April 20, 2016

MEMBER SPOTLIGHT: An Interview with John Gregory

John Gregory is a reminder of the amazing terrain that opens up for someone with a law degree. He’s the man behind a variety of laws of Ontario and Canada. As General Counsel in the Justice Policy Development Branch, Policy Division, Ministry of the Attorney General (Ontario), Gregory has worked on the Uniform Electronic Commerce Act and the Uniform Electronic Evidence Act, both widely adopted in Canada. He’s provided policy support for defamation law, family arbitration amendments and Strategic Litigation Against Public Participation (SLAPP). The list goes on.

He’s particularly fascinated by the intersection between law and technology and writes a regular column for the collective law blog, Slaw.ca, and most recently has been thinking about voice recognition and the law.

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What inspired you to become a lawyer?

I graduated from undergraduate with a degree in political economy and did not immediately want to go off to law school. On the other hand, about 20 percent of my classmates did, so I suppose it was in the air. My father was a lawyer, but he didn’t put any pressure on me. I had a summer job once – not employed as a lawyer but both my employer and the other person working on the job were lawyers. I found the experience of working with them and the kinds of things they were thinking about very attractive. So I applied and got in, and I actually quite liked law school. I was at the University of Toronto for undergrad, and then I took three years off between undergrad and law school, but I was at the University of Toronto again for law.

After graduating, you clerked for the Chief Justice of Canada?

In Canada, after you get a law degree, you spend a certain time in the “under articles,” as they call it. Basically, it’s a year-long apprenticeship. I did that and then went off to clerk. One of my law professors suggested that I apply for the clerkship and I was accepted. It was a great year. It was interesting to see the interaction between the law as fairly high principle and the law’s effect on people. The other law clerks were very interesting people, a couple of whom are now judges.

Did you consider applying for a judgeship?

No. I would hate to have to deal with the kinds of things that go on in a courtroom, and I wasn’t invited to be an appellate judge. I certainly like what I do. I like the freedom that I have, and, quite frankly, I don’t mind the obscurity. If you’re a judge, you’re there on a firing range, which is perfectly appropriate for that job.

After that, you went on to practice commercial law in Toronto. Is there a highlight from this time?

I had some interesting clients. I had a scholarship trust fund that was offering savings plans for parents to build up money for their students. This was before the Income Tax Act was amended to set up what we now have, the Registered Educational Scholarship Plan, which you can contribute to and build up your money tax free. I did some work for charities, partly as a volunteer, but some came as clients. Doing work for charitable organizations was interesting largely because they’re all so different.

In 1995, you became counsel of the Justice Policy Development Branch, which is where you are now, as general counsel. What was the most surprising thing about the transition from the corporate world to the government world?

In my present job, I am doing legal policy and legislative policy, so there is quite a breadth and depth of thinking about the law and what law should be doing, and where it should be going. It’s less focused on specific clients’ problems than in private practice.

My job is with the legislative program of the attorney general who is like a minister of justice. The attorney general is responsible for about 20 percent of the Ontario statutes. So if any of the statutes come up for amendment, or if a new statute needs to be developed, and it’s in the areas covered by the attorney general’s responsibility, then we get to think about them. We deal with stakeholders. We deal with politicians and try to push the statutes forward.

We are in a parliamentary system here, which means that government bills tend to pass and private bills, bills brought by the individual members of the legislature, tend not to. The government bills are developed by public servants like me and professionally drafted by another group of professional public servants. It’s a different system from most U.S. legislatures, but it’s certainly interesting work. At times, as lawyers, we tend to do things that require legal analysis and legal opinions as well, and we write our own legal opinions on the policy that we’re proposing. 

You served on the Attorney General’s Advisory Panel on Strategic Litigation against Public Participation called SLAPP. Can you talk about it and what you did on this panel?

That was a very, very interesting file that went on over several years. We had had some issues in Ontario about SLAPPS, which are abusive lawsuits. I had done some work on the topic with the Uniform Law Conference of Canada, which is a similar organization to the Uniform Law Commission in the United States, that deals with harmonizing legislation among the provinces and territories. Later, the ministry put together an advisory panel, which included a defendants’ lawyer and a plaintiffs’ lawyer and as chair, we had the dean of the University of Toronto faculty of law, who was an expert both on tort law and on free speech. What I did with a couple of my colleagues is prepare support material, do research and analysis and review other statutes. The panel eventually submitted its report to the government, with a series of 25 recommendations. After that, we began working on a draft statute. It was eventually introduced and it passed. 

You also helped developed the current legislation for public accounting. What was the problem that you set out to address? How was it addressed?

That was a file that started because we had three major accounting bodies, which is unusual. In the United States, basically everybody who does public accounting is a CPA. Here, we had three bodies that were all well- established. First, the chartered accountants, who were the oldest and who had a practical monopoly on public accounting, which is the only part of the accounting business that’s regulated. You need a license for it. We also had certified general accountants and certified management accountants, both of whom wanted to get public accounting licenses for their members. The way the system was set up, they essentially couldn’t. There was political agitation over the years about that. Around 2002, the government decided to do something about this. The dean of the University of Toronto faculty of law, a predecessor of the dean on the SLAPP panel, wrote a report, recommending a reformulation of the way public accounting is regulated. My job was to take that and turn it into legislation. We set up a body to make the new standards and the three accounting bodies eventually met them. All of this took eight to ten years. After that, the three bodies decided to merge. So my project now is to write legislation to confirm the merger of the three of them, since they’re not fighting each other anymore. 

You’ve also tackled the legal implications of electronic communication and you led the working groups that created the Uniform Electronic Commerce Act and the Uniform Electronic Evidence Act. What were the problems that these two groups set out to address? And what were the results?

I like to describe the problem as: what happens to the law when you take the paper away? Law is a very paper intensive activity, at least it was in early 1990s when I got into this file. I took that general question to the Uniform Law Conference and said, “We should be doing some work in this area, and what we should start with is evidence because where the rubber hits the road is the legal enforceability.” 

We had a very small working group, only three people. There was a federal prosecutor who taught the law of evidence, and a woman who was very active in the United Nations’ work on developing standards for the use of electronic commerce, and me. We worked together for a couple of years and we did a lot of consultation of the bar, both the litigation bar who are putting evidence in the courtroom, and the business bar who have the clients who wanted to go electronic. Over time, we developed the Uniform Act that passed in 1998 and is now in force in six provinces, plus federally. 

Then on electronic commerce, we were very much influenced by the United Nations Model Law on electronic commerce. In fact, I had worked with the federal government person who was a Canadian delegate to the United Nations working group. I was at the American Uniform Law Commission meeting in San Antonio, when they decided to do what became the Uniform Electronic Transactions Act. So I went back from that meeting to our meeting, that is the Canadian Uniform Law group, and said, “We need to be doing this, too.” We worked closely with the U.S. group to develop compatible laws for each country. 

You’ve had a lot of working groups. What makes the working groups successful?

I’m not sure that there is a rule. I’ve had good people on many of my groups. One may or may not have any control on who’s on your working group. The chair of the group has to maintain a good timetable and has to do a fair amount of work, and also find tasks that are suitable for the individual members. 

You have a regular technology column for a law blog SLAW, slaw.ca. Why has technology captured your interest?

My interest in technology is largely electronic communications technology. You have the same legal questions from 40 years ago, but the answers keep changing. There is so much variety, so many things coming down the pipe or out of left field at you that change the deal. 

Some of the time, the answer is, in fact, the laws are pretty adaptable and can work without legislative amendment. But private law is an area that is constantly scrambling to figure out how it can apply to all the technological capacities there are these days. 

You wrote a recent column about the implications of voice recognition. I found that fascinating. What are the legal issues that encompass this technology?

The column was on the Hello Barbie talking doll that basically takes what the kids says to the doll and loads it up into a massive computer that has all sorts of conversational gambits and responses, and then it appears to be talking with the kid. That raises security questions. That raises privacy questions. Who is getting this database? What are they using the kids’ information for? What are the kids sayings about their parents and about their life that some computers somewhere in the cloud know about? 

In other areas of voice recognition, you get interesting questions, too. Can I sign something by leaving a voice message saying, “Hi, it’s John.” In which case there are questions of authentication: was that my voice? Was it not my voice? It’s a recording. Can it be altered in a way that would be harder to do if it were my signature on ink on paper? These days, you’re getting used to talking to your computer and having your computer talk back to you. What happens if Siri produces two tickets to the wrong movie? Or what happens if it’s right, but it’s the wrong price, et cetera? Three or five years ago, we weren’t thinking about this. 

How do you get your ideas for your column?

They come from just about anywhere. I have a number of newsfeeds coming across my computer screen every day. I’ve also been very willing to draw on what I hear from the ABA Cyberspace Committee and Business Law. Cyberspace has a winter working meeting at the end of January, where they hold a lot of exploratory discussions. I’ve also got a couple of columns from the annual meeting. I did a column on the law of drones, a subject talked about at the annual meeting in Chicago a couple of years ago. 

What new technology is coming down the pipeline that you see major or legal implication?

Voice recognition is one. I think the law practice technology is another. If IBM puts Watson to work as a lawyer, what’s that going to do to the average law firm and its hordes of researchers and juniors? 

You mentioned the ABA. What has been the value of your involvement with the ABA?

I’ve been very happy to be in it. Just keeping in touch with what’s going on, being with people who are at the cutting edge, being with people who are having fun exploring all of this stuff. It has been extremely valuable for the collegiality, and for pushing the limits of ideas. 

Thank you so much!