Lawyers reticent about using social media need to get over their fears, according to practice management consultant David Bilinsky. He was on a panel entitled Social Media in the Courtroom at the Canadian Bar Association’s annual conference in Vancouver this morning.

Facebook and other social media sites are playing an increasingly integral role in the justice system.

“We need to be aware of these tools and how to use them, and how our clients are being affected by them,” he said. “And if you don’t have that knowledge, I think you’re missing an important piece of being able to advise your clients.”

And it’s not just judges who need to get involved, according to Bilinski’s fellow panellist, Jean-François De Rico, of the Quebec City office of Langlois Kronström Desjardins. He quoted from the Canadian Judicial Council’s ethical code for judges requiring them to “maintain and enhance the knowledge, skills, and personal qualities” necessary for effective judging.

“Historically that was with regards to the law, or maybe social events and economic situations,” he said. “I think the widespread use of information technology as a whole creates the need for the judiciary to acquire an understanding of those basic concepts and of social media as a whole. . . This is not just a specific field of knowledge anymore. This is something that is not only widespread, but affects and is implicated in a number of human activities.”

Given the ubiquity of social media sites such as Facebook, which is fast approaching one billion users worldwide, the panel’s third member, Don Richards, was surprised to find that a 2010 dismissal case he was involved in was the first in Canada involving Facebook.

“We had to rely on blogging cases,” said the Vancouver-based Farris Vaughan Wills and Murphy LLP partner. Since then, he says there have been many Facebook termination cases, “and there are going to be many more.”

Richards acted for West Coast Mazda as its firing of two union organizers was upheld by the B.C. Labour Relations Board in the 2010 decision. The two workers had posted potentially threatening language and homophobic slurs against their bosses. The supervisors were able to follow the abuse in real time since they were friends with the pair on Facebook.

Richards had to deal with establishing a nexus to the work environment in the Facebook postings, but also in preserving the evidence, since the postings were removed by the time the hearing occurred. However, the supervisors had made copies of the postings before they were taken down.

De Rico says things could be clearer on what constitutes suitable preservation of Facebook evidence.

“Printouts are a way of doing it, but courts have not indicated whether or not printing to pdf [of] Facebook pages would also be a good way to preserve it. My recommendation is if you want to preserve the evidence, do it in as many ways as you can. There’s software out there,” he said.

B.C. Provincial Court Judge Gary Cohen, who moderated the session, sits on the court’s technology committee and also writes a column, Cohen’s Computer Corner, for a judges’ magazine. He has embraced Facebook as a means of service in cases before him.

“I’ve ordered service either by Facebook or pretty much any other electronic form where I’m pretty sure they’ll actually see a copy of the document,” he said. “As far as I’m concerned, it’s much better than just posting it in a newspaper where you’re pretty much assured they will never see it.”

Is the Canadian Bar Association becoming too political?

That was the question some CBA council members were asking over the weekend as they debated the divisive and disparate issues of drug policy and daycare.

Resolution 12 on harm-reduction drug policy urged the federal government to soften its approach to drug addicts in the criminal justice system by approaching all drug use as a “normal human activity that may have harmful consequences to the health of individual users and society as a whole, and take a policy approach through the regulation and taxation of drug use and distribution that aims to reduce any harm and dedicates funds raised to effectively addressing that harm, such as through the creation of more supervised injection sites.

Supporter Gail Wartman of Moose Jaw, Sask., said she had seen friends and clients struggle with addiction.

“What criminalization does is it penalizes them additionally way beyond the addiction that they struggle with. And until they’re able to be treated as human beings, and taken care of, including at safe injection sites, the problem is only going to get worse,” she said.

Detractors like Kathleen Kelly questioned the effectiveness of safe injection sites, but Ken Armstrong of Vancouver wondered whether it was a suitable subject at all for the CBA.

“We ought not to be taking political positions that go outside sort of the lawyers for lawyers kind of issue,” he said. “This is not necessarily a rule of law issue. In my opinion, it’s a political issue . . . we do have to be mindful of where the boundary is between us as a legal organization versus just taking a political position. I do believe it’s beyond our scope.”

The resolution was eventually tabled after its sponsors agreed to go back and have another look at its wording.

Earlier, another resolution on the retention of women in the profession urged the CBA to support a 2001 study by the Margaret and Wallace McCain Family Foundation that recommended expanding “publicly funded preschool education for all 2- to 5-year-olds. It would be available, affordable, top-quality and voluntary.”

Canada

Peace officer’s alleged killer due in Calgary court to face 1st degree murder charges, Winnipeg Free Press

PQ government plans to strengthen language laws if elected, National Post

Toronto residents have handgun ban in their sights, Toronto Sun

United States

Limited gun-seller liability law to be tested, Reuters

Weight gain in children slowing due to school-food laws, study finds, Reuters

International

Lawyers in Iraq targeted over sensitive sectarian cases, Reuters

Vatican scandal sees Pope’s butler standing trial for theft, Toronto Star

To celebrate the 100-year anniversary of the office of Canada's Judge Advocate General, outgoing Canadian Bar Association president Trinda Ernst presents Brig. Gen. Blaise Cathcart,  Judge Advocate General of the Canadian Forces, with a gift at the opening plenary of the CBA's annual meeting in Vancouver on Sunday.

Cathcart said he "is proud to carry on the legacy of combining the profession of arms and the law."

He is the 14th JAG. Col. Henry Smith was named Canada's first JAG in 1911 at the age of 74, even though the mandatory retirement age in the military at the time was 65. Smith went on to serve in the office until he was 80.

According to the National Defence web site:

The Judge Advocate General performs two unique statutory roles set out in the National Defence Act. The Judge Advocate General is the commissioned officer, appointed by the Governor in Council, to superintend the administration of military justice in the Canadian Forces [s. 9.2(1)].

In respect of that superintendence function the late Chief Justice [Antonio] Lamer commented that the intention of the legislative provision “was to recognize and continue the exercise of responsibilities similar to those of the Attorney General as historically performed by the JAG under English common law.”¹

The Judge Advocate General also performs a separate function as a legal advisor to the Governor General, the Minister, the Department and the Canadian Forces in matters relating to military law [s. 9.1]. Canadian military law includes the law relating to the constitutionally separate system of military justice as well as the governance, administration and activities of the Canadian Forces.

Military law governs the armed forces in peace and during armed conflict, at home and abroad. The breadth of the scope of military law is reflected in the fact that the Judge Advocate General is a legal advisor to both the Department and the Canadian Forces.