An item noted by Susannah Tredewell on the VALL website, CANSIM data has been made available free of charge by StatsCan under the Statistics Canada Open Licence Agreement.

CANSIM is Statistics Canada's key socioeconomic database, receives periodic updates daily to its various tables, and "provides fast and easy access to a large range of the latest statistics available in Canada."

They've also added a screencast video tutorial, which would have been a nice addition to the 4 videos StatsCan currently has on its Youtube channel. It seems rather odd, I must say, when an organization's youtube channel is used exclusively for marketing fodder, and isn't made available to showcase a core product — like, say, a newly available free statistics collection.

Too bad. An embed code to would have come in handy, and would have allowed me to share the tutorial video here on Slaw.

The Canadian Association of Law Libraries (CALL) is accepting nominations for this year's Hugh Lawford Award for Excellence in Legal Publishing.

It honours a publisher (whether for-profit or not-for profit, corporate or non-corporate) that has demonstrated excellence by publishing a work, series, website or e-product that makes a significant contribution to legal research and scholarship.

Slaw.ca won the award in 2009 (yay team!).

Members as well as non-members of CALL can make nominations. Criteria are explained on the Award website (see link in first sentence).

Members of the Award Selection Committee set up to choose the lucky winner are:

• Justice Eric (Rick) Libman, Ontario Court of Justice
• John Davis, Professor Emeritus, Osgoode Hall Law School
• Michael Decore, Manager of Information Resources and Access, Alberta Law Libraries,
• George Tsiakos, Library Manager, Bull, Houser, Tupper, Vancouver.

The Committee is chaired by CALL Past President, Rosalie Fox, who runs the library and information management branch at the Supreme Court of Canada.

The award, established by CALL in 1999, was renamed to honour Hugh Lawford (1933-2009), Professor of Law at Queens’ University and the founder of Quicklaw.

The deadline for nominations is March 23, 2012. To make a nomination, please contact: Rosalie Fox, Director, Library and Information Management, Supreme Court of Canada at Rosalie.fox [at] scc-csc.gc.ca

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 57 comments. You might be particularly interested in these:

• The 8 comments on Edward Prutschi's post, "Crime & Punishment in 2012"
• The erudite, not to say abstruse, renewed comments on Shaunna Mireau's post, "Queen's Counsel Appointments"

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

• Tuesday: Technology: Use join.me to Get on the Same Page Across the Web
• Wednesday: Research: Open Access Journals
• Thursday: Practice: Top 10 Financial Errors: #9 Avoid Having a Written Office-Sharing or Partnership Agreement

You’ll find a brief excerpt of this week’s tips on Slaw, but the links above will take you to the full versions, along with 100 more tips. Advice you can use — short and to the point — every Tuesday, Wednesday & Thursday.

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email. You can also follow SlawTips on Twitter: @slawtips

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

• McGowan v. Bank of Nova Scotia 2011 PECA 20 [Banking, negligence]
• Jones v. Tsige 2012 ONCA 32 [New causes of action]
• Canadian Society of Immigration Consultants v. Canada (Minister of Citizenship and Immigration) 2011 FC 1435 [Immigration consultants]
• R. v. Benson (A.J.) 2012 SKCA 4 [Child pornography]

Thus far, 204 summaries in total are available on cases.slaw.ca. You can subscribe to MLB-Slaw Selected Case Summaries via RSS or email.

An interesting decision came out in the twilight of 2011. The Vancouver Sun v. British Columbia,2011 BCSC 1736 is worth a look not only because it is the first of what is likely to be many cases adjudicating fallout from last year's Stanley Cup riot in Vancouver, but also for its utilization of production orders to get useful information from third parties unrelated to the criminal events under investigation. As upcoming lawful access legislation is expected to create a number of new production orders (largely focused on acquiring telecommunications data from third parties), this case may provide a window into what is to come.

Vancouver Sun involves a challenge issued by a number of news organizations regarding a set of ex parte production orders forcing a number of news organizations to hand over any footage taken on the day of the hockey riots and within a designated geographic area. The photos themselves were sought by police to aid them in their ongoing efforts to identify all miscreants involved in the sadly destructive and at times violent riot that followed the Vancouver Canuck's tragic exit from the Stanley Cup finals last summer.

The media groups challenged the production order on a number of grounds, claiming the order was too broad in scope and seeking an exemption from compliance with the order as issued or, in the alternative, that the order be quashed.

The production order provisions currently in the Criminal Code include a provision permitting third parties to apply for an exemption from the scope of the order production would be "unreasonable" (CC s. 487.015(b)). The media organizations sought an exemption on the grounds that the orders were "premature, overly broad and capture vast amounts of material not relevant to any crime; that they fail to account for the special position of journalists requiring proof of true necessity and absence of alternate sources" (para 21).

The court rejected these grounds, citing Tele-Mobile Co. v. Ontario, 2008 SCC 12 in its conclusion that the 'unreasonableness' referred to in the exemption clause is limited to considerations of practical impact, cost of compliance, etc. Substantive factors going to the validity of the order cannot contribute to 'unreasonableness' under s. 487.015(b).

This meant the substantive concerns with the ex parte order would be considered under the Garofoli standard: based on the record before the authorizing judge, could that justice, acting judiciously, have granted the order.

The standard employed in production orders at issue is one of 'reasonable grounds to believe the data sought will afford evidence respecting the commission of an offence'. This is higher than the 'reasonable ground to suspect information will assist an investigation' standard that will feature in a number of the new proposed lawful access orders.

The applicants in Vancouver Sun argued the production orders failed to meet this standard because much of the material sought will not disclose evidence of criminal activities. The footage was recorded "within a large area of downtown before and after the riot…the [production order] does not adequately connect the specific images recorded to the offences committed." While there are certainly images of offences being committed within the materials at issue, much of the footage relates to innocent activity. So untargeted an order is essentially a fishing expedition.

While the production orders were eventually rejected on a technicality, Justice Harris rejected the majority of these overbreadth arguments. The question is not whether all the material sought will provide evidence of individuals actually committing offences (para. 46). Rather, the test is one of whether there are grounds to believe:

"the material sought would, not just taken by itself but in relation to other things, afford evidence with respect to the commission of at least some of the specified offences." (para 48 quoting CBC v. British Columbia, [1994] 32 CR (4th) 256 (B.C. S.C.))

What this means is that photos that are not directly linked to any criminal incident, but rather show people in the general vicinity during the general time window of the riot (give or take) are within scope because it is "relevant to the issue of identification of those involved in committing offences, even where the image…is captured in a different place from where the offence was committed." (para. 39)

Presumably, the images collected will feed the VPD's growing image-fuelled riot investigation apparatus which currently includes a 'tag your friends' website and, apparently, the use of facial recognition techniques built in to ICBC's biometric-enabled drivers license database.

While section 8 of the Charter was not raised, this was a case of statutory interpretation alone. Given that the images were taken in public, one wonders whether a reasonable expectation of privacy could have been asserted by any of those included in the extensive footage covered by the production orders. Recent case law from the U.S. suggests that extensive public surveillance might trigger constitutional protections, even where this is not otherwise the case (see US v. Jones … ). The need to show no more than a tangential connection between the images (and the people in them) on the one hand, and any actual offences on the other might be a cause of concern.

Justice Harris recognizes this. He states in his judgement that he was initially "concerned by both the geographic and temporal scope of the production orders" (para 52) in light of the time and location of actual offences, and that the request "struck [him] as broad." Unfortunately, there was not enough to second guess the Justice of the Peace who initially issued the orders. As production orders are almost always ex parte, these types of deficiencies in breadth of review are likely to recur.

More troubling is the impending application of these types of production orders to a wide range of Internet and mobile data, including tracking (GPS) data and interaction (transmission) data. Not only do these new types of production orders afford access to vast and potentially very sensitive types of data, but they will be available, via production order, at a significantly lower standard than that employed above. Police need only demonstrate a 'reasonable suspicion' that the material sought "will assist" in an investigation. Working backwards "somewhat broad" orders approved on ex parte application in Vancouver Sun. We may be moving closer to those 'fishing expeditions' our system of constitutional and legislative safeguards are intended to avoid.

Slaw is pleased to let you know that three new columnists have joined us. They'll be coming on line over the course of the next months, in the order in which their brief bios appear here:

Kevin O'Keefe, as you'll likely know, is the CEO and founder of LexBlog. He was a trial lawyer in Wisconsin for 17 years and remains a sustaining member of the the Association of Trial Lawyers of America, and he has served as a vice president of business development for Martindale-Hubbell. LexBlog is that mighty platform that enables thousands of lawyers in the US to blog successfully, proving, in the words of Kevin's own blog, that Real Lawyers [do indeed] Have Blogs.

Kevin's first column will appear next month.

Sam Muller is the founding director of the Hague Institute for the Internationalisation of Law, appointed in January 2005. Before that, he worked at the International Criminal Court (ICC) where he was Special Adviser to the Registrar on External Relations, after having been interim Deputy Director of the Common Services Division and Acting Director of the Public Information and Documentation Section of the Registry. He holds a law degree and a doctorate from Leiden University. He has published and spoken extensively on various topics, focusing mainly on the law of international organizations and international justice issues. Among many positions, he is founder of the Law of the Future Forum, co-founder of Innovating Justice, and a member of the Global Action Council on Rule of Law of the World Economic Forum.

Sam's first column will appear in the spring.

Judith Gaskell is the recently retired Librarian of the Supreme Court of the United States. She has her graduate library degree from the University of Chicago and her law degree from DePaul University College of Law. In 2003, Judy became the 10th librarian of the US Supreme Court, and the third woman to hold the position. Prior to that she was for 20 years the director of DePaul's Rinn Law Library.

Judy's first column will appear in the fall.

This morning in a brief decision Canada's top court ruled in a Reference that Internet service providers are not bound by the CRTC's broadcast regulations

The judgment is so brief we quote it in full:

APPEAL from a judgment of the Federal Court of Appeal (Noël, Nadon and Dawson JJ.A.), 2010 FCA 178, 322 D.L.R. (4th) 337, 404 N.R. 305, [2010] F.C.J. No. 849 (QL), 2010 CarswellNat 2092, in the matter of a reference brought by the Canadian Radio‑Television and Telecommunications Commission regarding the Broadcasting Act. Appeal dismissed.

The following is the judgment delivered by

The Court —

[1] In a 1999 report, the Canadian Radio-television and Telecommunications Commission (“CRTC”) concluded that the term “broadcasting” in s. 2(1) of the Broadcasting Act, S.C. 1991, c. 11, included programs transmitted to end-users over the Internet. At that time, the CRTC concluded that it was not necessary to regulate broadcasting undertakings that provided broadcasting services through the Internet. It exempted these “new media broadcasting undertakings” from the requirements of the Broadcasting Act. In 2008, after public hearings, the CRTC revisited this exemption. One of the issues raised was whether Internet service providers – ISPs – were subject to the Broadcasting Act when they provided end-users with access to broadcasting through the Internet. The CRTC opted to send this issue to the Federal Court of Appeal for determination on a reference (2010 FCA 178, 322 D.L.R. (4th) 339). The specific reference question was:

Do retail Internet service providers (“ISPs”) carry on, in whole or in part, “broadcasting undertakings” subject to the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users?

[2] ISPs provide routers and other infrastructure that enable their subscribers to access content and services made available on the Internet. This includes access to audio and audiovisual programs developed by content providers. Content providers depend on the ISPs’ services for Internet delivery of their content to end-users. The ISPs, acting solely in that capacity, do not select or originate programming or package programming services. Noël J.A. held that ISPs, acting solely in that capacity, do not carry on “broadcasting undertakings”.

[3] We agree with Noël J.A., for the reasons he gave, that the terms “broadcasting” and “broadcasting undertaking”, interpreted in the context of the language and purposes of the Broadcasting Act, are not meant to capture entities which merely provide the mode of transmission.

[4] Section 2 of the Broadcasting Act defines “broadcasting” as “any transmission of programs … by radio waves or other means of telecommunication for reception by the public”. The Act makes it clear that “broadcasting undertakings” are assumed to have some measure of control over programming. Section 2(3) states that the Act “shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings”. Further, the policy objectives listed under s. 3(1) of the Act focus on content, such as the cultural enrichment of Canada, the promotion of Canadian content, establishing a high standard for original programming, and ensuring that programming is diverse.

[5] An ISP does not engage with these policy objectives when it is merely providing the mode of transmission. ISPs provide Internet access to end-users. When providing access to the Internet, which is the only function of ISPs placed in issue by the reference question, they take no part in the selection, origination, or packaging of content. We agree with Noël J.A. that the term “broadcasting undertaking” does not contemplate an entity with no role to play in contributing to the Broadcasting Act’s policy objectives.

[6] This interpretation of “broadcasting undertaking” is consistent with Electric Despatch Co. of Toronto v. Bell Telephone Co. of Canada (1891), 20 S.C.R. 83. In Electric Despatch, the Court had to interpret the term “transmit” in an exclusivity contract relating to messenger orders. Like the ISPs in this case, Bell Telephone had no knowledge or control over the nature of the communication being passed over its wires. This Court had to determine whether the term “transmit” implicated an entity who merely provided the mode of transmission. The Court concluded that only the actual sender of the message could be said to “transmit” it, at p. 91:

It is the person who breathes into the instrument the message which is transmitted along the wires who alone can be said to be the person who "transmits" the message. The owners of the telephone wires, who are utterly ignorant of the nature of the message intended to be sent, cannot be said … to transmit a message of the purport of which they are ignorant. [Emphasis added]

[7] This Court relied on Electric Despatch in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427, a proceeding under the Copyright Act, R.S.C. 1985, c. C-42, to conclude that since ISPs merely act as a conduit for information provided by others, they could not themselves be held to communicate the information.

[8] The appellants in this case argued that we should instead follow Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141. In Capital Cities, decided under a 1968 version of the Broadcasting Act, the CRTC had amended Rogers Cable’s licence, allowing Rogers to delete and substitute the television advertisements in the American broadcasts it received before it distributed the broadcast to viewers. The American broadcasting stations argued that the Broadcasting Act was ultra vires Parliament since it purported to regulate systems situated wholly within provincial boundaries. As part of this argument, the American stations attempted to sever the function of receiving television signals from the distribution or retransmission of those signals within a particular province. The Court rejected this severance of reception and distribution, stating that it was a “single system” coming under federal jurisdiction. The appellants argue before this Court that ISPs similarly form part of a single broadcasting system that is subject to regulation under the Broadcasting Act.

[9] Like Noël J.A., we are not convinced that Capital Cities assists the appellants. The case concerned Rogers Cable’s ability to delete and substitute advertising from American television signals. There was no questioning in Capital Cities of the fact that the cable television companies had control over content. ISPs have no such ability to control the content of programming over the Internet.

[10] Contrary to the submissions of the appellants, we need not decide whether the fact that ISPs use “routers” prevents them from being characterized as telecommunications common carriers. Noël J.A. was not asked to decide whether ISPs are a “telecommunications common carrier” under the Telecommunications Act, S.C. 1993, c. 38. Nor, based on the record before us, do we feel it appropriate for us to do so.

[11] We therefore agree with Noël J.A.’s answer to the reference question, namely, that ISPs do not carry on “broadcasting undertakings” under the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users. We would therefore dismiss the appeal with costs.

At a press conference on February 6, 2012, Steve Woodworth, backbench Conservative MP for Kitchener Centre stated that he tabled a motion in Parliament calling for the creation of a special committee to study medical and scientific evidence about when a child can be considered a human being separate from the mother. He also wants that committee to examine the legal impact of denying full human rights to an unborn child and provide options to update the law.

Woodworth expects his motion to get an hour of debate in March and another hour in June.

As stated in my previous post on the topic, it seems as though Woodworth is taking an indirect approach to reopening the abortion debate, and many agree.

In question period, however, Justice Minister Rob Nicholson responded to Woodworth’s motion and questions from the opposition about reopening the debate on abortion:

Private Members’ motions are considered in accordance with the rules of Parliament. The Prime Minister has been very clear; our Government will not reopen this debate.

Even if the Prime Minister and the government do not want to reopen the debate on abortion, even if this motion is going nowhere, Woodworth’s actions are bringing the debate back into the public eye! It is a thought provoker, and it is making people think and the media talk about the law that defines a human being (section 223 of Canada’s Criminal Code), about the state of abortion and about whether that should change.

Regardless of any new science on the topic of when life begins, the issues of access to abortion and the human rights of unborn children remain inherently political. If we confer a right on an unborn child, we must also remove a right from the woman carrying that child. Some believe this trade-off is worth it. Others do not. Until we solve this dilemma, we are unlikely to reach a fully satisfactory conclusion on the issues at hand.

It will be interesting what further discussion comes out of the hour long debates set for March and June and eventual vote. And to see what Harper will do next to stop any and all discussion on the motion before it goes too far.

John is bored. His firm just hasn't been busy this month and instead of the usual big transaction work all he has are small bits and pieces of corporate matters. Even though none of it is complicated he just can't get down to doing any of it and is wasting time surfing the net instead.

Terry is deadline driven. Every day is about putting out fires and meeting last minute deadlines. He knows he should plan ahead and get to his projects done before the last minute but he has gotten use to the adrenaline rush and just can't get motivated to do anything without the pressure of a short deadline.

What do John and Terry have in common? They are both procrastinators.

As a coach one of the number one questions I receive from lawyers is about how to deal with procrastination. A friend recently introduced me to a useful resource, Dr. Piers Steel's book "The Procrastination Equation." Dr. Steel's book offers an unflinching look at why people procrastinate, types of procrastinators and easily actionable tips for reducing procrastination in your professional and personal life.

What is procrastination? Procrastination is not taking action on something when you know very well that inaction has potentially harmful circumstances.

It helps to know what kind of procrastinator you are. If you are like John you might be easily distracted. You find it hard to take action on things that are not inherently valuable to you or are not pleasurable. For instance, boring or repetitious tasks might be really hard for you to take action on when there are more interesting things to do.

If you are like Terry you might be impulsive. You are more likely to seek immediate then delayed gratification. In terms of work you find it easy to focus on anything that requires immediate attention but have a hard time with longer time lines. The result is that your habitual choice to do what is urgent and ignore the rest means that you are caught in a cycle of putting out fires and last minute work.

There is a third type of procrastinator with low expectations who I will call Mary. Mary lacks confidence in herself and has learned to expect failure. She procrastinates on projects that she fears she may not succeed at, or follow through on. Mary was given a gym membership for her birthday but doesn't go because she knows she has never managed to establish a regular physical fitness routine and thinks working out just once in a while has no value so "why start?"

Do any of the above scenarios sound familiar? If so let me assure you that you are not alone. According to Steel about 95% of people are self-confessed procrastinators. I am also a procrastinator. This article will be submitted one day late because I didn't schedule it in my calendar early enough and focused on my many other deadlines instead.

What are we procrastinators to do? The good news is there is a lot we can do. As a coach I have made great strides in curbing my inner sloth and so can you. First, identify what kind of procrastinator you are, then implement some of the tips from the list below. The goal is not perfection but simply reduction. Try and start by reducing procrastination in either your personal or professional life by 25% and then build from there. For a comprehensive list of procrastination-busting strategies pick up a copy of Dr. Steel's book and prioritize reading it. (As I type this I am thinking to myself that there are a number of procrastinators out there who will buy the book and never get to reading it!)

Top tips for curbing your inner procrastinator:

• Make your workspace a zone for focused concentration. Eliminate the distractions. One of the worst distractions is a messy office. Take advantage of the periods of low energy and concentration that arise during the day to organize and tidy your space. Just 15 minutes a day can make an enormous difference.
• Use your computer at the office for your professional work exclusively. Do your web surfing and personal email on another device and preferably in a different space. Consider buying an IPAD or Netbook for personal use instead of your office computer.
• Turn off all the computer distractions – the audio alerts and mailbox pop-ups. Dr. Steel's research indicates that professionals are 10% more effective with these alerts disabled.
• Bring visual cues for focusing your attention into the office. For example if you want to be productive during the day so you can get home to walk your dog then put a photo of your beloved pooch on your desk where you can see it.
• Reserve your morning and mid-day peak performance hours for your most difficult tasks.
• Break up distant deadlines into a series of milestones. Schedule time for working on these milestones instead of waiting until the last minute to start on the project as a whole.
• Work in focused intense sessions of 30 to 90 minutes without checking email and handle email in scheduled blocks of time.
• Talk to your client. If you have a client file with dust on it that is keeping you up a night then immediately after reading this article prepare what you want to tell the client about it, pick up the phone and call them. Tell them when they can expect to have a response from you. Apologize for the delay. I have many clients who have made these dreaded phone calls and the results have been positive.
• Keep a to-do list and review it daily. Take just a few minutes to set your goals for the day. Get one thing you are procrastinating about on the list and done.
• Deal with the dog file first. As a former litigation partner now a judge once told me, each day do the piece of work you like least first. Get it out of the way before you go on to other more interesting matters.
• Break complex projects into concrete next steps and set up milestones to work towards rather than simply working with one final deadline. For example, if you have a presentation to prepare, set a goal for developing the outline by a certain date. Then set a goal to have the handouts prepared by a particular date. Finally set a goal to have the PowerPoint completed and all materials sent in a week prior to the event.
• What gets scheduled most often gets done. Schedule time for tasks you are procrastinating on.
• Establish a routine of doing certain tasks at a certain time of day. Start the day with a coffee and review of your task list and goals for the day. If you want to build a habit of going to the gym schedule a set time and days of the week to go.
• When you feel stuck identify the biggest task you are procrastinating on. Then think of some other tangential tasks you are also procrastinating about. Trade off by taking action on the one you will find most enjoyable. In some cases this will mean taking 15 minutes to tackle tidying your office.

Here is what Justice Corbett of the Ontario Superior Court of Justice had to say recently in Sri Guru Nanak Sikh Centre Brampton v. Dhadda,

[1] It is not open to anyone involved in the plaintiff to dispense with the law because they think they are wise and know what is best. “Tradition” is not a basis for ignoring the law.

…

[4] The plaintiff has a long sad history of conflict. And this just has to stop. It is an embarrassment: the plaintiff is an important religious, social and cultural institution. The conflicts have been riotous, often petty, and are concerned with issues of control, and not the high-minded principles cited as justifications for this lawless behaviour.

[5] Snowie J. stated, roughly ten years ago: a “more business-like approach” to managing the affairs of the plaintiff would be in everyone’s best interests. Methinks Her Honour spoke too softly. No doubt she was moved by the fact that this is a religious and charitable institution, and the members and directors are unpaid volunteers. Apparently her message did not get through to everyone.

…

[11] Some of the defendants have engaged in gross misconduct in the conduct of this litigation. For them apparently, the ends justify the means. It is offensive that some defendants should perjure themselves so blatantly in their evidence. The ends do notjustify the means. Through their misconduct, these defendants have, in the end, only discredited themselves.

[12] Litigation is not some childish game. It is serious process of conflict resolution. It is not acceptable to lie under oath or to falsify documents to try to win a lawsuit for control of a temple.

[13] I understand that these are emotional issues for the parties. Some of the defendants have played key roles in founding and building the plaintiff. Together with some of the plaintiffs, they have built a wonderful and vibrant institution. But they do not own it. And these defendants’ past good deeds and leadership do not justify their misconduct.

With an opening like that, you know the facts have to be juicy. And they are, if not also complex and convoluted, and filled with an emotion.

But there are also some general principles of advocacy worth gleaning from the judgement too,

[290] A factum is written argument. That does not leave it open to deliver a written polemic. There should be a “facts” section of the factum, that underpins the argument. It is currently popular to blend facts and arguments. In my view, when this is done properly, it makes it easier to grasp the argument and evaluate the arguments. Where, as here, the recitation of the facts is the argument, and is not referenced to the evidence, the factum fails in its task to persuade. It creates suspicion in the mind of the judge. And so every controversial statement of fact must be checked to ensure its accuracy.

[291] Conclusions, or inferences, are of no value when stated baldly.

[292] Good advocacy is not the presentation of conclusions of inferences in a patterned argument. That is necessary, of course, but that is the easy part. Good advocacy is the careful selection and organization of facts that lead to the conclusions or inferences that then feed to a particular conclusion. The absence of a clear recitation of facts from which inferences or conclusions might be drawn has left it to the court to review the evidence to determine if there is evidence in the record to support the broad assertions in the defendants’ factum.

And if that doesn't have you reading the case for more, I'm not really sure what will.

A little while ago I blogged about legal bibliographies and highlighted some of the work that John Eaton at the University of Manitoba has done in this area. It is very nice to see that John's work has been recognised as he is the 2012 recipient of the Association of College and Research Libraries Marta Lange/CQ Press Award. This award recognises librarians who have made a significant contribution to bibliography and information service in law or political science. The press release from the American Library Association announcing the award can be found here.

Congratulations John!

As Connie mentioned, our firm launched a new website last week. In this post, I’ll share a few thoughts about the process of creating a new law firm website.

Lawyers tend to be a conservative lot, tend to set a low priority on things that don’t bring short term gain, and tend to want to be in control. That combination doesn’t lend itself well to creating a new website that may be somewhat different. It can lead to analysis paralysis, or a conservative approach that leads to either no new site at all, or one that tries to satisfy everyone.

So what is the best way to approach it? Some of this will sound like project management 101 – it is not unlike the process of building or buying a new home.

• Create a core team to run with the project that will include the CEO, the marketing/promotion manager, and others who believe in the project.
• Go to your internal influencers first at key stages to get early buy in.
• Celebrate the early adopters to get others on board. In our case showing some early examples was key for the candid lawyer photos.
• Seek input along the way – or at least keep the firm informed at key stages – but keep control in the core team.
• Decide who the audience is for the website, and what they would want to see. Depending on the nature of your firm, that could be existing clients, prospective clients, client influencers, or other lawyers.
• Look at different websites to see what you like and don’t like. Look beyond your own industry.
• Create a wish list of things you want to accomplish and what it might look like – knowing that some of those may have to be dropped or deferred for various reasons.
• Don’t forget the basics like your office location and directions.
• Hire well. Engage the right web developers and creative advisers. Check their references and body of work. Anyone can create their own site using online tools, and there are many web developers to choose from – but choosing one that understands web trends, doesn’t create sites that all look the same, and you are comfortable working with will get a better result.
• Listen to the web developer's suggestions and advice, and have regular progress reviews and discussions about direction and costs.
• Stay out of the web developer's way and let them do their work.
• Make sure the website is mobile and tablet friendly.
• Make sure the message and personality of the website matches your firm. It must be genuine.

Here are the three most-consulted English-language cases on CanLII for the week of February 1 – 7.

♨ 1. Reece v. Rumney et al 2012 ONSC 780

[1] This is a motion by the Plaintiff for an Order setting aside the verdict of the jury delivered on December 8, 2011 on the basis that there was no evidence to support the jury’s findings and for an Order that:

(a) the action be retried with another jury; or

(b) a verdict be delivered by the trial judge (the plaintiff acknowledged at the motion that this likely was not a realistic solution).

♨ 2. Howell v. Yourk 2012 ONSC 766

[1] After a thirteen day jury trial on a pedestrian motor vehicle accident case, the plaintiff was awarded damages totalling $481,000. The jury verdict exceeded the amounts set out in the plaintiff’s offer to settle. The plaintiff seeks his costs, inclusive of disbursements, totalling $431,353.12, relying in part on an offer served pursuant to rule 49 of the Rules of Civil Procedure.

♨ 3. Merck Frosst Canada Ltd. v. Canada (Health) 2012 SCC 3

[3] . . . . [These appeals] arise out of requests for information which had been provided to government by a manufacturer as part of the new drug approval process. In order to get approval to market new drugs, innovator pharmaceutical companies, such as the appellant Merck Frosst Canada Ltd. (“Merck”), are required to disclose a great deal of information to the government regulator, the respondent Health Canada, including a lot of material that they, with good reason, do not want to fall into their competitors’ hands. But competitors, like everyone else in Canada, are entitled to the disclosure of government information under the Access to Information Act, R.S.C. 1985, c. A-1 (the “Act” or “ATI”).

The most-consulted French-language decision was R. c. Sault Ste. Marie [1978] 2 RCS 1299

Dans le présent pourvoi, la Cour doit examiner des infractions diversement appelées infractions «statutaires», «réglementaires», «contre le bien-être public», «de responsabilité absolue» ou «de responsabilité stricte». Ces infractions ne sont pas criminelles au plein sens du terme, mais sont prohibées dans l’intérêt public. (Sherras v. De Rutzen[3]) Bien qu’appliquées comme lois pénales par le truchement de la procédure criminelle, ces infractions sont essentiellement de nature civile et pourraient fort bien être considérées comme une branche du droit administratif à laquelle les principes traditionnels du droit criminel ne s’appliquent que de façon limitée. Elles se rapportent à des questions quotidiennes, telles les contraventions à la circulation, la vente de nourriture contaminée, les violations de lois sur les boissons alcooliques et autres infractions semblables. Le présent pourvoi a pour objet la pollution.

Having recently travelled to the UK and the US with my 3G/WiFi iPad 1 as my sole communication device, I thought I would pass on a few thoughts on travelling with an iPad.

1) Roaming Charges Using your Canadian 3G SimCard Outside of Canada: Since I tend to be stingy (not a good quality), I have never tested using my Canadian 3G access while abroad. However, comments from others suggest it can be very expensive.

2) WiFi not as Common as One Might Think: Depending on your hotel chain of choice, I find that free WiFi is not always an option (and you should check in advance – many hotels list "WiFi availability" but it is often for a fee, as much as $15 per day). Free WiFi at airports can also be hit and miss. Likewise, although you can often find coffee shops on the street that provide free WiFi, if you are stuck in the middle of a city where there is no WiFi and need to use Google Maps or some other app, you are out of luck. I have experimented with Boingo to get paid WiFi access, but have not used it extensively.

3) Using a UK SimCard for 3G: While in the UK, I found a large number of mobile phone providers who provided "pay as you go" 3G iPad simcards. I ended up choosing a 1 GB pay as you go simcard from the Three store. The salesperson helped me to install it and set up an app so I could monitor usage. I found it useful to have Google Maps while riding double-decker buses to figure out where I was and where I was going.

4) Using a US SimCard for 3G: While in the US, I found it more of a challenge to acquire a US 3G simcard since most Internet chatter suggested you needed a credit card with a US mailing address to purchase a pay as you go simcard. However, at an AT & T store a salesperson suggested I could simply put in the mailing address of the US hotel where I was staying. I therefore purchased a simcard (a whopping $15 – I later learned I might have been able to negotiate a cheaper price or one for free from an Apple store, but that was not necessarily a convenient option for me). However, when trying to purchase the 3 GB per month pay as you go simcard, the online payment system would not accept my US hotel address for my corporate credit card. The salesperson then suggested trying my AMEX personal card, which did work (I have since seen some Internet chatter suggesting that prepaid US credit cards may also work). Ultimately, this worked out to being slightly cheaper than the hotel's WiFi and allowed online access while outside of the hotel.

5) Travel apps: There are no lack of iPad apps for travelling: see here, here, and here for some sample lists of travel apps. My most frequently used travel apps include Skype for iPad, WeatherEye HD, the Air Canada app, Yelp, and various subway maps, depending on which city I am in.

I welcome comments and other tips for travelling with an iPad. Of course, if purchasing simcards from abroad, do so at your own risk and make sure the salesperson understands your needs before commiting to any particular simcard or plan.

Now I need how to figure out how to stop the automatic renewal of my AT & T simcard . . . .

The LegalTech 2012 Conference last week was a bit overwhelming for me as a first-time attendee.

As a knowledge management (KM) lawyer / law librarian, my continuing legal education opportunities tend to focus more on conferences related to KM or law libraries, such as the upcoming annual conference of the Canadian Association of Law Libraries / L'Association canadienne des bibliothèques de droit held in Toronto in May.

However, I think it was worthwhile attending LegalTech, although I might not need to attend every year. The main difference for me was the large number of technology vendors exhibiting or presenting their technology.

There were several themes I saw from the conference, including e-discovery and predictive coding, enterprise search, the use of iPads in legal practice (including mobile device management), and working in the cloud. Of these themes, e-discovery seemed to dominate.

Because my technology interests are currently not focused on e-discovery, I found many of the seminar sessions to be less relevant for me. That said, the keynote sessions were interesting and I enjoyed the session called iLove for the iPad: Tips, Tricks & Apps. From that session, I realized I am likely under-utilizing GoodReader for iPad, which – in addition to reading PDF files – also allows you to manage and transfer your files. A number of other PDF apps were mentioned, including PDF PROvider for iPad (which allows you to create PDF files) and PDF Expert (which lets you easily use PDF forms and signatures). The speakers also recommended the Atomic Web Browser as an alternative to the native iPad web browser since you have an option to have this web browser "mimic" your web browser of choice. I also likely taking notes in iWriter, mentioned by the speakers, since it has keyboard "arrows" allowing you to more accurately move the cursor on the screen). The other app I will likely explore is SoundNote, which records the speaker's voice and synchs up the recording with notes you are writing on the iPad. There is of course also the two high-end apps for lawyers, being TrialPad for iPad (which allows trial lawyers to easily use their iPad to present visual evidence to the court) and TranscriptPad for iPad (which allows you to easily review, tag, and annotate examination for discovery transcripts).

Ultimately, however, I found that perhaps the most useful thing to do was to meet with vendors and find out about their technology.

The Supreme Court is scheduled to hear the appeal in Clements (Litigation Guardian of) v. Clements, 2011 BCCA 581, reversing 2009 BCSC 112; leave to appeal granted 2011 CanLII 36004 (SCC) on February 17, 2012. The Supreme Court’s summary of the issues in the appeal suggests that that all the Court was asked to do is clarify the meaning of the Resurfice material contribution test for proof of the causation requirements in causes of action in negligence and, then, determine the correct result in Clements based on that test. See http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=34100.

That is an accurate enough summary of what was in Ms. Clements (the appellant’s) leave to appeal factum. It is not an accurate summary of what is in her factum. The appellant (Ms. Clements) has explicitly asked the Court to decide if the causation issue ought to have been decided in her favour on the bases of the but-for test, in particular the “robust, pragmatic, common sense” approach mandated by Snell v. Farell [1990] 2 S.C.R. 311, 1990 CanLII 70. The parties’ factums are available on the Supreme Court’s web site. See http://www.scc-csc.gc.ca/case-dossier/cms-sgd/fac-mem-eng.aspx?cas=34100. That is not a problem because the Supreme Court’s mandate, having granted leave, is to make the decision that ought to have been made by the lower court from which the appeal comes; or order a new trial if that is the proper decision (if the decision appealed from was “against the weight of the evidence); or remand the appeal or any part of the appeal to the court appealed from for additional consideration in accordance with the direction of the Court: the Supreme Court of Canada Act, R.S.C. 1985, c. S-26, ss. 44-46.1.

The Supreme Court panel in Clements could have three judges who were appointed to the Court after Resurfice was decided. It will if the panel is the full 9 member court. It will have at least 1 new judge if the panel is composed of seven judges. Justices Cromwell, Moldaver and Karakatanis are the new appointments. Justices Bastarache, Binnie and Charron have retired. Only Justice Cromwell has expressed a judicial opinion on the meaning of Resurfice in reported reasons for judgment. Only Chief Justice McLachlin and Justice LeBel J. remain from the panel that decided Walker Estate v. York Finch Hospital, [2001] 1 S.C.R. 647, 2001 SCC 23. Only McLachlin C.J. remains from the panels that decided Snell and Athey v. Leonati, [1996] 3 S.C. R. 458, 1996 CanLII 183.

A colleague’s comment about the granting of leave in Clements was “here we go”. My immediate reaction was to add “again”. I hope I am wrong.

On the other hand, the Continuing Legal Education Society of British Columbia's (CLE BC) first "Causation in Tort" conference was held in Vancouver in June 2008, about 1 year after Resurfice. "Causation in Tort II" was held in Vancouver in June 2011. It will probably be late 2012 or early 2013 before the Clements reasons are released, assuming that Supreme Court concludes that the case requires something more than a brief oral judgment. Assuming the Supreme Court does attempt, again, to clarify the jurisprudence, it will probably take a year or so before the Clements reasons will have been considered often enough by the provincial and territorial courts that clear trends will be apparent. So mid 2014 will be just about time for "Causation in Tort III" in Vancouver, in May or June. (If you've spotted a trend, you're right.)

For those who care about such things, the materials from both "Causation in Tort" conferences are very good* and reasonably priced. They are available through the CLE BC web site store. (No, I don't get direct kickbacks but if enough people by the material that'll probably hint at some reason for the next conference.)

(*Full disclosure – I was involved in the preparation of some of the materials in both conferences. The "Causation in Tort II"  material includes sample factums for a mock appeal to the British Columbia Court of Appeal that was part of the "Causation in Tort II" programme. The factums cover a wide range of issues. The unfortunate plaintiff – an otherwise successful British Columbia lawyer – somehow managed to develop both AIDS and mesothelioma, then be killed in a rather complicated motor vehicle accident while on his way to an appointment with one of his doctors. The appeal dealt only with liability.)

Social Media – networking and sharing of breaking news, gossip, pictures, videos, music, and just about everything else – has become a part of daily life for many people. Social media sites house this information about you, your firm, your clients and their businesses. Even if you don’t actively participate in social media, the information can be vital in fact gathering and monitoring. Let’s look at some of the available tools to make that happen.

Social Media Search

For researching what people are doing, saying, and revealing about themselves, searching social media sites is imperative. Blogs, YouTube, Twitter, Facebook, LinkedIn, Bebo, MySpace, Plaxo, and most other popular social media sites offer built in search tools. Lawyers should not forget these as valuable places to search, though they must be careful to avoid “pretexting” or using means to coerce or deceive someone into giving access to a private social media profile. Google’s primary search engine will pick up some social media content, primarily blogs and public LinkedIn information, as do Bing and other search engines. Google’s new Search Plus Your World adds content from your Google+ streams, if you are logged into Google. However, there are other ways to search multiple social sites en masse which may offer different and possibly better results.

While aggregate social media search engines are in their infancy, there are a few out there to explore. One is Whos Talkin, which aggregates search from many popular social networking sites. Another is Social Mention, offering a similar search function, and is significantly speedier and more effective than Who’s Talking.

For more focused social media searching sites like YourOpenBook (note: quote including profanity from Marc Zuckerburg on this page) that searches Facebook information that is not marked private, gives a deeper dive into Facebook. Similarly Twazzup and Topsy search Twitter, and Blinkx searches video content in Hulu, YouTube, as well as news and media outlets (note: adult filter is on by default).

Other sites offer people searches, and focus on finding people results in white pages, public records, business records and social media sites. These search sites include ZoomInfo, PiPL, YoName, Folowen, Snitch.name and Spokeo. Keep in mind that you will need to do additional research, as these directories match against name only, which is an inexact science. Additionally, similar “reality checks” need to be followed if you choose to use any of the public records searches available with some of these tools.

Social Media Monitoring

Social media management tools like Hootsuite, Social Oomph, and TweetDeck will help you monitor activity by keywords and account names in multiple social media channels. However, if your monitoring needs are infrequent or changeable, there are a number of social media search tools that offer alerts via email or RSS. In Addictomatic you can do a keyword search, and results are displayed in boxes for each of the social media outlets. You can even rearrange the boxes to put the sites you are most interested in at the top. Then simply bookmark the page in your browser and visit it again to see updated results. Kurrently searches only Facebook and Twitter, and offers an RSS feed for your saved searches. Social Mention offers alerts, and Whos Talkin has an iGoogle gadget.

Backing Up Social Media

While there are many ways to get back into social media content, the information is vast and fleeting. You may have a need to capture and keep social media content, either for your firm, or your client, as backup, as a record of interactions, or to ensure compliance with a social media policy. You may have heard of the “Wayback Machine” aka The Internet Archive, which records pages of certain webpages and archives them. The problem with this site is that it is inconsistent as to which sites it archives, and for how long. For lawyers who want to take control of monitoring and storing webpage content, enter Iterasi. This tool bills itself as a corporate compliance, litigation protection, compliance, and brand heritage tool. It is not free, but for lawyers and companies who need this type of service, it can be invaluable. It is a web archiving tool that will “scrape” the screens of even complex websites, as well as capturing RSS feeds, topics discussed in social networks, and any website the user happens to visit. The company provides several discrete products, one web archiving tool, a social media monitoring application, and a “notary” tool to archive individual pages on the fly. Similar to Iterasi, NextPoint’s Preservation Cloud crawls and archives specific web properties – blogs, social media sites, webpages. You can tag, export, and search the data collected. Like Iterasi, this is a “cloud” tool, so the data is stored on external servers, which does introduce some risk in using the service, while making it easy to sign up and get going as there is no installation or configuration.

Conclusion

Whether or not you are using social media as marketing or networking tool, lawyers can’t ignore the vast amount of information stored in these portals. Whether your needs are fact gathering, monitoring, or current awareness there are plenty of tools in the social media ecosystem to help you stay on top of the game.

I spent last week at LegalTech in New York. It was a huge, thought provoking, intimidating, useful, connected, and intriguing experience. I was sent to the conference to investigate software in some specific market segments for my firm, and it was very useful for making connections with vendors and surveying the landscape of available products. There were very few librarians in the crowd.

The LegalTech experience could lead someone to believe that the most important technology function in our industry is eDiscovery. Predictive coding was another theme that bubbled to the surface multiple times along with cloud computing solutions.

Contrast themes from LegalTech with CanLII's recently released Strategic Priorities. Simon outlined this document for Slawyers last week, but today the Edmonton Law Libraries Association hosted a lunch with Colin Lachance, CanLII President and CEO, follow him on twitter.

LegalTech's recurring themes, at least for me, of eDiscovery, predictive coding and storing and using information in the cloud are all about content, accessing and delivering content in efficient ways. CanLII's first three strategic priorities are all about content, accessing enriched content and delivering content in a manner that encourages continued use of this vibrant service.

My law firm library is about content, access to enriched content, and delivering content in a manner that encourages use of our library services. Legal technology and law libraries appear to be aligned along the same themes. Perhaps it isn't that weird to send librarians to technology conferences.

Early this year, the Department of Justice released, seemingly for the first time, a report titled "Costs of Crime in Canada, 2008" by Ting Zhang [PDF version]. Given the impending omnibus bill on crime and the likely large increase in the costs to the provinces from their associated responsibility for corrections, this report might be of some interest.

It consists, essentially, of a series of "appendices" that set out cost tables for, respectively, the criminal justice system, the victims of crime, third parties, and finally intangible costs (pain and suffering, value of loss of life) associated with crime. The overall costs are conservatively estimated as follows:

In 2008, the total (tangible) social and economic costs of Criminal Code offences in Canada were approximately $31.4 billion.1 This amounted to a per capita cost of $943 per year. . .

In the present study, it is estimated that the total intangible costs were about $68.2 billion in 2008, which increased the total costs of crime to $99.6 billion.

For many members of the general public seeking to understand the law, Wikipedia is the first and perhaps only stop. Others may go further and eventually come across equally accessible but considerably more reliable sources – online or otherwise. In any event, there is often a gulf between where the general public goes to understand the law and where the understanding is available.

Based on observations of a little experiment in contextual-linking, small efforts can go a long way toward bridging that gulf.

Contextual-linking is different from promotional or advisory linking such as is found on the "links" page of so many websites. I'm using the term here to describe links that pertain directly to the subject matter of the text in which the link appears. As I describe below, small efforts in building contextual links can redirect an engaged and curious person to valuable material.

There is no discovery or originality in my observation. In fact, I'm pretty sure Google and others are on to the idea. Innovation, if any, would come in the application of the concept to public legal education and, hopefully, in the scale of that effort.

A wee Wikipedia experiment

On December 23^rd, I went to the Wikipedia article for the Criminal Code of Canada and in the "structure" section of the page where a prior editor had helpfully listed title of each of the 34 major parts of the Code, I embedded a hyperlink pointing back to the appearance of that part in CanLII's version of the Code.

It took about 15 minutes and had an astonishing impact.

December page view referrals from that article to CanLII were the highest of any month in 2011 of any of the over 2000 Wikipedia articles referring web traffic to CanLII. Relative to the Criminal Code article itself, December CanLII page view referrals:

• were three times greater than the prior most active month;
• equalled 45% of the Jan-November 2011 total; and
• represented over 1/3 of the 2011 total.

The momentum continued in 2012. Barely six days into the new year, total page view referrals from the Wikipedia Criminal Code article exceeded the December total and now demonstrate a daily pace that just prior to the experiment came only monthly.

In an attempt to confirm that the results were attributable to my experiment and not some external event, I examined overall referrals stats for other popular and related Wikipedia articles and saw no similar spikes or other evidence of general increases. To the contrary, as the Wikipedia site stats for article in fact showed lower than average visits since the time of my edits, including no visits at all on December 24^th and 25^th.

As a further step to confirm the impact of adding the links, late in the afternoon on January 2^nd, I added the same sort of links to a different article (this time it only took 3 minutes) and observed an immediate six-fold increase in daily page views and attainment of the 2011 monthly average within 4 days.

Because CanLII is first and foremost a research tool, page views are primarily generated by users already on the site as they carry out their research and growth is therefore dependent on user satisfaction with the resource. Page views generated by referring links represent a tiny percentage of the total (typically in the 2% range) although the actual number of external referring sources is fairly large.

82 637 different external web pages sent traffic to CanLII in 2011 resulting in nearly 1.7M page views. Linked traffic from Wikipedia articles accounted for approximately 50 000 (or approximately 3%) of those page views. So while sizeable, increased traffic from Wikipedia will not move the needle much relative to CanLII's total page views (~80M in 2011), but I do hope people who discover CanLII as a result of a Wikipedia link will find some benefit.

Building bridges to understanding link-by-link

I will never know if the 18 minutes I spent adding legislative hyperlinks to existing Wikipedia text made any difference to the people who clicked on them. The statutes are no less impenetrable; the justice system is no less imposing. But I take some satisfaction in knowing that the engaged and curious people who clicked those links have accessed reliable information and may be one step closer to understanding the law. More to the point, I am now fascinated by the possibility of taking this idea further and enhancing Wikipedia text with links to not just primary law, but to secondary and explanatory sources where actual understanding is delivered through useful and accurate information.

Lawyers, assiduous linkers and charmingly pedantic* in their desire to validate their every utterance by reference to supporting authority for every point made, are natural bridge builders in this context. Imagine the net benefit to those who will continue to make Wikipedia their first stop in knowing the law if there were hundreds more bridges available that could lead people out of the morass? Imagine how easy it would be to do this if hundreds of legal professionals made a one-time, 15 minute effort to improve a Wikipedia law-related article by adding a contextual link to a reliable and freely accessible legal information resource?

If you take up the challenge, be sure to take a glance at Wikipedia's style guide and its rules for incorporating external links lest a transgression come to the attention of a zealous Wikipedian who comes in and erases your footprints after you leave. [I approached this in reverse and only learned of the rules after making edits. As it happens, my edits are possibly offside the rules but have yet to be undone].

Looking for a redirection target? 

In addition to legislative and case links, how about linking to a relevant article found on a government or PLEI (public legal education and information) website? [See my November column for a discussion of the PLEIs.] For general legal terminology and understanding and you might consider an article from the irreverent but thorough Duhaime.org. For criminal law you might consider an article from the site maintained by B.C. crown counsel Henry Waldock (though targeted to police officers as a primary audience, the text is written in plain language and very easy to follow). Maybe you know of other in-depth legal issues websites maintained by lawyers, professors or others?

Why should we care?

Though it probably doesn't need to be said, I will say it anyway. As governments and the PLEIs well understand, access to legal information and understanding is a critical piece in the broader societal goal of ensuring citizen access to justice. This goal should be shared by all legal professionals.

There is no denying Wikipedia's drawing power. If readers of this article set aside 15 minutes to add to a Wikipedia article a few of the missing links could bring its legally-inclined visitors closer to their objective of understanding the subject of their search, we could make a small advance toward our shared goal of ensuring access to justice.

Choose any article you like or drop me a line if you want suggestions from among the 2 237 Wikipedia articles already driving clicks from people trying to learn more about the law.

______________________

*As just such a pedantic lawyer, I humbly present my new favourite joke (sourced from too many places to mention): " A pedant walks into a bar. Well, it's a restaurant with a bar. Technically it's a brewpub since it has an onsite microbrewery …"

Julian Assange's extradition appeal was heard at the UK's highest court on 1 and 2 February. Assange is trying to avoid being sent to Sweden to face allegations relating to sexual encounters there in 2010. The key issue is whether a public prosecutor is a valid judicial authority.

Two things about this appeal illustrate the flexibility of what is wrongly thought to be a crusty, fossilized world. Both barristers in this extremely high profile case are women. And the proceedings were broadcast live from the court room. Here is an extract from the hearing.

And Simon Chester's post today reports an announcement that the court will start official tweets of judgments .

Not all fraudsters are strangers. Even partners, associates, law clerks or other employees may turn to fraud because of financial pressures from a divorce, failed business venture, or other personal crisis. Its usually the last person you'd expect, and often one of your most long-standing and trusted employees.

Here are the red flags:

• Someone never takes vacation or sick leave, works overly long hours, or refuses to delegate work.
• A firm member undergoes a sudden change in lifestyle or change in temperament.
• The firm receives mail for a corporation for which no client file is opened or billed, or minute books are kept in the lawyer’s office instead of with the corporate law clerk.
• Unusual patterns such as a sudden increase in payments to a person or credit card company or government, or complaints about slow payment from suppliers or clients, or an increase in written-off work in progress (WIP).

For more information, and directions on what to do if you have a suspected or real fraud, see “Fraud on the Inside: What to do when partners, associates or staff commit fraud” in the Winter 2008/2009 issue of LAWPRO Magazine at www.lawpro.ca/magazine

Library Boy told us last year about some tentative steps that courts were making to embrace – or to sniff around tentatively – the whole subject of social media. Today's announcement from the UK Supreme Court that it will start official tweets of judgments – this in anticipation of the Assange extradition decision – represents the first wholesale adoption by a final court of appeal.

It overshadows Chief Justice McLachlin's announcement within a speech at Carleton University on the Media and the Courts, that the Canadian judiciary should start to think seriously about social media.

See the Globe, the Star, CTV and the Halifax papers

You can see a brief video clip here.

I understand that the Australians may be thinking about the issues too.

Two weeks ago federal prosecutors in the US shut down MegaUpload, one of the most popular file-sharing sites on the Internet. The site was a widely-used "digital locker" that stored files for millions of users world-wide. Some of those users, however, used the side for illegitimate purposes, turning the site into a hub of what the US prosecutors characterized as "massive worldwide online piracy."

While there's no question large quantities of illegal, pirated material was successfully removed with the MegaUpload takedown, thousands of innocent users have lost access to their files as a result of the takedown. The legality of the takedown has been questioned by lawyers from around the world, and the Electronic Frontier Foundation has promised to take legal action against the US Government if data is not returned to legitimate users promptly.

When considering the risks of storing data in the cloud, becoming collateral damage from an over-reaching takedown order is not something the typical consumer will - or should – have to contemplate. The US Government deserves strong pushback on this kind of action, as other file storage services, such as Dropbox, Box and others – could face the risk of being summarily shut down because a subset of its users choose to misbehave.

The Strategic Planning Society recently posted on their Linkedin site the seemingly straight-forward question: “What is a good definition for vision?”

Now please keep in mind that this question is being posed within the fraternity of those who have fostered and perpetrated the belief that every organization should have a vision and that the organization’s leader should be a “visionary” – the originator of such a vision. A flurry of responses came from a community who hold titles like Strategic Planning Manager, Senior Resource Planning Manager, Head of Planning and Control, Senior Manager Strategy Solutions, Strategy Execution Advisor, Managing Partner, CEO, CMO, University Professor and so forth and included:

The position or status a company aspires to achieve within a reasonable time frame.

The vision is a concise measurable statement that defines the mid to long -term (three to ten years) goals of an organization. The vision should be external and market oriented and should express how the organization wants to be perceived by the world.

Vision – a smart ability to look behind horizon

The ability to stay in a balloon above your business, to see beyond the operational issues

"Vision" refers to an imagined state of affairs. All else is elaboration.

Vision consists of thinking ahead and ensuring that colleagues address the right issues.

Picture-painting by the Leader: We're going [over there]. We need to be there [by this time during a reporting-period].

These responses are coming from very smart, accomplished professionals. This question generated in excess of 65 postings over a one-month period without any real consensus amongst the 6800 members of The Strategic Planning Society of what a vision really is!

I believe one aspect of this notion of “having a vision” was confirmed by the recent (150 managing partner) interviews conducted by my UK colleague Rob Lees (co-author of When Professionals Have To Manage) where he related, in a discussion with me:

The managing partner of one of the firms we talked to explained how he had come back from Harvard Business School’s Leading Professional Service Firms program with renewed energy and a determination to drive the firm forward. So, he outlined his vision of moving the firm from its regional base to becoming a leading national firm to his partners and talked about what they needed to do to get there. But, to his abject disappointment, nothing happened. To the partners, the vision was just too aspirational; achievable only through a merger, which they felt they would be on the wrong side of. Concerned about the lack of action, the managing partner visited all of the offices to talk through the plans and, during these visits, the partners’ concerns surfaced.

Meanwhile, in his new book Great By Choice, Jim Collins tells us that his findings dismiss several closely held business world beliefs . . . such as the notion that successful leaders are “bold, risk-seeking visionaries.” Rather, Collins concludes that the most successful leaders are “disciplined,” “empirical” and “paranoid,” building on verifiable results and constantly anticipating what could go wrong.

It is my (personal) strong belief that this constant talk about "needing to have a vision" is just NONSENSE and something that managing partners have elicited from various books on leadership. Partners definitely NEED to have some sense of shared direction (where are we going?) and that shared direction needs to be facilitated by an effective leader; but I find that this idea that in order to be an effective firm leader, you need to articulate a vision, is just not grounded in any reality.

Remember mission statements? Mission statements first came into vogue in the 1990’s. A single-page document filled with more platitudes than you’d find in the average prayer book, spelling out your firm’s business mission. No one remembered the darn things, it was business as usual, and the document didn’t have the profound impact on the fortunes of firms that their creators had hoped for. The mission statement exercise was quickly forgotten — except at those few firms who chose to have them laminated as cards for every professional to keep in their wallet.

Then we were instructed on how every firm needed "a vision." It was a new name, but quickly became the same old silly exercise. All your skeptical partners exchange winks and knowing glances. The Executive Committee will have to be indulged one more time. In all cases the result was to be the same — having a vision changed nothing. I am not aware of one single firm (and certainly not among those achieving above-average performance) who have invested partner time in developing a mission or vision statement.

And I have for years challenged lawyers at multiple legal conferences to please give me just one example of a law firm, anywhere, wherein a firm leader proclaimed a vision and had all of his or her partners excited, eager to move forward and behaving in concert with that articulated vision. I have yet to find one real live example.

Looked at slightly differently . . .

Visionaries tend to narrow their attention onto those phenomena that appear relevant and supportive of their visions. They can, therefore, appear impatient, dismissive and intolerant of any information or ideas that may appear to challenge or question their vision (“don’t confuse me with the facts”). While having a vision may be nice – in a complex world, visions require a psychological sophistication that many of us mere mortals lack. A true vision contains a paradox in that it is not an expression of truth, nor is it necessarily right, but your vision must be treated as though “it was right.“ The thing to consider is that a true vision requires that you have a view of the future that isn’t necessarily supported by evidence.

(And with tongue firmly implanted in cheek): I don’t know about you, but my academic education in social psychology taught me that an individual having visions . . . unsupported by evidence . . . was usually a clear sign of someone who had lost touch with reality!

Congratulations to law firm Harrison Pensa in London, Ontario who have just relaunched their website. While launching a new site is not necessarily newsworthy (well, unless you are a member of the firm itself), in this case HP have used some fresh thinking which makes this redesigned site stand out.

A few features of the site:

• the look of the site is bold, personable, and still professional
• rather than stock photos, they feature their own lawyers prominently
• lawyer bios include links to their lawyers on social media sites (notably LinkedIn) and also allow for readers to share the bios across the web with a social media "share" button
• they have three blogs on the site (HP Business, HP Community, and Students), again with share-ability
• they are one of the few law firms taking advantage of the popular software WordPress.

Why is it interesting that they are using WordPress? WordPress is a free, Open Source platform that has become widely adopted around the world both for blogs and for websites as an easy-to-use content management system (CMS). According to Matt Mullenweg (WordPress originator) last August in his "State of the Word" report, WordPress is running on 15.5% of all websites, and accounts for over 54% of CMS marketshare. 22% of domains registered in the U.S. are running WordPress. That is a huge adoption rate, and yet law firms have a tendency to look for something other than this obvious solution. So, kudos to HP for joining the "cool kids" in using WordPress. It makes sense to use something that is widely known, and has a community around it for support.

HP are also tying the launch of their new website in with a campaign to raise funds for the London Food Bank. For every person who "likes" their Facebook community page, they will be donating a pound of food to the food bank. Kudos on this idea to give back!

For a more in-depth discussion of why the Harrison Pensa website is significant, see also Jordan Furlong's post on the Stem Law Firm Web Strategy blog from February 1st.

Back at the end of the last millennium, the Centre de recherché en droit public (CRDP), along with colleagues from the Centre de recherches informatique et droit (CRID) and the Centre national de la recherche scientifique (CNRS) obtained a research grant from the European Commission’s Directorate General for Health and Consumers to develop what would become the ECODIR (Electronic Consumer Dispute Resolution) ODR platform.

Launched in Brussels in October 2001, the ECODIR platform was well received by the various stakeholders: consumer associations, professional associations, industrial groups, the public sector, the European Commission, etc. The technical aspects of the application were praised, as was its user-friendliness and the ease with which the parties can negotiate directly with one another, without the intervention of a third party. Yet, despite these facts, the ECODIR Project has never really taken off. Hosted at the Faculty of Law of the University College of Dublin, Ireland, the ECODIR platform is still available on the Internet, but only handles a handful of cases annually.

Although the European Commission made what we believe were a series of mistakes in the early stages of implementing the platform – such as diverting funds towards third-party projects that never came to fruition or not following through with its original plans, which including labels and partnerships with major European commercial sites –, all of which have undeniably had a role to play in the lack of success of this enterprise, ECODIR mostly serves as a cautionary tale regarding the issue of funding online dispute resolution systems. In the early part of the first decade of the new millennium, many websites claiming to offer online dispute resolution services appeared. Yet, aside from SquareTrade, which was able to take advantage of a captive market in the form of the formidable armada of buyers and sellers on eBay, few of these services found the necessary financial backing to develop functional ODR platforms and to make their systems strive.

There are only two viable ways to address the ODR funding question. The first is to have the ODR provider be financed by a benefactor, whether public or private. Public models are popping up in certain areas of the world, the small claims experiment in British Columbia being one of the latest examples of this trend. But, since the Internet is transnational in nature, it remains difficult to see how a single state can offer this type of service to cross-border disputes, especially when neither litigant has any connecting factors (to use the terminology set forth by the Supreme Court to establish competence for online disputes) with said state. Furthermore, even if foreign litigants chose to use a platform offered by, for argument’s sake, the Canadian government, it would be difficult to justify such an expense to Canadian taxpayers, especially in these difficult economic times. The burden of funding ODR therefore rests on the private sector, which, as the last decade has shown, doesn’t seem keen on investing in the field. Other than eBay — whose system is incorporated into its auction service, and therefore reserved for its members — major Internet stakeholders have yet to agree to open their wallets to facilitate the establishment and operation of online dispute resolution systems.

Since ODR operators cannot count on public or private funding to cover their costs and generate a profit, the only remaining option seems to be to have participants pay user fees. This business model is currently being used by most "classic" ADR services, yet doesn’t seems to be well adapted to high volume, low value cases such as those put forth in online B2C cases. Why would consumers chose ADR when the value of the dispute is less than the cost of arbitration? Of course, this only applies for those few cases where parties cannot resolve their dispute themselves through the help of the platform and, therefore, would need to rely on the intervention of a third party to decide the outcome of said dispute (a scenario that is relatively uncommon if one relies on statistics regarding ODR). However, even if arbitrator salaries do not come into play, operating costs relating to hosting services, system administrators and general upkeep still need to be factored into the equation. Furthermore, since there is strong opposition from the international community to the idea of consumers having to pay even a nominal fee to have access to ODR services (this position seems to have been adopted by most delegations taking part in the UNCITRAL Working Group on Online Dispute Resolution for which the CRDP has observer status), there is only one option left, and that is to have the online business community bear the blunt of ODR costs.

As Michael Geist demonstrated back in 2001 in his “Fair.com” paper, this option, of course, raises serious questions regarding the neutrality of ODR providers and administrators. If one party pays all of the provider’s bills, there is a risk of partiality. This problem was more recently brought to light with the National Arbitration Forum scandal regarding credit card disputes where “Only 0.2% of consumers won their cases in California when NAF was involved”, a situation many commenters attributed to the fact that corporations with controlling interests in the NAF were also linked to a debt collection agency.

A similar argument could technically be made against what is often referred to as the most successful example of ODR, i.e. the eBay Resolution Center (the system which replaced SquareTrade in 2008). Since eBay funds its platform through monies received from its sellers, one could argue that the service could show a bias towards the later (although we know of no statistical evidence supporting this claim). However, we submit that such an argument remains farfetched since eBay members can both sell and buy, and therefore the line between merchants and consumers is not as well defined as it would be in classic ecommerce situations. Furthermore, as eBay has millions of members, it seems doubtful that even the biggest of PowerSellers could have that much influence on the website. Of course, since some Courts no longer view eBay as a neutral marketplace (in France for example), but rather as a partner to its sellers, there is a risk that, whether it is warranted or not, consumers start to feel that the deck is stacked against them…

In 2012, there are few that would still claim ODR is not a useful tool to solve online commercial disputes, especially with regards to high volume, low value disputes, such as those most commonly seen in B2C cases. Most courts recognize ODR settlements as binding, platforms such as SquareTrade and ECODIR have demonstrated that the technology can actually help reach a settlement more easily and at a much lower cost than classic ADR services ever could, and the steady climb in computer literacy and cross-border ecommerce suggests that more consumers should chose this means of settling disputes in the near future. All that remains for ODR to prosper is to settle the financial question.

More than a decade after funding the ECODIR project, the European Commission is getting back into promoting ODR with a Proposal for a regulation of the European Parliament and of the Council on online dispute resolution for consumer dispute. According to the Proposal, the Commission would develop and host "an interactive website offering to consumers and traders a single point of entry for the resolution of contractual disputes arising from cross-border e-commerce transactions". The site would serve a hub where consumers and retailers could choose an ADR provider to settle its case. Although the platform itself should be funded by the European Commission, it remains to be seen how ADR providers who chose to take part in the endeavour will find a way to develop systems that can interact with the platform, offer competitive ODR services and make money considering the low values at stakes. Hopefully, unlike with the ECODIR project, the European Commission will find an economic model to ensure the overall system prospers. Otherwise, as the song goes, it's all just a little bit of history repeating.

What is the responsibility of a public body to notify a third-party when a request for information is made? The Supreme Court of Canada considered this question in Merck Frosst Canada Ltd. v. Canada (Health), on appeal from the Federal Court, and released this week. Although the appellant's appeal was dismissed by the court, they did highlight some areas of improvement for the drug application process.

A competitor of the appellant pharmaceutical company, Merck Frosst, requested information under the Access to Information Act about submissions Merck had made to Health Canada. The submissions were required under the Food and Drug Regulations to bring Merck's Singulair® to market. They consisted of a New Drug Submission (“NDS”) and a Supplementary New Drug Submission (“SNDS”) that contained full and frank disclosure of all knowledge and information that the appellant had about the asthma drug, including list of ingredients, details of manufacture, tests for potency, purity, stability and safety, and detailed safety tests. Some of this information is eventually contained in the Product Monograph when the product is approved, but the contents are subject to discussions and negotiations between Health Canada and the pharmaceutical company.

Background

At issue was the appropriate balance between access to information for accountability and strengthening democracy, and private interests necessary to foster research and innovation. Justice Cromwell referenced Justice La Forest's statement in Dagg v. Canada (Minister of Finance) to explain the purpose of the Access to Information Act,

On receiving the information request from the appellant's competitor, Health Canada identified 30 out of 550 NDS pages and 60 of 300 SNDS pages that could not be disclosed under s. 20(1) of the Act,

20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains

 (a) trade secrets of a third party;

 (b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;

 (c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; …

The court noted that this section must be read in conjunction with substantive protections in s. 25,

25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.

Health Canada notified the appellant of the request when it was made under s. 27(1), but Merck indicated that all of the NDS and SNDS information were confidential trade secrets subject to s. 20(1), with the exception of already published studies and the Product Monograph. Health Canada took this into consideration and made further redactions, but provided disclosure to the competitor. As a result, Merck filed for judicial review. Five decisions preceded the hearing before the Supreme Court.

On the initial application, Merck was successful in part. The Federal Court held that Health Canada could not disclose any part of the record without prior notice apart from a public document called a Notice of Compliance. A unanimous decision on appeal remitted the matter back to Federal Court over a misinterpretation of s. 20(1)(b).

The rehearing found that Health Canada should have conducted its own thorough review before putting the onus of refusing the disclosure on Merck. Health Canada agreed to conduct further redactions. Some trade secrets were found by the court in the submissions, and Merck successfully obtained a declaratory order over the lawfulness of the procedure followed.

The Federal Court of Appeals then concurrently heard two appeals and cross-appeals. A unanimous court upheld the appeals and dismissed the cross-appeals, and held that the notice obligation only arises where s. 20(1) information is contained, and disclosure without prior notice otherwise does not contravene the Act. The interpreted the trade secrets exemption narrowly and with a high threshold, and required direct and objective evidence to demonstrate confidential information. The court found that Merck did not provide sufficient evidence in this respect.

Decision

Justice Cromwell for the majority indicated that government institutions must make reasonable efforts to give third parties written notice of requests for disclosure except where a waiver has been made. He applied the "modern approach" of statutory interpretation, also referred to in the literature as the "informed interpretation approach" or "pragmatic dynamism,"

[64] …the words of a provision are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament…

He held that s. 27 created a low threshold to trigger the notice requirements, but rejected the appellant's position that there as an automatic right to notice,

[64] …The grammatical and ordinary sense of s. 27(1) makes plain that notice is required only if certain conditions are met in the particular circumstances. The section does not refer to particular categories of documents but rather to particular types of information that are or may be contained in records otherwise subject to disclosure. The subsection sets out specific conditions precedent for engaging the notice requirement. As the Federal Court Trial Division put it in words that were endorsed by the Federal Court of Appeal: “The essential condition precedent to the issuance of the notice is that the respondent has reason to believe the disclosure of the record might be contrary to his obligation under section 20 not to disclose records”

He concluded at para. 84,

(i) With respect to third party information, the institutional head has equally important duties to disclose and not to disclose and must take both duties equally seriously.

(ii) The institutional head:

- should disclose third party information without notice only where the information is clearly subject to disclosure, that is, there is no reason to believe that it is exempt;

- should refuse to disclose third party information without notice where the information is clearly exempt, that is, where there is no reason to believe that the information is subject to disclosure.

(iii) The institutional head must give notice if he or she:

- is in doubt about whether the information is exempt, in other words if the case does not fall under the situations set out in point (ii);

- intends to disclose exempted material to serve the public interest pursuant to s. 20(6); or

- intends to disclose severed material pursuant to s. 25.

He noted that both parties took extreme positions and hoped for a more cooperative and constructive approach in the future, because the Act only functions when the parties cooperate. The institutional head cannot shift their responsibility on the third party and the third party must provide assistance in helping them carry out their duties,

[90] From the third party’s perspective, it is, of course, prudent and in accordance with common sense to be as helpful as it can be in identifying precisely why disclosure is not permitted. Nonetheless, the head must make a serious attempt, with the available information and having regard to the practical constraints, to discharge the responsibility imposed by the Act to apply the requirements to disclose or not disclose…

Eileen Vanderburgh of Alexander Holburn Beaudin & Lang LLP summarizes the relevance of the decision on the Information and Privacy Blog,

This decision confirms the obligations of a public body in dealing with requests for third party information and the rights and obligations of a third party seeking to restrict access to information it has supplied to a public body. In some cases private sector organizations can address their rights to notice of access requests for their information by way of contract, or by clearly advising the public body that it considers the information it is supplying to be confidential and within the category of information that is excepted from disclosure under any applicable access legislation, thereby triggering the obligation of the pubic body to provide notice. However, neither contract language nor statements of confidentiality will determine whether or not the records at issue are in fact excepted from disclosure.

The Paris court of appeals has decided that a suggested search query generated by the Google Suggest function defamed the company whose name was first entered into the search box. This feature works by displaying the most popular searches performed by other Google searchers associated with the text typed into the search box. So Google doesn’t decide what is displayed; its machines just count and show.

Turns out that one of the most popular associations with the name of the plaintiff company was ‘escroc’, which in French means crook or swindler.

Is this a kind of ‘crowd-sourced’ defamation? What can Google or any search engine realistically do about it? Can the company program its suggestion feature to avoid any words in any language that may have a defamatory meaning? (I guess defamation by context or innuendo may be harder to demonstrate in this process.)

Would it be defamatory if a search for Company X turned up, as an ‘auto-suggest’, CompanyXSucks.com?

The damages were pretty stiff, it seems to me – 50,000 euros.

So: is there a problem here, in your view? Would Canadian law produce the same result? How would you advise your client, the search engine? What about your client Company X, in my hypothetical?

I've been meaning for a while now to do a fillip on Issuu, the online magazine creation tool; and when I saw yesterday that CanLII had done up its strategic plan using Issuu, that gave me the push I needed.

As I said, Issuu is a digital publishing platform that lets you create a glossy online magazine, brochure, or report that can be read on pretty much any digital device. All of which is cool if you're into self publishing. I'm pointing it out to you, though, as a source of a lot of fancy and free content — it is Friday, after all, and consumption, not creation, is the proper "c" word at week's end, is it not?

So what's available once you've read the CanLII report? Start on the main Publications page. From here you can drill down by facets such as popularity or "recency." Or you can browse through one of the 15 named categories (none of which is "law" by the way). You'll see that there's a lot of corporate and marketing dross, but here and there a nugget shines.

For example, I found Spenser, a new bimonthly food and drink magazine that looks as though I could waste half an hour or so flipping through. (Don't forget to use full screen mode; much more enjoyable.) Or for something more tried and true in the food realm, there's Jamie Oliver's magazine. Here are some other finds that might appeal (though hunting on your own could be half the fun):

• Little White Lies – "a bi-monthly, independent movie magazine that features cutting edge writing, illustration and photography"
• "Design by Nature: Using Universal Forms and Principles in Design" (sample chapter)
• Cyprus, 10000 years of history and civilization
• On Snow Magazine
• Electronic Beats – "Electronic Beats Magazine delivers features and interviews with artists from the music and other creative industries…" (Deutsche Telekom)

And if you can't be bothered to hunt and peck for yourself, simply let Issuu parade its "featured" magazines down there at the bottom of the home page.

This is a post in a series appearing each Friday, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

Vanity Fair – From Fashion to Housewares, Are We in a Decades-Long Design Rut? – Kurt Andersen – "The past is a foreign country, but the recent past—the 00s, the 90s, even a lot of the 80s—looks almost identical to the present. This is the First Great Paradox of Contemporary Cultural History."

The Atlantic – Various texts – Prince Otto von Bismarck – You can listen to an Edison wax cylinder recording of some nonce verse spoken by Bismarck. (There is another of Helmuth von Moltke, the only known recording of someone born in the 18th century.) The article in the Atlantic explains. And the US National Park Service has a transcription of the recording which makes it almost possible to understand Bismarck.

Discover Magazine – While temperatures rise, denialists reach lower – Phil Plait – The "Bad Astronomer" dissects an error-laden WSJ article entitled "No Need to Panic About Global Warming."

YouTube – Official 2012 Honda CR-V Game Day Commercial: "Matthew's Day Off" Extended Version – Honda and Matthew Broderick – The car company brings back Ferris Bueller's Day Off in a delightful reprise of that great flic.

berfrois – Psychiatry and Japan’s “National Disease” – Junko Kitanaka – The author, a medical anthropologist, takes a look at Japan's vexed relationship with psychiatry and the country's problem with depression and suicide, often resulting from overwork.

CulturalEquity.org – A sampler of 5 Lomax recordings of American folk singers – Various artists – The link takes you right into a playlist of five songs of different styles, all recorded by the great Alan Lomax and released recently on CulturalEquity's new label, Global Jukebox. The Bright Light Quartet is my fave.

The New Yorker – Private Inequity – James Surowiecki – "How private equity firms like Bain Capital earn profits." A critical look at a company once graced with Mitt Romney's presence.

Wired – Opposites Don’t Attract (And That’s Bad News) – Jonah Lehrer – "[O]ur ancient social instincts lead us in the wrong direction, so that we end up trapped within a bubble of homogeneity." Look to your left, look to your right: say hello to yourselves.

IHT Rendezvous – One Country, Two Systems? Not Lately – Mark McDonald – Hong Kongers and Chinese mainlanders feud and spit in a series of spats recently that reveal some lack of harmony. The video in the article, and the cellphone video referred to, tell the story quite graphically, even to someone who doesn't have Cantonese or Mandarin.

The European Magazine – A Future Without Cars? Shifting the Paradigm – Felix Creutzig – "Can the car be retired? Hardly so. But in cities that conceive of mobility as a public good, cars can be integrated with other forms of transportation to create a versatile and flexible system of transportation." Hear that, Mayor Ford? And from a German, too.

It’s not news that social media has taken the web by storm. At the time of writing, six of the top ten websites in Canada (by my count) are social media sites according to the Internet ranking site Alexa.com. And as people spend a greater percentage of their online time within these social environments, it is becoming increasingly necessary for businesses of all stripes – law firms included – to devote more resources to establishing and maintaining a meaningful presence in several different places on the web.

The battle for supremacy between the dominant players in this space – Facebook, Google, Twitter and to a lesser extent Linkedin – is also heating up. From late 2009 until summer 2011 Google had an agreement to include Twitter results in Google’s search engine results as part of something called “realtime search”. However, the two parties could not come to agreement on renewal terms and that service went offline last summer. More recently, on January 10, 2012 Google announced “Google Search Plus Your World” (a.k.a “SPYW”) which incorporates results from Google’s own social media product Google+ (pronounced “Google Plus”) into a separate column in the search results page. I have included a screen capture below showing an example of this new approach using the search term “business” (at present the service only seems to be displaying results for very generic terms although I anticipate it will get much more nuanced very quickly).

Click on image to enlarge.

Negative reaction to this new Google-centric approach towards including social media results has been instant and fierce, both from Google’s competitors and from less partisan observers who feel that “Google just broke itself” by pushing its own wares instead of delivering the most relevant results. A group of Twitter and Facebook developers working under the banner Focus On The User are attempting to hoist Google with its own petard by demonstrating just how skewed the new service is. As they describe it:

We created a tool that uses Google’s own relevance measure—the ranking of their organic search results—to determine what social content should appear in the areas where Google+ results are currently hardcoded. All of the information in this demo comes from Google itself, and all of the ranking decisions are made by Google's own algorithms.

If that all sounds a bit confusing, have a look at this video which does head to head comparisons of various searches using both Google’s new service and those from Focus on The User’s cheekily-named “Don’t Be Evil” tool. (Fair warning – the video 9 minutes long. That said, it makes a compelling case in that time).

It’s not hard to understand why Google’s competitors are unhappy. Knowledgeable commentators like Wired Magazine senior writer Stephen Levy have called the change a “startling transformation of the company’s flagship product, Google Search, into an amplifier of social content.” And later:

Search, in short, should appear to be like Caesar’s wife, above reproach. When using its algorithmic wizardry to deeply integrate social information into its search experience, it behooves Google to avoid even a whiff of bias. With SPYW, though, the odor is unmistakable. No matter how you cut it, the search engine now increases the value of participating in Google+.

Likewise, Canada’s Mitch Joel recently commented on the changes as follows:

At this point, comparing Google+ to Facebook and Twitter is probably a silly notion simply because Google has the ability to make Google+ the underlying social platform within its many applications (Android, Gmail, Google Docs, Picasa, Google Maps, Google News, YouTube, etc. -).

Joel goes on to say that for business, this means it’s “critical” to ensure your Google+ business page is up to date and comprehensive.

For many firms that already struggle to find the time, resources or inclination to keep their firm website somewhat current, the notion of piling on additional content-creation and site-updating duties hither and yon all over the web seems frivolously extravagant, naively unattainable, or both. But those pesky Alexa stats don’t lie. Social media isn’t going away – it’s getting stronger, and the divide between the firms who “get this stuff” and those who don’t is becoming sharper. Google+ has the potential to widen this divide even further, and very few Canadian law firms are doing anything on this platform yet. Firms that want to remain (or become) highly visible online may not have the luxury of abstaining much longer.

The Quebec Bar Association last week published its first annual report card on the rule of law in the province, or Bilan de l’état de droit au Québec (in French only).

In the report, the Association summarizes its public interventions over the past year.

But what appear fairly unique are its efforts to measure the level of respect for the "rule of law" by authorities in the province and in Canada according to 4 criteria:

• public authorities and their representatives are subject to the law and courts are independent
• the protection of rights and freedoms of all citizens is assured
• the laws are stable and predictable
• access to justice is affordable

Overall, the Quebec Bar concludes that citizens of the province can have confidence in the rule of law in Quebec and Canada.

But there are grounds for worrying that certain rights are being eroded, states the report. And, according to the Bar, on certain occasions, the State has departed from respect for the rule of law.

The report mentions:

• reform of the Criminal Code (in particular, the proposed expansion of mandatory minimum sentences is criticized for threatening the ability of judges to make sentences correspond to the individual circumstances of each case)
• the growing "trivialization" (banalisation in French) of immunity from prosecution of certain categories of citizens and organizations, usually for economic reasons. The report mentions legislation that eliminated the right of citizens to sue snowmobilers or off-road vehicles for nuisance or damages to their property. It also refers to the proposed bill that would protect the City of Quebec from ever being sued over the building of a new sports/entertainment amphitheatre
• diminishing access to justice due to rising legal costs

It will be interesting to see if the idea of annual reports on respect for the rule of law spreads to other provinces and territories.

Before I embark on a brief exploration of whether clinical legal education can provide a solution to two difficulties facing the legal profession in Canada today, I must first make a disclosure. I am a big proponent of clinical legal education and as the incoming director of an excellent clinical program at the University of Victoria I have witnessed first hand the numerous benefits that this manner of education can have to students, the profession and the community as a whole. This experience allows me to approach this discussion not only from the perspective of a lawyer and consultant who has an interest in the future of the legal profession, but also from the point of view of an academic. In my experience it is often the disconnect between these two perspectives that is a cause for conflict and I hope in this discussion to move past this issue and establish that the expansion of legal clinics in Canada are in the interests of both the profession and the academy.

Before I embark on this discussion however, it is useful to provide some background. Clinical legal education took root in North American in the early 20^th century when the first law schools in the United States recognized the need to supplement the case book method of legal education with the type of practical experience gained through the apprenticeship model that was the predominant legal education model in Europe at the time. This led to early clinics being established at universities such as Northwestern Law School and Yale. In the years following, law school clinics expanded throughout the United States and have since become an integral component of the law school curriculum across the country. The history of law school clinics in Canada reveals that their development is much more recent and in this country the integration of legal clinics into law schools has been a slow and measured process. Despite this, there are currently a variety of excellent legal clinical programs found at law schools across the country including the Business Law Clinic, Environmental Law Clinic and Law Centre at the University of Victoria, the Law Students Legal Advice Program at the University of British Columbia, the Osgoode Hall Community and Legal Aid Services, the University of Toronto Downtown Legal Services and many others.

In addition to the existence of numerous clinics across the country, the recognition that Legal Clinics have an important role to play in the education of young lawyers in Canada can be seen by the recent establishment of the Association for Canadian Clinical Legal Education. This organization, composed of clinical legal educators from across the country, was formed in part to provide a forum for legal educators to share best practices and to encourage the promotion and improvement of clinical legal education in Canadian Law Schools. Having witnessed first hand the many positive aspects of clinical legal education through my involvement with the Business Law Clinic at the University of Victoria I share the enthusiasm of the Association for clinical legal education and feel that this type of education experience can assist the profession in dealing with a number of pressing issues including calls from the profession for better-prepared students and the delivery of legal services to those who may not otherwise be able to access them.

Calls from the legal profession for better-prepared students – There is a growing voice within the legal profession in Canada for changes in the manner that law students are educated. This voice arises from the feeling that students are sometimes not adequately prepared to take on the duties of an articled student and eventually called lawyer once they have completed their legal education. While this perspective may be contentious, it is my personal opinion that there is a valid point to be made regarding the preparation of law students that must be explored. Movement towards setting some minimum standards across the country for legal education are afoot with the Federation of Law Societies of Canada recently proposing a new set of standards to ensure the entry level competence of newly called lawyers that includes the introduction of certain required courses at law school. These standards have been met with criticism from academics who, among other points, maintain that it is not the role of the profession to dictate the educational standards of law schools.

While this may be a valid perspective, it is my point of view that law schools in Canada should not be blind to the fact that the overwhelming majority of their graduates join the profession and have come to law school with the express purpose of learning the skills necessary to do so. In this regard, clinical legal education for upper level students can play a valuable role in preparing students for practice. Law school clinics allow students to apply the theoretical knowledge that they have obtained through class work in a safe and properly supervised environment. This practical application not only strengthens the lessons learned in foundational courses, but also allows students exposure to areas such as ethics that are difficult to fully appreciate in the abstract.

I am very curious to hear the perspectives of those in the SLAW community regarding the role of clinical legal education in Canada and encourage comments below to share your thoughts.

In part 2 of this exploration of law school clinics, I will discuss how the expansion of clinical legal education in Canada can play a valuable role in meeting the unmet demand for legal services that currently exists in the country.

CanLII President Colin Lachance has just now released his plan for that organization's next three years. "Strategic Priorities 2012 to 2014" is available in a variety of formats: HTML, PDF, and large print PDF. Versions in French are also available, of course.

The report elaborates on four strategic priorities for CanLII:

1. Secure permanent role as foremost source of free law in canada.
2. Continually enrich content to meet the needs of public and professional users.
3. Deliver easy to use professional grade tools and a compelling site experience.
4. Continuously promote and defend free access to law

As readers will likely know, CanLII receives from Canada's courts and justice departments a welter of documents under a variety of terms and conditions:

CanLII will seek to bring as much of that content as possible within a common contractual or policy framework guided by principles of open access and fair dealing.

In addition, CanLII will, among other things:

• seek "supplementary funding" to add to the $34 per lawyer base it currently receives;
• consider incorporating secondary sources and facilitating searches of materials hosted elsewhere;
• improve access to the service for users of mobile phones;
• develop "tools, tips, and training" to make research easier;
• continue to support free access to law here and elsewhere.

Lachance is seeking feedback and can be reached at clachance @ canlii.org

According to the Canadian Charter of Rights and Freedoms (Section 15 (1)):

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Of course, and unfortunately, this is not always the case in practice. Many people continue to deny others equal treatment, intentionally and not. Law Times offers a recent example of alleged systemic discrimination; the case Law Society of Upper Canada v. Selwyn Milan McSween raises the question of whether racism hinders black lawyers’ participation in big law firms in Ontario. I am sure this problem is not exclusive to big law firms or Ontario.

Selwyn McSween is a black lawyer found guilty of professional misconduct for “completely abdicating his professional responsibility” to an allegedly unscrupulous law clerk, in the opinion to the Law Society of Upper Canada. However, dissenting appeal panellist Clayton Ruby stated:

We cannot close our eyes to the disproportionate number of black lawyers whom we find before us faced with very grave professional misconduct allegations. …

The legal profession has made no concerted effort to rid itself of the racism inherent in the practice. The effects of racial inequality are real, not imagined, and we do the public no favour by refusing to acknowledge them.

Ruby suggests that the reason black lawyers face increase disciplinary charges is that minority groups have fewer and less meaningful articling opportunities to gain experience compared to “non-racialized” lawyers, law students and others in the profession.

The Law Times article refers briefly to a 1999 report on Racial Equality in the Canadian Legal Profession by the Canadian Bar Association, and I was curious.

According to the report:

Systemic racism or institutional racism is not about individual malice. It is about the way seemingly neutral values and practices can inadvertently serve to promote discrimination. It is about how the legacy of historic discrimination can continue to thrive in our midst.

The report’s authors clearly recognized that, at that time, law graduates from minority groups had poorer opportunities than non-minorities. Such graduates did not get the much-needed training and experience that their white counterparts received to succeed in the practice of law. I wonder what steps the Law Society of Upper Canada, the Department of Justice, the law schools and other decision makers have taken, given the findings of the report. Did they follow the strategic steps and recommendations? I guess not really, if we accept Ruby’s statement.

It would be interesting to know how the law society and the other groups received the report, and a follow-up report on the steps taken would have been very helpful!

As a lawyer who is also black (though that is not all I am, and I do not define myself by the colour of my skin, which by the way is brown not black), I see that systemic racism in law firms is unfortunately still a reality and not merely a perception. However, it is not only in law firms, but in many other industries and professions. I would also say that it is worse for black men than for black women.

This said, not all black lawyers are lacking experience in the practice of law, nor can we say all black lawyers do not obtain meaningful articling opportunities. Many lawyers who also find themselves referred to as blacks have succeeded in the legal profession. I can further add that some progress has been made to include more lawyers who are black in the legal profession; however, not enough.

In my view, these advancements are based on tolerance, not on totally removing the prejudiced policies, practices, perceptions, stigma, stereotypes and ideas about people who are black that continue to thrive in society, law schools and law firms. No matter the colour of our skin, it is not something we can change. It will always be with us and will be the first thing an interviewer will see, no matter whether we are the most experienced, the most qualified or the best candidate.

Tolerance has not been a final solution, but a precursor of continued racism.

I can also say these advancements are to meet diversity goals to show the public how multicultural a firm is, or to meet employment equity requirements, not solely with the intention of truly removing barriers that stop racism. Please note, having to state in an application form that you consider yourself part of a visible minority does not help, or reassure me that I will be considered so that you can meet your diversity goals or employment equity requirements.

At the same time, lawyers who also find themselves to be black have a responsibility to obtain the experience they need to become lawyers, especially if they have to become sole practitioners because law firms won’t hire them. Articling, although required, is not the only way to gain experience. Black lawyers’ the main concern should be getting their degree, learning as well as they can, practicing law and being the best lawyers they can be.

Not getting a good articling experience because you are black is a real problem that needs to be dealt with but not a good reason to become guilty of professional misconduct.

To gain knowledge and experience before I graduated, I volunteered in associations and legal centres. After I graduated, on top of articling, I sat in court most days watching how lawyers pleaded their cases. I talked to other lawyers and judges. Judges were the most willing to guide me. I read on the developments of legislation and case law at least three hours every day, and still do. I went to conferences, seminars, courses and workshops on the topics of law I wanted to specialize in. It takes work, but you need to look beyond the colour of your skin, even if others insist that you do.

But I still have to wonder, why would systemic discrimination still exist in law firms? Within organizations who are there to protect the public and the practice of law? Doesn’t the legal institution exist to uphold and apply the law without any prejudices?

So what do members of the Canadian Legal Profession and decision-makers intend to do about this?

[And by Meredith James]

According to Natural Resources Minister Joe Oliver,

Anyone looking at the record of approvals for certain major projects across Canada cannot help but come to the conclusion that many of these projects have been delayed too long. In many cases, these projects would create thousands upon thousands of jobs for Canadians…Unfortunately, there are environmental and other radical groups that would seek to block this … Their goal is to stop any major project no matter what the cost to Canadian families in lost jobs and economic growth. No forestry. No mining. No oil. No gas. No more hydro-electric dams.

These groups threaten to hijack our regulatory system to achieve their radical ideological agenda. They seek to exploit any loophole they can find, stacking public hearings with bodies to ensure that delays kill good projects. They use funding from foreign special interest groups to undermine Canada’s national economic interest….

The regulatory system, he concludes, is broken. “It is time to take a look at it. It is an urgent matter of Canada’s national interest.”

What sparked Minister Oliver’s anger? The fact that more than 4,300 people signed up to make submissions to the Joint Review Panel considering the proposed Enbridge Northern Gateway Project, two giant pipelines to carry petroleum from Alberta’s oil sands through the British Columbia mountains to a port in Kitimat, BC., for shipment by tanker to Asia. The Joint Review combines Environmental Assessment (EA) with the economic and commercial issues normally decided by the National Energy Board. The public hearings are scheduled to wrap up by July 2012, but may now take longer.

What is the role of the public in the hearings?

The importance of the public in EA processes is set out in the Canadian Environmental Assessment Act (CEAA) itself. The preamble and purposes of Act set out the federal government’s commitment to facilitate public participation in EA by “any person”. In the often quoted Supreme Court of Canada decision Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 SCR 3, Justice La Forest wrote that environmental assessment is a planning tool that has “both an information gathering and a decision-making component which provide the decision maker with an objective basis for granting or denying approval for a proposed development.” The public contributes to the process both by providing information and by helping to define the public interest.

Public concerns from outside Canada can legitimately help with both these objectives. For one thing, one of the purposes of CEAA, set out in section 4, is “to ensure that projects … do not cause significant adverse environmental effects outside the jurisdictions in which the projects are carried out”. Who better to explain to the Panel these extra-jurisdictional effects than those who will be affected by them? And many people outside Canada will be affected by projects, like Gateway, that can materially increase climate change.

As to foreign funding, why would it be ok for foreign-owned multinationals to spend their money promoting the project, while denying foreign donors the right to give money to question the project? Since the issues to be addressed are complex and Canadian intervenor funding is limited, foreign donors may be essential to fund the research and representations that the Panel should hear.

Public interest standing before the courts: is it different?

The courts have struggled with somewhat similar issues (e.g., cost, delay, whose voices should be heard?) in assessing who should have public interest standing before them. As Justice Cory wrote in Canadian Council of Churches v. Canada (Minister of Employment and Immigration) [1992] 1 SCR 236:

It is essential that a balance be struck between ensuring access to the Courts and preserving judicial resources. It would be disastrous if the Courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by well-meaning organizations pursuing their own particular cases, certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants.

In Shiell v. Atomic Energy Control Board, 98 F.T.R. 75, Ms. Shiell sought judicial review of an amendment to Cameco’s operating license for a uranium mine and mill. The court found that, despite her genuine interest and concern about radiation and radioactive waste, she lived several hundred miles from Cameco’s facility, and had no direct personal interest in their operations. The amended license would not affect her differently than any other members of the general public, and so she was denied standing.

On the other hand, in Citizens' Mining Council of Newfoundland & Labrador Inc. v. Canada (Minister of the Environment), [1999] F.C.J. No. 273, the Council did get standing to challenge the Minister’s decision to assess a mine and mill proposal separately from a smelter and refinery proposal. The proponent argued that the applicant could not demonstrate “a real and continuing commitment to environmental issues raised by the developments … given that it was incorporated only three months before these proceedings were commenced, and it had less than a $100 is assets in the month following the commencement of the proceedings.” It argued that the coalition was “merely a shell company formed for the purposes of this litigation” and would not “be subject to any direct impact from the proposed projects that is distinct from the impact on the public at large.”

The Federal Court decided that the applicant raised a serious issue, and that it had a genuine interest in environmental protection. The Council was the only public group to demonstrate sufficient interest and means to mount a court challenge. It was formed “to express a communal concern and to challenge decisions that might otherwise be essentially beyond review.”

The courts can justify keeping a tight rein on intervenors, but good EA requires approval processes for major projects to be open to all. First, hearing participants do often express a communal concern and challenge decisions that might otherwise be essentially beyond review. Second, public hearings are focussed on major aspects of the public interest, and on the proper use of public resources, not on a private dispute between litigants, whose rights should take precedence. Third, the Panel’s mandate is to come to a substantive conclusion while the Court’s role is to protect procedural fairness. Fourth, the governing laws for a public hearing (such as CEAA) are built around a broad role for the public. Fifth, the Panel will make a better decision if provided with a full range of information and perspectives. And sixth, broad participation in the hearings is essential to the legitimacy of the ultimate decision.

Conclusions

In our view, the regulatory system for approving major projects may be broken, but not because of foreign donors or participants. There is a fundamental disconnect between governments and proponents (who usually think of EA as an obstacle, relevant only to how to build a project) and environmental, community and aboriginal groups (who often focus EA on whether to build a project). Everyone is frustrated:

• proponents, because the hearings take so long and cost so much, and because applications are occasionally rejected or delayed (eg Keystone XL); and
• Members of the public, because almost everything is approved, regardless of the evidence they offer.

Gateway is almost certain to end up in the courts, if for no other reason than the large number of overlapping aboriginal claims, which the government will find it hard to steamroll. But Minister Oliver has signalled that his government will do whatever it can to make resource project approvals faster, whatever the cost to the theory or practice of EA. Are allegations of foreign interference just a smokescreen for whatever is coming next?

Those of you on CALL-L will already know this, but the website for the annual conference was launched yesterday. It's hard to imagine, but we're already less than 90 days away from the start of the conference!

The Conference Planning Committee and the many volunteers for the subcommittees have been busy, but now the energy is really building! The program is set, social venues booked and we've submitted our request for decent weather.With the kind of weather we've been having in Toronto this winter, I have no idea what to expect in May.

Special thanks has to go out to our sponsors, who are unfailingly supportive of the Association.

The pdf version of the Registration form is on the site now, and we hope to have electronic registration activated in a very short time. The early bird closes March 16. so those of you with bureaucracies to deal with, start now.

I should also remind you that if you plan to stay at the Royal York, our conference hotel, and wish to have free wifi during your stay, you should register immediately for their President's Club. Registration is free, and gets you internet access from your room without charge.Don't forget to mention the conference's name when you're booking your room, so that you benefit from our guaranteed rate.

We're so looking forward to seeing everyone May 6-9! Hope you can join us to explore the Towering Opportunities / Possibilités Immenses in Toronto!

Recent research published by industry analyst Gartner shows that the business process outsourcing sector will expand by 5 per cent in 2012, with multinational companies leading the charge. Business process outsourcing is seen by many companies as a means of reducing costs. Companies have been engaging in outsourcing (both information technology and business process services) for many years. Use of foreign-based third party service providers is also not new. While many of the issues are not unique to offshore outsourcing engagements, offshoring highlights the importance of some of the challenges.

Companies have been outsourcing various types of business processes to offshore service providers, including employee benefit administration, payroll processing, customer support, insurance claim review, credit card processing, mortgage servicing, or tax return administration. Sometimes outsourcing arrangements involve disclosing large volumes of personal or sensitive information to service providers. There have been incidents where employees of offshore suppliers misused the personal or sensitive information entrusted to them as part of the outsourcing arrangement. While data privacy incident may occur anywhere, customers have less control when service providers are located in another country. Privacy and security requirements are key consideration in any offshore outsourcing arrangements. It is important for customers to include provisions that require service providers to implement and maintain security measures that are designed to safeguard customer information.

Offshore outsourcing also involves the risk of potential applicability of foreign jurisdictional law to the outsourced activities. A company located in Canada may decide to outsource its back office processing function to a service provider at an offshore location. The arrangement may involve sending personal information of Canadian customers to the service provider’s data centre in the United States. The data may be backed up in Europe and processed by the service provider in Asia. Since different countries have different approaches to privacy, the requirements of each jurisdiction must be considered. Companies that engage in offshore outsourcing should consider how foreign data privacy laws or regulatory requirements may interact with the domestic privacy laws and regulations and how any possible conflicts can be managed.

There are also country risks (social, economic and political instability) involved in doing business in certain countries. For example, escalation of the India/Pakistan conflict, potential terrorist attacks, civilian unrest, acts of war which could prevent the offshore service provider from delivering the services. If the outsourced function involves critical business operation, customer needs to develop plans to actively monitor the country risk, develop its own contingency or resource backup plan, and build in mechanism in the outsourcing contract to deal with the contingency plans and exit strategies. While service providers always have business continuity plan, customer needs to examine the plan to determine how it works with customer’s continuity planning and to assess the likelihood that the service provider will be able to implement its plan when required. For example, a contingency plan that moves workers from one region to another (or even from one country to another) may be difficult to implement. The contingency plan needs to be tailored according to the nature and criticality of the work being performed at the offshore location, the complexity of the work, and the onsite/offshore staffing ratio.

I have a tendency to want to keep my gravy out of my peas — control issues, I know. This makes me work to keep my social media in silos as much as possible, fearing, I suppose, the further loss of privacy if Facebook gossips to Twitter about me and vice versa. The devil — or the deity, if you prefer — is in the intersections, the linkages, the relationships.

This desire for some crafted anonymity or at least a tad of privacy is a forlorn hope, I realize, if I'm online and tweeting, blogging, "plus"-ing and the like, whether or not the right hand knows what the left hand is doing. And it seems that folks younger than me, which is to say most folks by far, are blithely uncaring about privacy when it comes to social media: the more the merrier and let it all connect.

In that spirit, IFTTT ("if this, then that") has launched an intriguing set of functionalities that allow you to explicitly establish linkages among your online activities to suit your particular needs. These linkages are, in effect, simple programs established on the coding model "if this, then that." So, for example, I can tell IFTTT that if I star an item in Google Reader, then send a note of that item to my Evernote account; or, if my Facebook profile picture changes, then change my Twitter photo to the new one also.

The units that you get to control are your social media accounts, which IFTTT calls "channels," and there are some 40 of them (Twitter, Facebook, email, LinkedIn, your telephone, etc. etc.). Channels are connected via "recipes," IFTTT's term for the condition and action parts of the program. There's no list of which actions are available or permissible, so far as I can tell, though there's a long list of "recipes" cooked up by others that will give you a pretty fair idea of what's possible. As you build your own recipe, the site offers you the various options available. When you've done, you've created a "task" that will execute itself.

I've only begun to explore what might be useful to me or, indeed, to those in the legal professions. But off the top of my head, it seems that you might want to keep a record of your tweets (which Twitter won't do for you); in which case a task that archives your tweets to another app so that you've got a good record of what you've said and when you said it might make sense. (As might the ability to trigger your phone to ring when you send a text message — if you find yourself in a lot of meetings.)

Take a look at see what you can come up with. Let us know by way of a comment if you cook up a recipe that might be of interest to others. Peas can taste good with gravy on them.

With Parliament back in session, we are seeing more attention on the proposed "lawful access" legislation. There is good reason for that. Many of us believe the proposed legislation is an affront to privacy, and gives law enforcement overly intrusive rights without court supervision that will in practice be no more than expensive, invasive, privacy offensive security theatre.

In this CBC interview, Ann Cavoukian, the Ontario Privacy Commissioner, does an excellent job of explaining the issue. Well worth investing 7 minutes to watch.

This is the second in a series of columns about developing a library collection development policy. In my last column, I addressed some of the issues surrounding monographs. In this column, I’d like to consider journals, how they’re used in legal research today both in practice and in law schools, and their place in a contemporary law library collection.

Journals vs Serials

I’ve purposely used the specific term “journals” rather than the broader term “serials”. Serials are any publication that is issued either periodically (daily, weekly, monthly, etc) or serially in successive discrete parts, the publication of which is normally intended to be indefinite. The serial format includes not only journals, but also law reports, statutes (not least of all annually-published statute consolidations and annotations), citators, looseleafs and other supplemented books, magazines, newsletters, annual reports or proceedings, directories, newspapers and more. In this column, I will consider journals only, which I define as serials publications with a distinctive title, containing a mix of articles by more than one contributor, issued at regular stated intervals, the individual issues usually paginated to constitute distinct volumes.

Academic vs Professional Law Journals

In law, as in other professions, there are two kinds of journals, distinguished by their content: academic journals (eg, Osgoode Hall Law Journal, Alberta Law Review), aimed primarily at a scholarly audience, and professional journals (eg, Canadian Bar Review, Canadian Business Law Journal) intended for practitioners. Both types of journal can be peer-reviewed and contain articles of scholarly merit, the product of extensive research.

The distinction between academic and professional journals is often blurred and both types can be of equal interest to both academics and practitioners – at least, this used to be the case. As the legal academy becomes less focused on teaching for practice, scholars seem less interested in law’s professional journals. For a program on “writing for publication” being organized for students by one of our faculty, I once suggested inviting an editor from a Canadian law publisher with an extensive list of professional journals; I can still remember how the suggestion made the faculty organizer’s nose wrinkle. In the end, the roster of speakers was exclusively academic. Likewise, many academic journals have become increasingly specialized, esoteric and, however interesting to enquiring minds, irrelevant to the practice of law.

Commercial vs Non-commercial Law Journals

In North America and Australia, academic law journals are usually, though not always, published by law schools; in which case, and especially if edited by students, they are generally referred to as “law reviews”. One of the advantages of law reviews is that they are relatively inexpensive to subscribe to; and increasingly, as a consequence of the Open Access movement in scholarly publishing, these journals are even available free on the web either on a standalone website (eg, Harvard Law Review) or on their home institution’s open journal system (eg, Fordham Law School’s Institutional Repository). Canadian law schools have been slower to go “open access”: Currently available open-access and online are the Manitoba Law Journal, McGill Law Journal, Osgoode Hall Law Journal, Ottawa Law Review, and the University of Alberta’s Constitutional Forum and Review of Constitutional Studies. (We can now add to this list Western Law’s new student-edited law review, the Journal of Legal Studies, which has just started publication and as an open access journal.)

In Britain and Europe, on the other hand, almost all academic law journals are commercially-published and, compared to North American law reviews, expensive. Needless to say, none of them is available open-access. Similarly, almost all professional law journals are commercially-published and expensive; indeed, they are often very expensive, especially those aimed at commercial, corporate/securities and intellectual property practices. There are some happy exceptions to this rule. An exception on both counts is the Canadian Bar Review, published by the Canadian Bar Association and available free on the web to all members. (Why it’s not free to everyone is a question that should be asked.) Similarly, the Canadian Tax Foundation’s Canadian Tax Journal is also available free on the web. Members of professional associations and special interest sections will usually receive free access to their online publications with their memberships. (Unfortunately, most associations will not allow members’ law firm libraries to access their online publications for free, an irksome and unnecessary restriction.)

One wonders why commercially-published journals are so expensive. The authors who submit their articles for publication in law journals, whether practitioners or academics, generally do not expect to be paid. I don’t know any authors who have been paid for or collect royalties from their published journal articles. (One wonders where the royalties collected by Access Copyright for every article photocopied at a Canadian university are going: to the publishers?) Practitioners who publish often do so as a means of marketing their services, and academics, of course, have to “publish or perish”. The concept of collecting royalties is contrary to the ideals of the Open Access program. Many question whether academics, as well-paid members of the public sector, should be allowed to claim copyright in their published works. (See also Steven Shavell’s article, “Should Copyright of Academic Works Be Abolished?” Harvard Law and Economics Discussion Paper No. 655.

I don’t like to obsess about the cost of commercially-published journals; publishers are entitled to make a profit. Still, in the end, journals seem like bad value compared to what we pay for them. The annual subscription cost for a law journal comprising at year’s end one slim volume is often three or four times as much as the cost for a considerably larger book; and though there are no royalties or author payments to make, and production costs continue to decline and editors’ salaries are flat, annual subscription rates continue to increase at accelerated rates. To these actual costs must be are added a library’s hidden costs to receive, process, circulate and shelve each issue of each journal, to track and claim for missing issues, to bind completed volumes, and to store them in our libraries, where they occupy increasingly more and valuable space that could be put to more active and constructive use. Is it any wonder that a disproportionate and growing portion of strained library budgets is being consumed by journals, and we would rather not have to deal with them?

Other Criteria for Evaluating Journals

Cost is not the only criterion when evaluating whether or not to collect a journal. The first consideration will always be the relevance of the journal to the firm’s practice areas or the school’s curriculum and faculty research activities. Equally important will be a consideration of the journal’s intended audience: general/specialist, academic/practitioner, introductory/advanced, etc. The publisher or issuer’s reputation also merits consideration: the regular perusal of one expensive journal from a well-regarded and reputable publisher can make the difference between professional diligence and negligence. Finally, we will want to consider whether and where a journal is indexed and whether we have access to that index. Without indexes, it impossible to find and use in research the contents of the journals we pay so much to collect.

Lastly, a library must determine whether to subscribe to a journal in print or electronically, which will be the topic of the next part of this column.

Here are the three most-consulted English-language cases on CanLII for the week of January 24 – 31.

♨ 1. Jones v. Tsige 2012 ONCA 32

[1] Does Ontario law recognize a right to bring a civil action for damages for the invasion of personal privacy?

♨ 2. Pottruff v. Don Berry Holdings Inc. 2012 ONSC 311

[1] The defendant brings this motion to have two documents, and any copies in the possession of the plaintiff, returned to it. As well it seeks a declaration that the documents cannot be referred to in this litigation because of solicitor and client privilege.

[2] The plaintiff brings a cross motion seeking a declaration that the documents are not privileged and can be utilized as the plaintiff sees fit.

♨ 3. Dale v. The Toronto Real Estate Board 2012 ONSC 512

[1] This is a motion to strike out a Statement of Claim. The plaintiffs have commenced an action for damages in the amount of $540 million against the 49 defendants. Essentially, the plaintiffs claim that the Toronto Real Estate Board (TREB) and its officers and directors (collectively the TREB defendants), together with the Canadian Real Estate Association (CREA) and its officers and directors (collectively the CREA defendants), breached the terms of an earlier settlement agreement, violated the provisions of the Competition Act, R.S.C. 1985, c. C-34, unlawfully conspired together to injure the plaintiffs, and wrongfully interfered with the plaintiffs’ economic and contractual relations. This was all done, according to the plaintiffs, in an effort to drive Realtysellers out of the real estate business and punish the plaintiffs for making complaints about them to the federal Competition Bureau. The plaintiffs also seek punitive, aggravated and/or exemplary damages in the amount of $10 million against the defendants.

The most-consulted French-language decision was Crevette du Nord Atlantique inc. c. Conseil de la Première Nation malécite de Viger 2012 QCCA 7.

[1] L'appelante se pourvoit contre un jugement rendu le 18 juillet 2008 par la Cour supérieure, district de Kamouraska (honorable Claude Henri Gendreau), qui a accueilli en partie la requête introductive d'instance de l'intimé en revendication, en injonction et en dommages-intérêts.

A couple of weeks ago the academic library blog and twittersphere was ablaze reacting to a tweet that “[a]ll of Harvard library staff have just effectively been fired”. As more news came out of a January 19 Harvard town hall meeting it appears that the reorganization at Harvard will not be that extreme – but these will be very challenging times for the Harvard library. The Chronicle of Higher Education has a nice short piece on this situation here. The text of the presentation that sparked the reaction is here. More news is expected next month.

An obvious question is what this type of restructuring may mean for other academic libraries. My gut sense is that Harvard is so big and so different than most academic libraries that their issues are not the same as most. Were many academic law libraries inspired to follow John Palfrey’s approach to restructuring at the HLS library? Academic libraries (not to mention private law libraries) have been quite nimble in facing (and leading) the challenges of the digital age. Perhaps the Harvard situation is more of an example of how much more challenging it is to change the direction of a huge ship than a smaller one.

In any case it will be interesting to see how this proceeds and its impact on libraries and research.

Last week the Federal, Provincial and Territorial Ministers of Justice met in Charlottetown for an annual conference started four decades ago by then Minister of Justice John Turner. With the big price tag attached to the federal government's omnibus crime bill C-10 and budget cuts on the horizon, there were no significant spending commitments by the federal government.

Legal aid is still on the agenda at these meetings, but barely. By my count, it is item number 16 out of 19 in the post-conference communiqué. Here is what the carefully-crafted language said:

Ministers affirmed their commitment to a responsive, fair, efficient and accessible justice system which includes access to legal aid and referenced the common statement of principles approved in October 2010. Provincial and territorial ministers asked the federal Minister of Justice for continued and enhanced federal funding support for criminal legal aid to address the continued pressures faced by all legal aid programs. They asked for early confirmation of the level of federal funding given that existing agreements expire at the end of March 2012. Provincial and territorial ministers also noted the need for renewed and enhanced funding for immigration and refugee legal aid for those jurisdictions offering such services

In a post last month, I reviewed efforts by former Minister of Justice to establish a national legal aid plan. In a time of budget cuts, we cannot expect that governments will invest in legal aid and access to justice. Solutions must come from us, within the legal profession or else we will wait while Ministers continue to "affirm their commitment" to an accessible justice system which includes access to legal aid.

The state of Indiana may soon become the 23rd state in the US to adopt right-to-work legislation. With the Senate Committee having already passed the Bill, it will go to the full Senate. If there are no amendments, the governor of Indiana could be signing the Bill as early as tomorrow (see a news article here).

Back-to-work legislation prohibits contracts between employers and unions which require all employees to pay union dues as a condition of employment. As such, this type of legislation gives the non-member employee the option of paying union dues (or not). Supporters of this type of legislation believe that it makes the market more competitive and brings greater investment into the state. Those against right-to-work legislation see it as the government's attempt to "bust" unions and will lead to lower wages.

In Canada, we have the Rand formula which forces all employees, whether members of the union in place or not, to pay union dues, as it is considered that all employees benefit from the negotiated terms and conditions of employment. The Supreme Court of Canada has already decided that the forced payment of dues does not constitute a violation of the freedom of expression and that if there were a violation of the freedom of association, it was saved by section 1 of the Canadian Charter of Human Rights and Freedoms. In a day and age where the role of the trade union is questioned, would or should right-to-work legislation have a place in Canadian labour law?

It just so happened that as Slaw columnist Ed Prutschi's "Crime & Punishment in 2012" appeared today, I received the latest emailed copy of Criminological Highlights from the University of Toronto's Centre for Criminology and Sociolegal Studies. I thought I'd pass on the link to those of our readers who are interested in criminal law or the intersection of law and social behaviour.

Criminological Highlights is a digest of selected academic articles,

designed to provide an accessible look at some of the more interesting criminological research that is currently being published. Each issue contains “Headlines and Conclusions” for each of 8 articles, followed by one-page summaries of each article.

The current issue, for example, addresses the following questions:

1. Are long sentences more effective than shorter sentences in reducing reoffending?
2. Why do western countries vary in their imprisonment rates?
3. Do intensive foot patrols reduce crime?
4. Does being apprehended and arrested for a crime act as a deterrent?
5. Why aren’t people deterred by harsh sentences?
6. Will new and better community sanctions reduce imprisonment?
7. How is a period of imprisonment more punishing for Blacks than Whites?
8. Do trustworthy looking people have an advantage at trial?

These are the sorts of issues, I think, that it might be useful to learn about as we proceed with the contentious omnibus crime bill in Parliament.

I have the pleasure of attending LegalTech 2012 in New York this week. Though I came to NYC to talk to vendors of legal technology products as my primary purpose, there have been some interesting learning opportunities as well. One session I attended yesterday was titled "Talking Technology to Lawyers".

The session was moderated by Gina Buser of Travelling Coaches. Panelists were all Chief Informatin Officers at large US law firms: Bob Dolinsky, Terry Pressley, and Kirk Scruggs. Thpugh their titles were the same, their approaches to speaking about technology to lawyers differed. My impression of the panelists was simplified in my notes like this:

• Bob sells tech to lawyers with the value proposition
• Terry sells tech to lawyers with relationship building
• Kirk sells tech to lawyers with service oriented attitude

These gentlemen use different approaches to achieve the same desirable goals. Advancing technology projects within their organizatins to meet the needs of their internal clients, lawyers and staff, who are in turn, working toward the goals of their clients and their firms.

Some things that worked for them include being prepared, building trust and relationships with lawyers, and aligning their groups goals with the core values of the firm, and managing user expectations with concise, plain language communications. The consensus was that over communication was better than too little information sharing.

All the LegalTech sessions have been interesting so far. Follow along on Twitter with #LTNY.

It’s that time of year again. Judges and lawyers have returned to court sporting freshly bronzed bodies, and Ontario’s RIDE program has tucked away the bulk of its breathalysers until the summer cottage season. A perfect time to transition from reflections of the past to contemplation of the future. And so I bring you my second annual Crime & Punishment Predictions. (If you’re wondering how plausible a prognosticator this Prutschi fellow is, you may peruse my previous perennial predictions here: http://www.slaw.ca/2011/02/07/crime-punishment-in-2011/). 

5. A Return to the 11(b) Crisis

For nearly a decade appellate courts have been discreetly warning their trial-level cousins that the guidelines for tolerable trial delay at both the Provincial and Superior Courts are supposed to be inching downwards. The rationale is obvious: since the crisis of long-delayed trials first identified way back in Askov, many years have passed but the expectation of a steadily declining backlog has failed to materialize. Ontario is stumbling along with its ‘Justice on Target’ plan that has seen improvements in some jurisdictions offset by missteps in others. Dramatic changes to the Criminal Code discussed below will also pile on more trials to a system already heaving on the verge of collapse. I expect to see substantial litigation surrounding trial delay in 2012.

4. Reefer Madness

A majority of the Canadian public remains blissfully convinced that Canada is soft on minor marijuana charges. With current and former Vancouver mayors arguing very publically for legalization, you can’t blame Joe Public for thinking cops don’t care much about weed, but you may be in for an unpleasant New Year’s surprise. In addition to draconian new sentencing provisions tucked into the Omnibus crime bill for small grow-ops, in Ontario I have noticed a very significant uptick in the number of individuals being charged for simple possession of tiny amounts of pot. While these charges are still being almost universally diverted at an early stage, previously the unstated policy on the part of police officers seemed to be to simply seize the goods from those caught with a couple of joints. Now, for reasons unclear to me, charges are in fact being laid.

3. White Collars and Prison Jumpsuits

Whatever you may think of the “occupy” movement you can’t deny that the so-called “99%” are eager to beat down the mansion doors of the so-called “1%”. The poster-children for all the evil that embodies the one-percenters are white-collar fraudsters. Our southern neighbours have long bemoaned Canada’s comparatively soft sentences in this area and the omnibus crime bill squarely takes aim at correcting that perception. A spate of new aggravating factors to be considered on sentencing relate directly to fraud cases and a two-year mandatory minimum jail sentence will be imposed on anyone convicted of a fraud involving $1,000,000 or more. A number of police task forces and crown attorney units have recently been formed specifically to tackle commercial frauds and they will be looking to make good on their mandates in 2012.

2. Constitutional Challenges to the Tory Crime Agenda

Love it or hate it, get-tough-on-crime is back in vogue. More than any other development in 2012, the sweeping changes enacted by the omnibus crime bill will undoubtedly be repeatedly targeted by defence lawyers all across Canada. Mandatory minimum sentencing provisions for certain drug offences look especially ripe for a constitutional challenge, particularly when they are applied to the mentally ill, those with drug addictions, or aboriginal offenders. I expect we will see a burst of inconsistent lower court judgments early in the new year followed by some significant appellate decisions in the spring. A date with the Supreme Court in Ottawa seems certain eventually but that’s a road that may take us into 2013.

1. Bankrupting the Justice System

Guess what eliminating 2-for-1 pre-trial credit, increased mandatory minimum jail sentences, and tougher parole laws add up to? 2012 will be the first full year we see the real price of ‘getting-tough-on-crime’ and be prepared for some serious sticker shock. The substantial shifts enacted by the government go beyond the cost of building a few more jails. In addition to all the extra time offenders will spend in prison, an unintended consequence of these provisions is to substantially disincentivize early guilty pleas. An accused who was previously eligible for a lenient sentence or who had racked up considerable pre-sentence custody could throw in the towel and make peace with Her Majesty but is now encouraged to take a shot at trial even where he assesses his own chances of winning the case as poor – if you’re getting slammed by a mandatory minimum whether you plead guilty or not, you may as well spin the wheel of justice and see what happens. Already strained budgets for police, legal aid, crowns, corrections, probation and parole will feel the sting. The feds have seated everyone at a very expensive dinner table but they appear to have ducked out the side door having only covered a third of the cheque. Provinces and municipalities will be left washing dishes in the kitchen to pay off the rest of this tab.

My post today is a question.

I recently heard an interview in which a major newspaper editor said the traditional model of "active" journalist and "passive" reader, is dead. He gave the following illustration. On the opening night of a new opera production the most experienced and highly regarded opera critic in the world can write a review for the next day's paper. It will be brilliant as usual, but it is "nonsensical" to think the other 700 people in the audience have nothing of value to add.

He likened this change in perspective to flipping a switch in our thinking. Do not think of the newspaper as being "on the web", but "of the web".

The Massachusetts Institute of Technology has made the decision to post all of their course materials on line. It is now accessible free of charge both to students and professors at other teaching institutions.

Through Galaxy Zoo "citizen scientists" take part in helping professional astronomers assemble valuable data for research and exploration.

Scientific data that gives a "leg up" to pharamaceutical companies working to develop cures, is now being posted on line by public-private partnerships that support the discovery of new medicines through open access research. The result is that cures are being developed years sooner than under the traditional model in which such data is proprietary and patented.

Does this open access, interactive model have any potential application to the provision of legal services in the civil justice system?

Who are these guys and why are they so happy? You're looking at Clio co-founders Rian Gauvreau on the left and Jack Newton (Slaw blogger) on the right; and they'll be smiling right now because they've just announced at Legal Tech that Clio has raised six million dollars in its Series B round of financing. From the Clio press release:

Clio will use this new funding to extend its product leadership position, aggressively developing new functionalities and supporting its growing customer base. In addition, the company aims to expand its footprint beyond the U.S. (which currently represents 95% of Clio’s sales) into other markets including Europe, Canada and Australia.

As the story in the Vancouver Sun explains,

Clio targets the majority of lawyers — those working solo or in small-scale firms — who want a reliable, convenient, low-cost method for managing their work flow. . . It is designed to streamline an array of tasks . . .

Our congratulations to Clio. It's great to see a company in the legal industry getting it right in these difficult times.