researching the legal and ethical dilemmas faced in neonatal care, for babies up to 28 days old.

Ménard aims to address how health professionals, parents, judges and jurists weigh up whether to pursue aggressive interventions, or opt for palliative care, for babies with serious health problems. This includes babies with severe brain damage caused by asphyxiation during labour or those who have survived a very premature birth, the latter being increasingly common due to medical advances.

He says: “I worked for a year at Montreal children’s hospital as an ethics consultant and realized that there were big questions that don’t necessarily have an answer, so decided to go back to grad school to try to answer them.”

Courts and health workers are told to consider the “best interests of the child” but this is “very difficult to define,” says Ménard, who began his doctoral studies last October at University College London’s Faculty of Law. His research will look at Quebec, France. and the U.K.

Another Trudeau Foundation recipient is Kyle Kirkup, who’s just finished the first year of his doctoral program at the University of Toronto’s Faculty of Law. He’s researching whether it’s possible to achieve equality for LGBT community members in the domain of criminal law.

Kyle Kirkup is examining whether it’s possible to achieve equality for LGBT community members in the area of criminal law.

“Historically the LGBT movement in Canada was very much formed around considerations of the criminal law, he says. For example, it played a central part in the decriminalization of homosexuality in 1969 and in the bathhouse riots in the early 1980s.”

But after establishing some basic principles of equality, attention shifted to family law matters such as same sex marriage and adoption rights, says Kirkup.

“Now that we’ve achieved much of that equality in family law, maybe it’s time to go back to criminal law,” he adds, noting there are still many unresolved issues. For example, questions have arisen as to whether prisons should house transgender inmates in institutions based on their anatomical sex, and whether male or female officers should perform strip searches.

There’s also a debate to be had over how the law treats gay men who fail to disclose that they have HIV, argues Kirkup.

The scholarship provides a $60,000 annual grant for three years, as well as mentoring.

Also benefiting from the grant is Yale University student Ryan Liss, researching whether a common set of fundamental justice principles can “rally the nations of the world,” as in the case of international criminal justice.

Leah Trueblood, studying law at the University of Oxford, wants to see whether clarifying and improving the legal obligations faced in people’s daily lives could lead to a more just society.

Emily White, researching legal theory and human rights at New York University, is looking into a way to use emotions in the service of human rights and dignity.

“This cohort of scholars consists of the best minds in the best institutions studying crucial and complex issues for Canadians and the world,” says foundation president P.G. Forest. “The Trudeau scholarship will provide them with the conditions necessary to generate innovative solutions in their area of study.”

Canada

Legal experts predict rumoured designation of Prince Charles as regent would send Canada into 'unchartered constitutional waters', Vancouver Sun

Ontario Human Rights Tribunal awards $22,000, 8 months pay to male labourer fired while undergoing sex change, Toronto Star

Millard faces first-degree murder charges as police seek two more suspects in Bosma case, The National Post


United States

Supreme Court to take up question of inequitable conduct, Reuters

Justice Department demands penalties for financial advisor Capstone, Reuters


International

Cuba charges Western businessmen with corruption after more than a year in custody, Reuters

Egypt's prosecutors charge Christian teacher for 'insulting Islam', Reuters

The Supreme Court of Canada has ruled that individual members of an Aboriginal group can’t use blockades or other “self-help” remedies when claiming a government breached its duty to consult, and in fact doing so amounted to “an abuse of process.”

In Behn v. Moulton Contracting Ltd., the SCC dismissed an appeal from individual band members of the Fort Nelson First Nation and endorsed the position taken by two lower B.C. courts.

Among the issues addressed by the SCC was whether it amounts to an abuse of process for Aboriginal individuals — in this case all with the last name Behn — to challenge the validity of government issued authorizations as a defence to a legal claim when they failed to take legal action to challenge the government’s authorization.

Writing for the court, Justice Louis LeBel noted:

In my opinion, the Behns’ acts amount to an abuse of process. The Behns clearly objected to the validity of the Authorizations on the grounds that the Authorizations infringed their treaty rights and that the Crown had breached its duty to consult. On the face of the record, whereas they now claim to have standing to raise these issues, the Behns did not seek to resolve the issue of standing, nor did they contest the validity of the Authorizations by legal means when they were issued.

In the case, members of the Aboriginal community had set up a camp blockade in October 2006 to interfere with a logging operation within Treaty 8 territory. The blockade meant the logging company, Moulton Contracting, couldn’t get access to or cut the timber within the traditional territory of the Fort Nelson First Nation where the company was authorized to do so.

The Crown had granted licences to the logging company to harvest timber in two areas of the Fort Nelson territory.

The company brought a tort action against the members of the band (the Behns), who argued the licences were void because they had been issued in breach of the constitutional duty to consult and because violated their treaty rights.

For its part, the logging company filed a motion to strike those defences. The lower courts held that the individual members of the Aboriginal community did not have standing to assert collective rights in their defence — only the community could do so. The lower courts also concluded a challenge to the validity of the licences amounted to an abuse of process, as the members of the community had failed to challenge the validity of the licences when they were issued.

The abuse of process is a key factor in this case, says Thomas Isaac, who heads the national aboriginal law group at McCarthy Tétrault LLP in Vancouver.

“They shouldn’t have been attacking the private third party [Moulton],” says Isaac. “What the court said was if they had a problem with this, they should have gone after the Crown approval, per se. That’s not a surprise but we haven’t had a court to date expressing it that way. It adds further credence to the view the law is becoming reasonably clear in this area.”

Isaac says the decision is contrary to the perception that provincial governments try to convey that the law is uncertain in this area.

“It is another decision in which the court has said ‘we are unwilling to point the finger at private third parties in terms of remedies.’ Unless the private third party has dirty hands in this, you see the court really being reluctant to applying remedies against private third parties,” he says. “If First Nations have a problem with the permits they should be attacking the permits, not the permit holder.”

The decision states: “To allow the Behns to raise their defence based on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute.”