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thegoodlaw last won the day on May 9

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About thegoodlaw

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  1. Truth. Although it does have its benefits. Less pressure to marry a good South Asian girl when you've made such a poor choice of profession.
  2. When I tell people that I'm a lawyer, the reaction is often neutral; maybe because there are so many fucking lawyers in downtown Toronto. But when I tell them that I am a criminal defence lawyer, they're usually more impressed and want to know about the crazy cases that I'm working on. Do I defend murderers? How about sexual assault cases? I don't like to talk about the cases I worked on and definitely not the ones I'm working on right now, but I do recount a few interesting cases I have read recently. With family, I'm one of the less accomplished ones, so nothing impresses them. On a side note, I find that men often ask me if I defend murderers. Women often ask me if I defend those accused of sexual assault.
  3. I think your point perfectly demonstrates is that there are procedural protections in place for intrusive forms of searches. Strip searches is one example. Another example is full body scanners, where the picture is meant to be anonymous and then immediately destroyed. My concern is that cell phone searches are being treated as the search of an ordinary good (notwithstanding what some insignificant BC provincial court judge thinks) rather than a more intrusive search. There is then the related implication that no privacy attaches to the contents of your phone, analogous to saying that no privacy attaches to your body (which is absurd).
  4. I'm just repeating myself now, but you have now repeatedly failed to grasp the point I'm making so I'll make it one more time. The data within a cell phone is not a good in the ordinary sense that is capable of search and seizure in the ordinary sense. You keep saying that the CBSA's policy does not desire or create no expectation of privacy. Then explain to me how a person retains any residual expectation of privacy when they hand over the passwords to their phone/laptop?
  5. The CBSA policy is bullshit and designed to maximize their powers; so I don't give it much weight. What is important is the effect of their policy. The effect of their policy is that there is no reasonable expectation of privacy in the information contained within a cell phone. It is simply not plausible to suggest that the data within a cell phone is a good as much as the shirt they pull out of your luggage. For one, the information within the cell phone does not just affect the detained individual, but others as well, who may also have an expectation of privacy in it. As to your last point, the beauty of common law is that it constantly evolves with changing circumstances. Cell phones, and the fact that they are so much more than phones now, are disrupting settled law. Look at the SCC's decision in Marakah. And then maybe study up on other s. 8 decisions that repeatedly warn against a formalistic interpretation or characterization of the circumstances that result in an expectation of privacy. But what do I know...
  6. I'm glad that it's been discussed elsewhere, but for the purposes of this discussion it is important that we understand that a reduced expectation of privacy does not mean no expectation of privacy at all, which is what the CBSA policy effectively amounts to. If you don't find value in debating it further, I suggest you move on. To engage in a balancing exercise, there needs to be due process. Open-ended authority to go on a fishing expedition into people's phones does not engage due process or is an acceptable form of "balancing" or even acknowledges that there is even a reduced expectation of privacy.
  7. First of all, I didn't say that physical goods can be searched no-problemo. I would apply the same probable cause standard to physical goods. Secondly, as I have said, the contents of an electronic device attracts a higher expectation of privacy than the open contents of your bag. And for clarity, the privacy is not in the physical object of the phone, but in the information within. Police do need judicial authorization under most circumstances to search the contents of a phone. Why not the CBSA?
  8. My fundamental concern remains that there are no procedural safeguards for these searches, notwithstanding the fact that they are not done as a matter of routine. Basic procedural safeguards should not be onerous for the CBSA. One solution could be to clone the cellphone to preserve the data and then seek judicial authorization to review it.
  9. They are subject to litigation privilege as well as solicitor-client privilege. They may leave the sphere of privilege once the documents are filed, but that does not mean that they are not privileged before. With respect to this issue, the CBSA's policy is bullshit. A reduced expectation of privacy does not result in no privacy at all. A search of your laptop or phone is a highly invasive search that must require greater procedural protection than probable cause.
  10. But that's exactly my point. If I know that a particular school has higher standards than the other, then it is reasonable to conclude that they are smarter than the other. I'm not saying that the other person is incompetent; rather, that they are likely to be less competent. Or put another way, I'd expect the UK graduate to be an average student, but the U of T graduate to be a bright student. That matters. It may be the case that further on into their careers the student from the no-name UK university becomes a very skilled lawyer. But fresh out of school, when the only metric I have to judge them is their academic history, the fact that they were too dumb to get into a Canadian law school counts against them.
  11. They really don't, and honestly the bar exam is not a real impediment to practicing law. If you know how to flip pages and find information, you'll pass the bar. I agree that it cannot be said that a Canadian who goes to a foreign law school is necessarily going to be incompetent at the practice of law. But it can be said that a Canadian who goes to a foreign law school is likely to be less adept at the practice of law than a U of T graduate (for example). Law occasionally requires intellect (ha!), which directly translates to the quality of representation you can offer. It is reasonable for me to look at two lawyers and say: Lawyer X went to U of T. They're likely to be smart. Lawyer Y went to University of the West Midlands. They're likely to be stupid. I'll choose X over Y.
  12. If someone came to my firm touting their "Coding Bootcamp" experience, the likely response would be: "Great. But do you know how to operate a fax machine".
  13. I don't know what jurisdiction you practice in. If you try to divert whatever case you can, that's good. Nor am I saying that all Crowns ignore RPC or public interest. I have come across excellent Crowns who are good people and ethically discharge their role. But I have come across some others, in some specific jurisdictions, who make some very questionable calls. Edit to add: I think there should be provision for costs to be awarded against the Crown where cases collapse at trial.
  14. Or maybe the Crown should be more circumspect in how they proceed with prosecutions? RPC and public interest is sometimes forgotten.
  15. It shouldn't be. The courts are open to the public unless a judge says otherwise. Who gave the Crown the authority to vet people who can watch the trial? In a smaller jurisdiction I would pick my battles, but in Toronto I'd raise a stink about it.
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