Attacks on the conduct of opposing counsel, especially government lawyers, are mercifully extremely rare in Canada. The most dramatic reported case of an attack on the conduct of an adversarial lawyer involved Casey Hill, as he then was, who was involved as an Ontario Crown attorney in very serious litigation against the Church of Scientology. Following the 1984 attack on him in public on the steps of the courthouse by high profile lawyer Morris Manning who was then counsel for the Church of Scientology and who was wearing his gown and reading from notice of motion material, Mr. Hill was subsequently awarded $1.6 million in damages in a defamation action against the Church of Scientology and Morris Manning personally. This was the largest defamation award at the time in Canada and a very high profile Supreme Court of Canada case, frequently written about online and elsewhere. See Hill v. Church of Scientology of Toronto  2 SCR 1130, 1995 CanLII 59 (SCC). Mr. Hill went on to be appointed in 1995 as a Judge of the Ontario Superior Court. I am not comparing Blacklock’s and its new counsel’s attack with that of Scientology and Manning against Casey Hill, either factually or legally. I’m merely making the point that any attack on the professional conduct of an adversary’s counsel, and particularly a government counsel, is very rare and can, when appropriate and depending on the circumstances, have extremely costly consequences for the party making the allegations and even the counsel advancing them.
In this regard, the Justice lawyer who spoke to the legal issues – Sarah Sherhols - looked carefully at the meaning of “access control” and provided a very useful American case – namely L.M.S. Inquiry v Berkshire 307 F. Supp. 2d 521 The gist of the argument would seem to be that there has been no “circumvention” in the current cases. No locks were broken, picked, or hacked. The keys to the alleged locks – namely the passwords – were supplied by Blacklock’s. Whether or not there was breach of contract, or even copyright infringement – notwithstanding Judge Barnes clear ruling on fair dealing – this was very arguably NOT “circumvention”. American law is clear on this point. She pointed out how the Nintendo decision was useful in one respect in terms of a definition – but that the precedential value of that decision is very is limited by the circumstances in which it was rendered, which was not much different than a default proceeding. I have discussed the precedential value – or lack thereof – of the Nintendo decision at length on my blog It is an interesting coincidence that the law firm that failed to provide final defence arguments in the Nintendo case is the same firm now representing Blacklock’s.
Very interestingly, I’m reliably informed that, following the morning submissions, additional security was added in the courtroom in the form of an armed RCMP officer. This is extremely unusual in these types of hearings.
It is interesting to recall the Justice Barnes’s words in his costs judgment (upheld by the Federal Court of Appeal in a ruling from the Bench linked to and discussed here in the only Federal Court trial to date in the litany of litigation: