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Launch of the All-New LESA Library

The all-new LESA Library is an online, comprehensive, and searchable resource that provides valuable legal information to Alberta’s lawyers, articling students, and legal support staff. Organized by area of law, subscribers can access valuable resources related to their specific area(s) of practice as well as our practice management collection and content tailored to specialized areas of law.

Housed within an easy-to-navigate user interface, the all-new LESA Library now features improved searchability (including full-text search), newly added content, and the ability to view publications and program papers on an interactive PDF viewer.

See below for answers to some frequently asked questions.

What resources are available on the LESA Library?

The LESA Library provides you with Alberta-specific legal information you can access from anywhere, at anytime. The LESA Library includes access to over 1,000 LESA program papers from 2010 to the present as well as publications, checklists, editable samples and precedents, and fillable forms.

The LESA Library also includes the contents of the following LESA publications:

  • Alberta Business Law Practice Manual
  • Alberta Civil Practice Manual
  • Alberta Family Law Practice Manual
  • Alberta Real Estate Practice Manual
  • Alberta Wills and Estates Practice Manual
  • Alberta Surrogate Forms
  • Alberta Foreclosure Forms
  • Criminal Law Fundamentals

Note that publications that are only available in hardcopy are not available on the LESA Library. This includes the annual Alberta Labour Relations Board Reports, the Alberta Labour Code Practitioner’s Manual, and Alberta Wills and Estates Legislation. Publications can be purchased in hardcopy form here.

What is the difference between a full subscription and subscribing to one or two areas of law?

A full subscription to the LESA Library includes the practice manuals, papers, and resources from all six core areas of law, plus content from the specialized areas of law and practice management category. Alternatively, for most individual and firm subscriptions, you may choose to subscribe to one or two core areas of law. These subscriptions also include access to our specialized areas of law and practice management content. Our six core areas of law are: Business Law, Civil Litigation, Criminal Law, Family Law, Real Estate, and Wills and Estates.

Note that firms of 20 lawyers and up must purchase a full subscription to the LESA Library.

What are the individual subscription options?

Individuals may purchase a LESA Library subscription to one, two, or all six core areas of law. An individual subscription for one area of law costs $495/year or $45/month. An individual subscription for two areas of law costs $745/year or $68/month. A full subscription to the LESA Library for an individual costs $895/year or $82/month. Note that GST is charged in addition to the subscription cost.

All subscriptions include our specialized areas of law and our practice management content.

What are the firm subscription options?

Firms are divided into tiers based on the total number of lawyers in their firm. We now have additional tiers available tailored to firm size. Note that law firms of 20 lawyers and over must purchase a full subscription to the LESA Library.

All subscriptions include our specialized areas of law and our practice management content.

Sign up for the LESA E-List to be the first to receive LESA Library notifications, including subscription options, pricing, and our anticipated launch date.

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What a Difference a Year Makes

Guest Author: Lisa Silver, Associate Professor, University of Calgary Faculty of Law

Last year, I wrote a blog article (see Adding Zora to the 1L Crime Syllabus) outlining the many ways in which the Supreme Court of Canada decision in R v Zora, 2020 SCC 14, matters to the criminal justice system. Justice Sheilah Martin wrote eloquently and passionately in that decision for a more humane bail regime, which would break the cycle of incarceration prompted by fail to comply convictions. Such a bail regime would align better with Criminal Code requirements, be more mindful of how bail conditions can adversely and disproportionately impact vulnerable and marginalized groups and be more responsive to societal needs and concerns.

In short, the Zora decision seems like a game changer but is it really? This is the question I will be exploring in the LESA Criminal Law Hot Topics webinar on June 18. As part of my review, I look not only at how Zora impacts bail decisions but also how Zora impacts other areas of the justice system such as sentencing, probation orders, and even compelling an appearance for trial. I will also “reveal,” which province has surprisingly taken Zora to heart by citing the decision more often than other more populous jurisdictions.

Conversely, there is little uptake in the new provisions for judicial referral hearings under s 523.1. These provisions, part of the recent amendments to the Criminal Code, are designed to alleviate the problems of overincarceration by providing an alternate pathway for fail to comply with release order offences, where the fail to comply does not result in victim harm, property damage or economic loss. Although touted as a much needed alternative to criminal charges, for this diversionary option to be effective, its use needs to be consistent.

The other two hot topics I will be presenting on June 18, revolve around the immense changes in our legal system this year as a result of the COVID-19 crisis. The practice of law and, I would suggest, even legal principles have changed irrevocably as a result.

For instance, applications to permit witnesses to testify by video or audio conferencing under s 714.1 are burgeoning. Based on a WestLaw case search, from March 13, 2020, when Canadian authorities first shut down many of our courts due to the pandemic, until June 3, 2021, 81 decisions cite s 714.1. This number is startling considering only 16 decisions cite the section from January 1, 2019 to January 1, 2020. True, this may change in the coming months as restrictions ease but the case law and principles surrounding these applications will remain.

Remote hearings of witness evidence engage still other issues such as remote appearance of the prosecutor or counsel under s 650.02 and the interpretation of s 650 (1) proscribing that accused “shall” be present at trial. This raises the concern of whether an accused participating in a Zoom trial is “present in court” pursuant to that section. Additionally, if the accused is not “present,” under what conditions pursuant to s 650(2)(b) can the court allow the accused to be “out of court” during the trial. These and other questions raised by the interplay of these sections will be on the “web” table on June 18.

Finally, I will review the pandemic’s impact on sentencing, particularly the issue of enhanced credit for pre-trial custody. Even before the pandemic, credit for pre-trial custody was capped at 1.5 days credit for every 1 day in pre-trial custody by s 719(3.1) but only “if circumstances justify it.” Case law in Ontario, namely the Ontario Court of Appeal decision in R v Duncan, 2016 ONCA 791 at para 6, found that “particularly harsh” pretrial custody can “provide mitigation apart from and beyond the 1.5 credit in s 719(3.1).” This finding resonates with many courts during the pandemic as those detained in custody awaiting trial are often subject to quarantines and lock downs. Some individuals are at even further risk due to their own particular health concerns.

Although most (but not all!) sentencing courts take notice of the effects of the pandemic in the prison population and hardships of such incarceration, courts are not consistent on where such “mitigation” resides within sentencing principles. Is it found, as Duncan suggests, in an enhanced pre-trial credit beyond the capping provisions in s 719(3.1)? Or is it a mitigating factor on sentence? Does the mitigation reduce an already fit sentence or is it merely one of the many considerations in determining a fit sentence? In the alternative, is the pandemic a collateral consequence? These questions and many more will be important considerations as we move through the pandemic and, in my view, will impact the way we look at sentencing principles at large in the future.

What a difference a year makes! Join me and the other panelists as we grapple with these pressing issues and many more on June 18.

 

 

 

 

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Presenter Profile: James T. Swanson | Recent Case Law

James T. Swanson Guest Author: James T. Swanson

I am very pleased to have been invited to participate in LESA’s Alberta Legal Technology Conference for 2021.

As a bit of background, since my legal bio is readily available online, I was born and raised in cattle and wheat country in southern Alberta, spending the first six years of my life on a farm with no electricity (and I’m not making that up).  In a way, I’ve spent the rest of my life trying to catch up and make up for that period of technological deprivation.

Within weeks of starting my undergrad program at the age of 17, I auditioned on a dare for a local band, got the gig, and became a professional rock and blues musician.  That allowed me to put myself through undergrad and later law school as a “weekend warrior”, with a seven year full time gigging career in between. I played keyboards, which led me to synthesizers, which led me to computers, and so on…..

Since the 1990’s and to some extent before that, my legal practice has focused on technology, intellectual property, privacy, data security, media, and entertainment.  In addition to being a member of the Law Society of Alberta since 1984, I am also a registered trademark agent.

Besides obtaining my law degree from the University of Alberta in 1983, I enrolled in the first online MBA program on earth in 1994. That was with a Canadian and Albertan institution, Athabasca University.  The program has been very successful, and I have been a member of Athabasca’s academic faculty for roughly 20 years, delivering an online business law elective to MBA students. So, I’ve been working virtually since 1994.

After decades with larger law firms, I launched my own solo/virtual and cloud-based practice on January 1, 2019 as Swanson Law, at swansonlaw.ca.  I had no idea a pandemic would hit a year or so later, but I adapted quickly by eliminating Starbucks meetings and paying for a pro Zoom license to avoid the free version’s time limits. That was basically all it took, although I do miss the coffee.

My presentation on June 10 will be with respect to recent case law. You should check it out. I will be reviewing decisions of interest not only to practitioners of the law in my areas of practice, but also to all practitioners using or adapting to recent technological change and newer ways of interacting with clients.  And that, I would say, means nearly all of us.

Click here to register. I look forward to (virtually) seeing you there.

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Digital Border Searches: R v Canfield, 2020 ABCA 383

Guest Author: Professor Steven Penney | University of Alberta, Faculty of Law

While the border is not a Charter-free zone, the courts have largely deferred to the state’s sovereignty and security interests in applying section 8 of the Charter to customs and immigration searches. The template was set in R v Simmons,[1] where the Supreme Court rejected a challenge to legislation permitting warrantless and (in many cases) suspicionless searches at border crossings. Writing for the majority, Chief Justice Dickson held that the usual prerequisites of reasonableness under section 8 (warrants and probable grounds) did not apply to border searches. Sovereign states’ right to “control both who and what enters their boundaries” justified a more flexible approach than in the criminal realm.[2] “National self-protection,” including concerns about illegal drug importation and tariff enforcement, demanded a diminished expectation of privacy for people and goods entering Canada.[3] The Court accordingly upheld powers permitting routine, warrantless frisk and luggage searches without suspicion as well as strip searches on reasonable suspicion.[4] In later decisions, the Court also permitted warrantless, reasonable suspicion-based vehicle searches[5] and “bedpan vigils” at the border.[6]

Most courts have applied the same logic to searches of digital devices, requiring neither warrants nor objective grounds for suspicion.[7] But in R v Canfield, the Alberta Court of Appeal struck down legislation permitting digital searches without a warrant or any degree of suspicion.[8] The court hinted to Parliament, however, that such searches might be found reasonable under a standard lower than reasonable suspicion[9] and that searches for customs and immigration-related documents (as opposed to contraband) might be reasonable without any suspicion whatsoever.[10]

Suspicionless and warrantless searches of persons and physical goods for border security reasons are defensible. Though they are at least somewhat intrusive, affect many people, and may be disproportionately used against disfavoured minorities, the threat of random inspection is arguably necessary to adequately control the flow of persons and goods into Canada.

But the same is not true of digital devices. Digital searches are markedly more intrusive than physical ones and present a dramatically lower risk to border security. They give the state vastly greater access to intimate personal information than frisk or luggage searches. And the internet has eviscerated border control agents’ capacity to prevent digital contraband (chiefly child pornography) from entering Canada. The vast proportion of child pornography available in Canada did not pass through a physical border.

With minor exceptions,[11] there is simply no border control justification for suspicionless (or even warrantless) digital device searches. Indeed, there is evidence that police often conspire with customs officials to use digital border searches to evade the basic Charter protections attaching to ordinary criminal investigations.[12] Despite all of this, most courts have simply invoked Simmons in permitting border officials to conduct suspicionless searches of digital devices.[13]

Even the court in Canfield (which held that reasonableness required some degree of individualized suspicion for at least some digital border searches) greatly exaggerated the threat posed by digital contraband, especially child pornography. It is true that child pornography, and the underlying exploitation that it incentivizes and perpetuates, is a serious social problem. It is also true that it is often found on digital devices.

But the court conflated the state’s general interest in combatting child pornography with the specific border control rationale for permitting suspicionless searches. Allowing police to search digital devices without a warrant or individualized suspicion would undoubtedly help mitigate the harms of child pornography. But such a power is beyond the constitutional pale, and rightly so. Giving border control agents a power to do the same thing, for the same reasons, is unjustified.

Put simply, digital border searches do little to advance the state’s border security interests, yet they pose a considerable threat to privacy, especially to members of marginalized groups. In practice, such searches serve only general criminal law enforcement purposes. Border agents should accordingly have no greater power to search for digital contraband than police.

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Have you registered for Criminal Law Hot Topics? Join Judge S.A. Cleary, Professor Steven Penney, and Professor Lisa Silver on June 18th for a discussion on hot topics in criminal law, including Privacy at the Canadian Border, Developments in the Law of Bail, Sentencing Updates, and more.

You may also be interested in the on-demand version of: Crossing the Border with Electronic Devices.

For further reading, see Steven Penney, “‘Mere Evidence’? Why Customs Searches of Digital Devices Violate Section 8 of the Charter” (2016) 49:1 UBC L Rev at 505; Robert J Currie, “Electronic Devices at the Border: The Next Frontier of Canadian Search and Seizure Law?” (2016) 14 Can J Law & Tech 289

[1] R v Simmons, [1988] 2 SCR 495.

[2] Ibid at 523, 572-59.

[3] Ibid at 528-29.

[4] Simmons, supra.

[5] R v Jacques, [1996] 3 SCR 312.

[6] R v Monney, [1999] 1 SCR 652 (detention of traveler suspected of ingesting contraband to preserve excreted material).

[7] See e.g., R v Bialski, 2018 SKCA 71 at paras 110-112, leave to appeal dismissed, [2018] SCCA No 442; R v Buss, 2014 BCPC 16 at paras 22-32; R v Moroz, 2012 ONSC 5642 at paras 20-21; R v Whittaker, 2010 NBPC 32 at paras 8-13.

[8] 2020 ABCA 383 at para 75, leave application dismissed, 2021 CanLII 18037 (SCC).

[9] Ibid (“in our view the threshold for the search of electronic devices may be something less than the reasonable grounds to suspect required for a strip search under the Customs Act”).

[10] Ibid at para 79.

[11] It might be reasonable, for example, to require travelers to produce documentation (including that found on digital devices) to justify either their eligibility to enter Canada or entitlement to import goods. Such an obligation is far less intrusive, however, than giving border officials a power to search digital devices themselves.

[12] See e.g., R v Moroz, 2012 ONSC 5642.

[13] See e.g., R v Bialski, 2018 SKCA 71 at paras 100-09 and decisions cited therein.

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French Trial in Alberta?

Scope of Language Rights in Criminal Proceedings

While Alberta has only adopted English as its official language, it is not exempt from having legal obligations to provide certain legal services in French. The right to a trial in the official language of one’s choice is one of these obligations that was initially implemented in 1985 by way of s 530 of the Criminal Code. Furthermore, s 4(1) of Alberta’s Languages Act protects the right to make an oral intervention in front of the Provincial Court of Alberta, the Court of Queen’s Bench of Alberta, and the Court of Appeal of Alberta in either of Canada’s official languages.

Section 530, which entitles the accused to a trial in the official language(s) of their choice when faced with criminal charges, was interpreted for the first time in R v Beaulac by the Supreme Court of Canada. This landmark case established that language rights should be subject to a broad interpretation, and so provincial tribunals have a legal obligation to be institutionally bilingual, even in a minority context. In addition, the right to a trial in the chosen language is granted when the accused has a “sufficient” attachment to the language (paragraph 34).

As for the application of s 530 in Alberta, R v Vaillancourt reaffirms the Beaulac principles and adds that judges must play an active role in protecting an accused’s language rights by informing the accused of their right to a trial in the official language of their choice. It was decided that the time required to organize a trial in French would not constitute of an exceptional circumstance as described in R v Jordan.

Two years have passed since the publication of the Vaillancourt decision. How has the Alberta justice system adapted to ensure this never happens again?

French-Speaking Population of Alberta

French Trial in Alberta?Before diving deeper in the meaning and consequences of s 530, it may be surprising to evaluate the imprint that French has left on Alberta. For example, did you know that French was the first European language spoken in Alberta?  This means that French has been spoken in Alberta for over 200 years!

According to the 2016 Census, more than 268,000 Albertans speak French (6.7% of Alberta’s population) representing a 12% increase compared to the 2011 Census. Alberta has the third largest francophone community living in a minority context in Canada after New Brunswick and Ontario.

Steps Taken Towards Institutional Bilingualism in Alberta

Under the leadership of Chief Justice Mary T. Moreau, the Court of Queen’s Bench of Alberta published a bilingual order to inform the legal community of new procedures such as written notices, signage and oral questions, to confirm that the accused accepts or waves their right to choose the language of the trial.

The same court also took measures to ensure its institutional bilingualism by adding a webpage with French resources, creating a steering committee, hosting meetings for bilingual Bar members and assigning a Counsel for French and Interpreter Services. Presently, 38 judges are taking French classes and seven judges are now able to hear French cases in Alberta.

The Provincial Court of Alberta’s website contains information about trials in French, which is being updated, including development of a form similar to the one created for use in Court of Queen’s Bench.

Currently, 12 Provincial Court Judges are receiving training in legal French, nine of whom hear proceedings in French.

There is still much to be done in terms of access to justice in French in Alberta, but the initiatives taken by both Courts to advance the cause are admirable and provide hope that the Albertan justice system can better serve its French-speaking population.

Submitted by the Association des juristes d’expression française de l’Alberta (AJEFA) under the direction of Paul M. Bourassa.

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Presenter Profile: David Fulton | Cyber Insurance

David Fulton, CEO and President of True North Group Inc. co-presented “Cyber Insurance” with Stuart Tate of HighStreet Insurance.

The on-demand program is now available!

Key take-aways include:

  1. Understand why you are a target for cyber criminals
  2. Dive into the anatomy of a cyber-attack
  3. Consider cybercrime costs
  4. 10 tips to avoid cyber-attacks
  5. How to know you’ve been attacked by a cyber criminal
  6. What to do if it happens (hint: advance planning is a key strategy!)

With over 25 years’ experience, David will offer practical advice and actionable steps you can take today to help minimize your risk of data loss due to malware, cyber criminals, and ransomware as well as help avoid loss of business continuity in the event of a cyber-breach, fire, flood, pandemic, or natural disaster.

Through True North Group Inc. and its strategic partners – Microsoft, Fortinet, and Datto – David has been providing security expertise, business continuity, and has managed IT security services since 2015 to True North’s clientele. True North’s security briefings have brought respected thought leaders and subject matter experts to the fore to provide best strategies to defend networks and computer systems from advanced persistent threats, malware, and cyber-attacks.

David can be found on LinkedIn @Dave Fulton and on Twitter @DavidJFulton and @TrueNorthGrpInc

 

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Presenter Profile: Prof. Amy Salyzyn | Lawyer Technological Competence

Amy Salyzyn is an Associate Professor at the University of Ottawa’s Faculty of Law. She is a member of the Law Society of Ontario. Amy received her J.S.D. from Yale Law School for her dissertation exploring the judicial regulation of lawyers in common law jurisdictions. She also received her LL.M. from Yale Law School and her J.D. from the University of Toronto Law School, where she was awarded the Dean’s Key upon graduation. Before coming to the University of Ottawa, Amy served as a judicial law clerk at the Court of Appeal for Ontario and practiced at a Toronto litigation boutique. Her litigation practice included a wide variety of civil and commercial litigation matters including breach of contract, tort, professional negligence, securities litigation and employment law as well as administrative law matters.

Amy has written extensively in the area of legal ethics, lawyer regulation, the use of technology in the delivery of legal services and access to justice, having now published over 10 articles in Canadian and international peer-reviewed journals on the topic. She is also the author of two book chapters, including a chapter on client confidentiality in the leading Canadian legal ethics textbook. Amy is a regular legal ethics columnist for Slaw.ca, a Canadian online legal magazine, and has contributed to Jotwell.com.

Lawyer Technological Competence is now available on-demand. This program was originally presented as a webinar in our 2021 Alberta Legal Technology Conference. The fact that there now exists a formal duty of technological competence raises the question of what, exactly, does this duty entail? What does this duty require from lawyers? In her presentation, Professor Amy Salyzyn presents “6As” taxonomy for thinking about lawyer technological competence – modern lawyers need be Automated, Aware (of technological risks), operate as Avatars (i.e. competently deliver services digitally), use AI to Augment their legal practices, be Acquainted with emerging AI technologies and be Attentive to how AI in being used in the justice system.

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Alberta Real Estate Practice Manual

Whether you practice in commercial or residential real estate, this manual is for you. The Alberta Real Estate Practice Manual provides a comprehensive overview of real estate transactions in Alberta. Written by real estate practitioners from across the province, this publication follows the real estate deal from start to finish.

Highlights include chapters on:

  • Listing agreements
  • Offers to purchase, options, and rights of first refusal
  • Pre-closing
  • Closing
  • Mortgages
  • Condominiums
  • Insurance
  • Tax considerations
  • Remedies

The Alberta Real Estate Practice Manual is a subscription service that is updated periodically. Subscribers receive updates automatically, invoiced at the time of publication.

Last Update: 2018

View contents

This manual is available in both hardcopy and electronic formats. Click here for details and to purchase your copy.

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Presenter Profiles: Nancy Bains and Jill Clayton | Privacy

Nancy Bains is Tribunal Counsel and Privacy Officer at the Law Society of Alberta. She has been overseeing the Law Society’s privacy program since January 2015. In that role, she has coordinated the development of up-to-date processes, policies, and training.

Nancy was in private practice for years prior to joining the Law Society. She graduated from the faculty of law at the University of New Brunswick in 2002 and had previously obtained her Bachelor of Arts in Political Science from the University of British Columbia.

Jill Clayton was sworn in as Alberta’s third Information and Privacy Commissioner on February 1, 2012. In February 2017, Alberta’s Lieutenant Governor in Council reappointed Jill Clayton as Information and Privacy Commissioner for a term to expire on January 31, 2022.

Jill began her career with Alberta’s Office of the Information and Privacy Commissioner (OIPC) in 2004 as a portfolio officer with the team responsible for ensuring oversight and compliance with Alberta’s Personal Information Protection Act (PIPA). She served as acting director, PIPA, from 2007 to 2008 and director, PIPA, from 2008 to 2011. In June of 2010 Jill was appointed Assistant Commissioner, responsible for the development, implementation and oversight of amendments to PIPA, particularly mandatory breach notification requirements.

Prior to her service with the OIPC Jill worked as a privacy consultant, providing services to public- and private-sector clients, primarily in the health care, oil and gas, telecommunications and non-profit sectors. She also worked for the Bethany Care Society as manager, planning and performance measurement, from 2001 to 2002 and records management co-ordinator from 1998 to 2000.

Nancy joined Jill to iterate the value of a solid privacy management framework to help navigate challenges when they arise in our on-demand program, Privacy as part of our 2021 Alberta Legal Technology Conference. Consider the obligations lawyers have in protecting the information they hold of clients and the various considerations that go into such things as working from home, virtual technologies, and safeguarding for privacy breaches.

 

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Presenter Profile: Martin Kratz QC | Legal Technology Trends

Martin Kratz QC is an author, professor, and former technology and intellectual property lawyer. As chair of our Alberta Legal Technology Conference, Martin kicks off the conference with his presentation on Legal Technology Trends this coming Thursday. Martin will set the stage reflecting on the impact of technological change on the practice of law, how those changes are increasing, and how lawyers need to adapt to those technological challenges.

 

 

Topics will include:

  • What is cloud computing?
  • Why move to the cloud?
  • Mandatory private sector privacy law
  • Considerations in cloud computing

Martin has been internationally recognized as a leading lawyer in many fields such as intellectual property law, technology law, data protection, and cyber security. He has worked in intellectual property protection, transactions, assessments, enforcement, outsourcing, IT procurement, anti-spam, data protection, information and privacy law, and the protection and commercialization of IP.

Martin is co-director of Osgoode Hall Law School’s Intellectual Property Law LL.M. program and he teaches several courses in that program as well as the Business Law LL.M. program. Martin also teaches Information Technology Law and Ethics, a master’s level cyber security course, in the Information Systems Security Management program of the Faculty of Management at Concordia University of Edmonton.

Martin has written 19 books, 40 book chapters and over 450 articles on various topics involving IP, technology law, cyber security including the following text books: Canadian Intellectual Property Law, 2020; 3rd Ed.; The Business of Innovation Intellectual Property Transactions and Strategies in the New Economy, 2016; Canadian Internet Law 2013; Licensing 2009; Information Systems Security: A Practitioner’s Guide, 2003, 2nd Edition; Electronic Commerce Law 2002; Internet Law: A Business and Professional Guide, 1998; The Computer Virus Crisis, 1992, 2nd Ed.; Control and Security of Computer Information Systems, 1988.

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Legal Technology Trends broadcasts live this coming Thursday at noon. Plus, save $260 if you register for the entire 9-part conference before May 13. Can’t make a date? Not to worry–registration incudes access to the recordings so you can watch and learn at your convenience. Click here for details and register today.