Blogs

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 20th 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.