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Courts to decide whether police should be able to access computer, phone data during arrests

Police should be required to obtain a search warrant before combing through the text messages, emails and other data on a suspect's smartphone after arrest, a defence lawyer told British Columbia's highest court on Monday.

The B.C. Appeal Court case, involving a kidnapping nearly eight years ago, is the latest to consider when police should be able to search the vast amounts of private information stored on modern-day cellphones.

Rajan Singh Mann was convicted two years ago for a June 2006 kidnapping in Richmond, B.C., where Gary Kwong was taken by gunpoint and held for a $100,000 ransom. Kwong was released, relatively unharmed, the following day and no ransom was paid.

Charges were originally laid against Mann, William Scott and Terry Richardson, but Scott pleaded guilty and Richardson died before the case was finished.

In the days and weeks that followed the kidnapping, Mann was arrested twice, and each time police seized a BlackBerry smartphone.

Both phones were protected by passwords, prompting investigators to send them to an RCMP lab in Ottawa for forensic examination. Investigators were able to recover data from one phone two months later, while the contents of the other phone weren't recovered until September 2008.

At trial, the judge saw dozens of text messages from the two phones. The judge concluded whoever used the phones was involved in the kidnapping, and also concluded Mann could be linked to both phones.

But Mann's lawyer, Peter Wilson, told a three-judge panel on Monday that the RCMP should never have searched the smartphones without a warrant.

"Smartphones are potentially repositories of vast amounts of personal information," said Wilson.

"The privacy interests that are engaged with these kinds of devices are markedly different from the privacy interests in other receptacles."

The phones were seized as part of something known as a search incident to arrest, a principle that allows the police to search a suspect for items such as weapons or evidence when they're taken into custody. Police don't require a warrant to seize such items, noted Wilson.

However, Wilson said the power to search a suspect during an arrest doesn't give police officers carte blanche to rifle through the contents of a phone or a computer.

"Because of the significant privacy interests in play, they have to go further and obtain a warrant if they want to do the full forensic analysis of the devices," he said.

Cross-country conundrum

Courts across the country have grappled with the question of when police should be permitted to search the contents of computers or smartphones, but it is a legal debate that has yet to be settled.

The Supreme Court of Canada ruled in a separate case last year that special authorization is needed to search computers and cellphones during the execution of a search warrant. That case involved searches of a location, such as a house, and didn't specifically address a search during an arrest.

The high court will hear another case this spring involving an Ontario man who was convicted after a robbery at a Toronto flea market. Police officers looked through Kevin Fearon's cellphone after he was arrested and found pictures of a gun and cash, as well as a text message about jewelry.

The Ontario Court of Appeal upheld Fearon's conviction, concluding that because his phone wasn't protected by a password, police were permitted to look through the device "in a cursory fashion" to see if there was evidence relevant to the crime.

Had they wanted to search the phone's contents in more detail, or if the phone had been protected by a password, the officers would have required a warrant to search it, the court ruled.

Still, the Ontario Appeal Court declined to craft a blanket rule to govern cellphone searches.

The Supreme Court of Canada is scheduled to hear arguments in Fearon's case in April.

The Law Society website now offers lawyers and members of the public a new service - the BC Lawyer Look-up. The look-up allows lawyers and members of the public to search for a current BC lawyer by name. Search results provide a lawyer's basic membership status information and, in the case of a practising lawyer, his or her business address and telephone number. This is the same information that the Law Society routinely provides in response to telephone enquiries and the look-up is an extension of that service.

The Law Society updates the website data daily. The look-up service is intended to be easy for the public and lawyers to use without assistance. However, it is still necessary to contact the Law Society office for information about a former member or to enquire about a lawyer's professional conduct record.

Practising lawyers are categorized as either "in private practice" or "not in private practice." These categories are based on insured/exempt codes on our Member Information System and are intended to help members of the public distinguish lawyers who are eligible to provide legal services from those who are not, although there will be exceptions depending on a lawyer's exact practice situation.

The contact information for non-practising and retired members is excluded from the service, as are email and fax numbers for all lawyers. While email and fax are common and useful means of contacting lawyers, they are also more amenable to misuse for commercial or marketing purposes. The Law Society Disclosure and Privacy Task Force and staff will consider this feature further, possibly posting email and fax numbers on a consent basis.

A B.C. woman stands to lose her home to her lawyer, who is moving to foreclose on her to pay his six-figure bill.

"My friends and family say this can't be happening. There's got to be a mistake," Dale Fotsch said.

Fotsch got into the predicament after being sued by her former common-law husband, even though she won the case and the court ordered him to pay her costs.

"I won, but I lost," Fotsch said. "I defended myself and now I'm losing my place."

Fotsch, 54, lives near Pemberton with her disabled son and earns a modest income. Her only asset is her home and the 12 hectares of land it sits on.

"I've worked two jobs, and I have for the last 25 years," Fotsch said. "When I was hit with this, it was just like a bomb went off in my life."

Case dragged on

A decade ago, her common law ex-husband Leigh Wilson went after Fotsch, trying to get a piece of her property after their breakup. The case took nine years to resolve, which was years longer than her lawyer had predicted, she said. 

"There was a three-week trial – three weeks! For my little place in the country. I mean, it just seems a little overboard and ridiculous," Fotsch said. "There were three tables of binders, with papers stacked sky high."

She said she had already paid thousands in legal fees when the case finally went to trial in 2007. As it advanced, her lawyer said he wouldn't continue unless she allowed him to secure a $100,000 mortgage against her property, at 18 per cent interest per year.

Vancouver divorce lawyer Jonas Dubas charges $300 an hour. His invoices to Fotsch include charges like $148.40 to simply call another lawyer and leave a voicemail message.

"Lots of people get a divorce. For some of them, it costs a little bit, but nothing like this. I mean, this is huge," Fotsch said.

When she finally won, in 2010, the B.C. Court of Appeal ordered Fotsch's former husband to pay her court costs. That would have covered at least part of her bill from Dubas — which, by then, had reached $90,000.

"When they said he was responsible for the costs, I thought that meant that he was going to pay them," Fotsch said.

$180,000 bill

However, her ex-husband has since declared bankruptcy, so he hasn't paid and she can't force him to. Meanwhile, her legal bill has mushroomed — with $88 a day in interest charges — and has now reached $180,000.

"I have a hard time sleeping at night. I'm one that keeps my bills paid. I've always paid my bills," Fotsch said.

She said her bank refused to lend her money to pay her lawyer's fees because she already has another mortgage. Dubas has hired his own lawyer who is taking steps to foreclose on Fotsch's home.

"I've done nothing wrong. What have I done wrong?" Fotsch said, choking up in tears.

"I've gone to court like they told me I had to, to save my place. And now the very person that I got to help me is taking it."

Fotsch said she realizes she is responsible for paying, but she said a legal system that would allow her to win her case then lose her home is perverse.

"I'm not bitter at anybody. I'm kind of bitter at myself for getting involved with this man in the first place," she said, referring to her ex-husband. "It has totally wrecked my life.

"But you know, we all make mistakes. It just seems like a big price to pay."

No comment from lawyer

Dubas told Go Public he could not speak on the record about the case, because Fotsch was his client.

But, he said, he deserves to get paid. Dubas also stressed that the mortgage arrangement was perfectly legal and his client agreed to it. He justified the high interest rate by saying other lawyers arrange financing for clients at rates over 20 per cent.

The Law Society of B.C., the governing body for the province's legal profession, would not comment on the case, but said that in general, what Dubas did is not against the rules.

"The law society's rules and regulations do not prohibit a lawyer from loaning money to a client or advancing money... but there are guidelines that should be followed," spokesperson Ben Hadaway said.

"A lawyer may not loan money to a client if the effect of loaning money is to give the lawyer an interest in the matter or impair the lawyer's professional judgment."

Fotsch hasn't filed a complaint with the law society because she's still hoping for a resolution. After her experience with this lawsuit, she said she would do anything to avoid ever having to go to court again.

"I would never go back in there again, not if my life depended on it, for anything. Nothing. What would be the point?"

Not alone

Halifax resident Lisa Finney said she, too, will never go to court again, after also winning her case but having nothing to show for it.

Finney sued her employer, LifeMates, for wrongful dismissal in 2006. After her father died, she alleged in her statement of claim, her boss Craig Gleason gave her no time off to grieve and then fired her.

When Gleason didn't show up in court, the judge ruled in Finney's favour and awarded her $10,000. Finney hired a paralegal to help her collect, but said it was futile.

"No matter what I did, they could find a way to avoid payment. There was always a way to avoid it. And I could put good money after bad," Finney said.

Gleason's bank refused to give her any information so she could seize money from his accounts. LifeMates is owned by a U.S. company, so it had no other assets in Canada for her to take.

"It's kind of a joke, really. We spend a lot of money in the court system. Going to court and putting these cases together. Employing a lot of people doing so," Finney said.

"And at the end of the day, if nothing comes of it, there's really no point. It's just a joke."

Billing debate

Advocates pushing for justice reform say cases like these — particularly the legal bills — are driving increasing numbers of people to represent themselves in court or avoid the courts altogether.

"Lawyers are quite simply priced out of most people's reach," said John Paul Boyd, a Vancouver lawyer with Access Pro-Bono, who gives free legal assistance to people in need.

It's a problem Supreme Court of Canada Chief Justice Beverley McLachlin has been raising for years, and it's led her to lament that access to justice is becoming a privilege of the rich.

Every year, the B.C. Court of Appeal flags the number of cases where people show up for court without a lawyer. In 2011, the number of unrepresented litigants had reached one-quarter of all cases.

Boyd said billing disputes like Fotsch's are indicative of a bigger problem that only lawyers can fix.

"Lawyers have priced ourselves beyond the reach of most people, and there appears to be nothing in the form of market forces that are correcting us in terms of the fees that we are able to charge," Boyd said.

A Canadian Lawyer magazine survey found 52 per cent of lawyers plan to raise their fees next year. Fotsch's lawyer, Dubas, said it's a myth that lawyers are making great money.

"People think lawyers are rich, but in fact there are firms that struggle to pay their bills," he said.

Fotsch said she hopes once her story goes public, Dubas will decide to negotiate a settlement with her — perhaps accepting a parcel of her land that is undeveloped.

"I can't lose my home," she said. "And I've appealed to his hopefully good side. But he's said no to everything and he won't listen to anything that I said."

VANCOUVER — Legal aid lawyers who have withdrawn services to protest what they say is a severely underfunded system donned their black robes outside provincial court in Vancouver, saying the B.C. government is failing to meet the needs of the province's most vulnerable citizens.

Members of the Trial Lawyers Association of BC, who stopped taking new cases on the weekend, said Monday that government funding for legal aid has remained the same for 23 years despite inflation and population growth.

As a result, two-thirds of people who cannot afford a lawyer are denied legal assistance, they said.

"Now, we have almost 95 per cent of people in our family courts unrepresented," said Birgit Eder with the association's legal aid action committee.

"Single moms cannot get a lawyer. They are expected to go up against former spouses who very often can afford to pay a lawyer. So one side has a lawyer because they have money, and the other side has to fumble through on their own because legal aid has no money for a lawyer for them."

Eder told reporters that roughly 40 per cent of people who are accused of criminal offences are forced to fend for themselves in court because they can't afford a lawyer.

She said the government currently provides $56 million a year for legal aid. The association is pushing for the government to increase that amount from a tax on lawyers' fees that was introduced in B.C. in the early 1990s.

Revenue from the tax, which generated about $150 million last year, was always meant to go solely towards legal aid, Eder said.

But Justice Minister Suzanne Anton refuted that claim.

"There is a general misunderstanding that provincial sales tax collected on legal services is being misdirected to general revenue," she said in a written statement.

"When the provincial sales tax was applied to legal services in B.C. in 1992, the government of the day did reference that the revenue from the tax would offset the escalating costs of legal aid. However, the tax was never designated to directly fund legal aid. The provincial sales tax collected on legal services is no different from any other good or taxable service. The revenue goes directly to government general revenues, which fund all ministries of government including the Ministry of Justice."

Anton said the government hiked the Legal Services Society's budget by $2 million this year, to $74.5 million.

Eder said some of that funding actually comes from the federal government.

New Democrat Attorney General critic Leonard Krog said the $74.5 million is nowhere near what the legal aid budget was more than a decade ago, when it was between $92 million and $93 million.

He criticized the Liberal government for aiming to cut expenditures at the expense of low-income British Columbians.

"When you've got two-thirds of the people who actually even apply are denied, that doesn't begin to address the issue of those who don't even bother to apply because they know there's no hope," he said. "If you're low income, your chances of getting legal aid the way we knew it in this province are very, very slim indeed."

Members of the Trial Lawyers Association are vowing to refuse all new cases until early August.

Eder said more action is planned for October unless the government increases funding, but Anton said the government will bring in lawyers from other areas if necessary to ensure essential legal services are available.

On a Friday afternoon in Vancouver's Victory Square park, a dozen or so tents, tables and booths are filled with lawyers in suits and ties listening to clients of many backgrounds, binders of documents at the handy. The park is filled with the quiet murmur of phrases such as "wrongful dismissal," "family court," "dispute resolution" and "small claims."

A row of chairs is half-full of people clutching paper tickets, waiting for their chance for counsel.

"The public needs to see that legal services are accessible to everyone in the community, and not just for those who can afford the large firms' fees of $500 an hour," said criminal defence lawyer Esther Kornfeld, as she prepared to see her next client in one tent.

Kornfeld is one of more than 100 lawyers across the province who are taking their free legal services to the streets this month.

Organizers of the Pro Bono Going Public events say the services are intended for low-income people who face barriers in dealing with their legal troubles. The events started in Vancouver's Downtown Eastside last week and will soon be available in four other B.C. cities: Surrey, Victoria, Kelowna and Kamloops.

For many of the lawyers involved, the events are intended to convey a deeper message for the provincial government. It's now been 12 years since major reductions were made to legal aid in B.C., starting with a dramatic 39 per cent between 2002 and 2004.

"Legal aid funding is very difficult to get in this province," said Martin Taylor, a former judge in the B.C. Court of Appeal throughout the 1980s and early '90s. "The government has a responsibility there, though what they should do is a matter of opinion. They should be making every effort to assist people in having access to resolution of their legal problems, just like having access to health care, unemployment and being able to survive in old age."

Organizer Jamie Maclaren said the "advice-a-thon" is a chance for lawyers to do their part in helping those without means access an often opaque and complex justice system.

"It's been underfunded for years and years," Maclaren, also executive director of the Access Pro Bono Society of B.C., said of legal aid. "We're trying to exert a bit of pressure, in an indirect way, to the provincial government to rise to the occasion and fund legal aid to the extent it ought to."

Restoring legal aid access to 2002 levels would require a $50-million-a-year injection, according to a 2011 report commissioned by Public Commission on Legal Aid, a project of the Canadian Bar Association, Law Society of B.C., Law Foundation of B.C., B.C. Crown Counsel Association and local bar associations.

Not sure of the options

One of several hundred clients seeking legal assistance identified herself as Swampy, a Cree and Mohawk woman who has been involved in the neighbourhood's latest tent city in Oppenheimer Park. The tent city sprang up earlier this summer in protest of increasing homelessness and substandard conditions in single resident occupancy hotels in the city.

Swampy came to Pro Bono Going Public on behalf of two tent city residents, both with disabilities, who had "suffered injustices in the system" but were not sure of their options.

"It's really important to be here today and get him some legal advice from a criminal lawyer," she said. "Quite a few of [homeless people] are illiterate, others can't see, they don't have money for the bus or cellphones. A lot of these people don't know they can get help if they are a victim -- it's fight or flight when they're getting attacked."

B.C.'s Justice Ministry denies the system is inaccessible, pointing to this year's $2-million boost in funding to the Legal Services Society, which administers legal aid in the province. That tops up provincial funding to nearly $75 million annually.

"Government recognizes the importance of supporting legal aid for low-income British Columbians," a spokeswoman who refused to be named said in an emailed statement. The additional $2 million, she said, is targeted at five new family and criminal justice pilot projects which aim to "increase access to high-quality, legal services" for those in need, she explained.

The spokeswoman pointed to Statistics Canada data from earlier this year suggesting that B.C.'s level of legal aid funding has kept pace with the Canadian average of roughly three per cent a year.

BC justice 'in a transitional phase': former judge

Lawyers like Kornfeld, however, say the government has repeatedly blown the opportunity to effectively fund access to justice. "We've been let down so many times by attorney generals that are very well aware of the situation of the courts and of legal aid lawyers," Kornfeld said.

She decried not only the loss of funding since 2002, but also the nearly $90-an-hour rate paid for legal aid lawyers. "Our costs are the same, whether or not we're billing out at $500 an hour or $89.90 an hour."

Former justice Taylor believes B.C. is "in a transitional phase" when it comes to access to the justice system, in spite of calls for restored legal aid funding. But when it comes to other ways to help people resolve their legal troubles, he sees a lot of hope.

B.C., for instance, is one of the only provinces to publish its court records and dockets online, unlike Ontario where only court dates are newly available but not documents.

"In the future, people will be able to get a lot more legal advice and a lot more help in settling their problems through electronic means -- the Internet," he said.

Such advancements will help people stay out of court, which can be time-consuming and stressful, he said. "The court is a last result for people who are unable to address their disputes in any other way."

Asked about any new initiatives on that front, the Justice Ministry spokeswoman said the province hopes to use new technologies to "connect clients to resources" and heighten access to legal advice.

"We believe that this will lead to a more accessible and sustainable justice system," she said. 

VANCOUVER — Lawyers who handle legal aid cases in British Columbia have put their protest on hold in an effort to get talks started with the new provincial justice minister after an 18-month deadlock.

"We're having a period of what I would call reconciliation," said longtime defence lawyer Phil Rankin.

British Columbia's trial lawyers began job action in January 2012, withdrawing their services as duty council, who normally represent people for first-time appearances or those without a lawyer.

The job action put more pressure on a provincial court system that has been mired in delays, resulting in several cases — from drunk driving to cocaine trafficking — being thrown out of court.

Rankin said the lawyers are no longer withdrawing their services.

"At this point, the executive is attempting to meet with the new attorney general to see if there is a more positive approach we can take and if that doesn't go anywhere, then I guess we will have to resort to what we've been doing for the last couple years," he said.

"There's always hope when you have a new (minister) in there that maybe they don't have a completely closed mind. The former attorney general ... it was pointless to talk to her, there was no point in talking to her at all. She was completely closed-minded."

Legal aid lawyers earn between $84 and $93 an hour, depending on experience.

Justice Minister Suzanne Anton issued a statement Friday saying she's looking forward to the meeting.

"I am sure that the association (has) strong views on a number of aspects of the justice reform agenda, including legal aid, and I would welcome the opportunity to hear from them directly," she said.

"Taxpayers are investing a total of $72.5 million in the Legal Services Society in 2013-14. We have committed to provide an additional $2 million next year to permit the society to test an expanded criminal duty counsel model in a pilot location as well as to expand family legal aid services in the province. We'll continue to look at how we can achieve better outcomes to ensure our justice system best serves the public."

However, Rankin bridled against what he called a common misconception.

In fact, he said the money spent on legal aid is not taxpayers' money. The trial lawyers argue the government has been collecting millions of dollars through a tax on lawyers' fees that was meant to fund legal aid, but instead, the money has gone into general revenue.

"The government is stealing ... approximately $100 million per year of tax money from private clients," Rankin said, arguing it would cost the government and taxpayers far less to properly fund the system than it does to make up for all the problems caused by the underfunding.

Rankin and other defence lawyers say the underfunding has meant dramatically slower court processes and has forced judge's to spend huge amounts of time sorting through cases where defendants are representing themselves because they can't afford to hire a lawyer.