The Vancouver Sun is reporting that the current government plans to introduce a Bill in Parliament tomorrow that will require internet service providers to report suspected child pornography on sites they host or that are linked from sites they host: Ottawa aims to strengthen Internet child porn laws.
The text is not available, but when considered along with Bill C-47, the government appears to be singling out the telecommunications industry to take on additional law enforcement duties. We’ve generally been technology neutral in our criminal laws, but there seems to be a trend emerging to focus on what’s online (perhaps to the exclusion of other venues for offensive activities). If it’s a good idea to report this kind of horrible activity (to the tune of multi-thousand dollar fines for failing to do so), then shouldn’t everybody have the same obligation? I’m just asking …
On the 22nd of October 2002 the evidentiary phase of GasTOPS v. MxI commenced in a regular courtroom in Ottawa Ontario. On March 23, 2006 after approximately 300 days of hearing and after approximately 2800 exhibits (70,000 pages) were entered into the record I reserved my decision. Over the next 20 months counsel submitted their written submissions (3500 pages). On September 25, 2009 I released my Reasons for judgment wherein I granted the plaintiff judgment against the defendants in the amount of approximately $11.1 million dollars.
The trial was conducted in a paperless environment and the trial record consists of electronic exhibits saved on an external hard drive lodged with the Registrar. During 2003 I authored a paper entitled “Using Summation iBlaze in the Courtroom – Better Lawyer, Better Judge, Better Justice – The Need for Judicial Leadership”[PDF]. The paper reflected my impressions part way through the trial of using electronic exhibits and creating an electronic record.
At the end of the trial and judgment my initial impressions of the value of electronic technology in the litigation process were confirmed in my mind. Over the next few months I propose to write a few entries dealing with the use of electronic technology in the litigation process and with Simon’s permission have them appear on Slaw, with the hope that such posts will spark a full discussion between the judiciary, the legal profession, academics and law students on the value and use of electronic technology in the judicial system. Such discussions will help me as a member of the judiciary and other judges consider if electronic technology can increase access to justice by reducing legal fees.
I am sure that Simon would be grateful to receive comments and other material from the judiciary and legal profession and any other interested persons on this subject which would greatly add to the discussion and assist in the determination of whether electronic technology can be a benefit to the judicial system.
I intend to write entries on:
- Access to Justice and electronic technology
- Advocacy and electronic technology
- Justice and electronic technology
- Establishing an electronic courtroom without going bankrupt
- Why most counsel and the majority of the judiciary resist the use of electronic technology to the exclusion of paper
- Persuading the trial judge to judge in an electronic environment
I personally believe that the use of electronic technology will reduce legal fees and result in better lawyers, better judges and better justice.
Justice B.T. Granger
This month our guest blogging institution isn’t a firm, but a group of judges from the Ontario Superior Court of Justice. As always, when we have an institutional guest blogger, we’ll identify the guest posts with a banner. You’ll see the one below starting tomorrow, Monday:
We hope you’ll join in and give our guest the benefit of you opinions.
Nathalie Blanchard of Bromont, Quebec, has been on sick leave for a year and a half for long-term chronic depression.
The 29-year-old woman had her benefits cut by IBM after she posted pictures on Facebook at a male stripper show, her own birthday party and on holidays. Her Manulife representative told her that,
I’m available to work, because of Facebook.
Ironically, most of these events were recommended by her physician as part of her treatment.
Depression is not like other disabilities where Facebook has been used to demonstrate lack of impairment. The complex parameters of a psychosocial condition like depression is entirely distinct from factors such as range-of-motion, flexibility, and strength that are more commonly assessed in physical disabilities.
Thomas Lavin, Blanchard’s counsel, expressed similar reservations,
I don’t think for judging a mental state that Facebook is a very good tool. It’s not as if somebody had a broken back and there was a picture of them carrying …a load of bricks. My client was diagnosed with a major depression. And there were pictures of her on Facebook, in a party or having a good time. It could be that she was just trying to escape.
We don’t know if Blanchard was bipolar, or has a chronic pain condition that may affect the presentation of her depression disorder. Although the inability to smile can lead to depression, those that do smile and possibly appear happy are not necessarily without depression.
And if we think about it for a second, Blanchard is not likely to select the photos of her sulking in the corner onto her profile. Facebook photos go through a screening process, essentially attempting to put the “best face forward.” What each person considers best, whether it’s attractiveness, professionalism, interesting, provocative, or wacky, does vary from person to person. In Blanchard’s case, where family and friends likely know about her prolonged bout with the blues, it is not unreasonable to expect her to at least try to look happy.
Here are some more established methods of evaluating depression, that long precede the use of Facebook photos:
As persuasive as Facebook photos might be to a jury, it lacks scientific reliability and validity. Insurance adjusters know this, and without corresponding clinical data to confirm any impressions, they should be reluctant to reject or terminate claims on the basis of photos alone without any context.
Notwithstanding the fine weather that many parts of the country are experiencing as November moves towards December, late November in Canada is usually a dark time for those of us with the golf bug. Into that dark, a little bit of legal light shines with the knowledge that a Happy Gilmore shot has been judicially defined.
In 2008 NSSC 280 para. 7, the Happy Gilmore shot has been defined as, “…running from five to ten feet behind the ball and hitting it on the run.” In finding that the Happy Gilmore shot breached the standard of care owed to other players the justice asserts in para.20, “I am convinced that the “Happy Gilmore” shot would have been less controllable than a normal tee shot, …because it involved a run-up to the ball (rather than an aimed shot from a stationary position)”.
But what of a “normal” stationary golf shot? Ratcliffe v. Whitehead (1933), 41 Man. L.R. 570 at 571, states that,
The person playing a golf ball should be scrupulously careful not to hit anybody, and if he does, the onus of making an explanation showing the care and caution he took is much the same as though he had thrown a stone or fired a gun. Of course, the explanation or excuse required in the case of a golf ball would be different from the case of a gun or thrown stone, but it must be remembered that in some ways playing a golf ball where others are about is more dangerous than firing a gun or throwing a stone. One is likely to have more control over the direction of a thrown stone and the direction of a gun shot. Moreover, a golf ball will go further than a stone can be thrown.
However, this does not mean that one has to fear liability because of their slice (or hook); the NSSC case (para.18)cites (1968), 67 D.L.R. (2d) 21, where “an unexpected hook of a shot by a player who usually sliced the ball was not a basis for liability for hitting another player, as it was not foreseeable that his ball would go where it did.”
As a counterpart to Simon’s post below on applying modern technology to 16th century information, I thought I would offer Pranav Mistry’s SixthSense Technology described as “a wearable gestural interface that augments the physical world around us with digital information and lets us use natural hand gestures to interact with that information.”
Doesn’t sound like much?
Watch the video of his explanations here from the TED Conferences page. I mean watch it now (a colleague just made me aware of it). It is one of the most breathtaking things I have seen and was completely shocked that I was not aware of this already (nor does it appear to have been discussed on SLAW previously). It seems so unbelievable as to be a hoax (I assume it is not).
Mistry is a Research Assistant at MIT’s Fluid Interfaces Lab.
Rather than flipping through digitized pages of Shakespeare’s original folios on your computer (which is cool enough), imagine doing so walking down the street using a scrap sheet of paper as your screen. Or imagine my typing this blog post using the wall of my local coffee shop as my keyboard. Watch the video and you will see what I mean.
One of the glories of the internet and the digital era is their ability to bring the past to us in a lively fashion. And the latest gift from the ages is the Shakespeare Quartos — the early, perhaps the earliest, published volumes of the Bard’s plays. (A quarto is a book size, coming from the fact that the large page on which the text was printed got folded four times before binding. Wikipedia is good on the topic.)
The British Library has teamed up with other institutions holding quartos to make all of them available for your perusal online. Now, this is a feast for scholars, I imagine: they can compare this version of Hamlet with that, make annotations online, and explore printed Elizabethan English in all its quiddities. For the rest of us, it’s a delight and a wonder.
 Take the first page of the first quarto (1603) of Hamlet, for instance. (Click on the thumbnail image to the left to “embiggen” it.) Check out the spelling: “Centinels” “meete” “leegemen” “peece” . . . Notice that “Tis” has no apostrophe. See that Marcellus greets Bernardo with “Holla”, as I might now greet someone in Cuba. All the “u”s for “v”s, and of course long “s”s galore. Italics used for emphasis or to treat some text differently, just as now. And — ouch! — the red British Museum stamp at the bottom, forever marring the historic page. And these are just surface matters on the very first page.
The main site lets you explore things in a variety of ways. For example, you can compare the text of various editions: Hamlet 1603 opens with “Stand: who is that? / Tis I.”; Hamlet 1604 opens with “Whose there? / Nay answere me. Stand and vnfolde your selfe.” Each portion that differs is highlighted and keyed so as to highlight the comparable portion in the comparison text. There’s a video about the archive and two about how to use it. And more.
But whatever your ultimate pleasure, I recommend that you leaf through an original quarto, as if you were there, as if it were a book from your own shelves . . .
As good as November has been to us here in Toronto, things will inevitably take a turn for the worse (I don’t ski), usually in the forms of snow and ice. And that, in turn, has us soon thinking of another aspect of Winter Law: the matter of slippery stuff on the sidewalk and the potential it creates for slips and falls.
In Toronto, if you occupy a house, you’re required under a by-law [PDF] to clear the snow and ice from the sidewalks beside the house “within 12 hours after any fall of snow, rain or hail has ceased . . .” I’ve mused from time to time about the legitimacy of this forced labour provision, because, after all, the sidewalk isn’t my land in any sense; I suppose that the argument is that it’s a form of municipal taxation, given that I could fail to do my duty, and let the city clear the walkway and then recover the cost from me; though this doesn’t quite answer, since there’s a fine for failing to clear the ice.
Luckier, then, are those who rent apartments. Under the Tenant Protection Act, 1997, S.O. 1997, c. 24[1] and associated regulations, landlords have the duty to remove “unsafe accumulations of ice and snow” from exterior common areas. Business being what it is, landlords will sometimes try to pass their burdens off to their tenants. The Ontario Court of Appeal has just released a decision on whether and when a landlord may do this with respect to the obligation to clear snow and ice.
In Montgomery v. Van, 2009 ONCA 808 (CanLII), the lease contained a term stating, “Tenants are responsible for keeping their walkway and stairway clean (including snow removal).” The tenant slipped and fell, injuring himself; he sued the landlord for negligence. As a preliminary issue, the validity of the snow and ice provision placing the duty on the tenant was challenged, the argument being that provisions in a lease that are “inconsistent” with the Act are void.
Interestingly, the Court found that it would be possible for a landlord to contract with a tenant for the tenant to assume the task of clearing the ice and snow from common areas; however, any such obligation would have to arise from “an autonomous contract for services.” In this case the provision in question was embedded in the lease, involved no separate or distinct consideration, and could not be severed.
To my mind, the case leaves some doubt about the degree to which landlords may by using a separate contract in effect avoid their other duties under the Act. I suppose that if the obligation-shifting deal is sufficiently “separate,” the tenant is at least alerted to the burden. But awareness on the part of the tenant shouldn’t be enough to allow this Act to be modified by contract.
The Globe and Mail had an interview with author Cory Doctorow in the weekend edition. After talking to an audience in Toronto on the topic of “How to destroy the book”, he sat down to talk about the future of publishing.
There’s one great line in the interview that will strike a chord with most lawyers: “I don’t think people write 26,000-word licence agreements in order to give you more rights,” [Doctorow] said. “They only do it to take away your rights.”
And for our recent Kindle purchasers, he has some words of warning as well:
“They gave everybody back their copies [of Orwell's 1984] and promised they would never do it again – unless they had a court order,” Doctorow said. “I’ve worked as a bookseller, and no bookseller has ever had to make a promise at the cash register: ‘Here’s your books. I promise I won’t come to your house and take them away again – unless I have a court order.’”
Doctorow’s newest novel, Makers, will be available for anyone to download online, for free. At the same time, he pays the bills by selling bound versions through an online print-on-demand service and at bookstores. The print version of today’s Globe carried a correction pointing out that it will be available at stores, after the weekend print version had said it would only be available for purchase online. Strangely, the supposedly more nimble online version was never updated.
The New Oxford American Dictionary has chosen the word ‘unfriend’ as its 2009 Word of the Year:
“unfriend – verb – To remove someone as a ‘friend’ on a social networking site such as Facebook. ”
“As in, ‘I decided to unfriend my roommate on Facebook after we had a fight’.”
” ‘It has both currency and potential longevity,’ notes Christine Lindberg, Senior Lexicographer for Oxford’s US dictionary program. ‘In the online social networking context, its meaning is understood, so its adoption as a modern verb form makes this an interesting choice for Word of the Year’.”
I’m pleased to say that Slaw got a great mention in a recent piece in Lexpert Magazine’s Globe and Mail web articles, “Law Firms Test Potential for Social Media,” by Marzena Czarnecka. Yours truly made a couple of cautious comments that got reported; and blogger and Slawyer Jeremy Grushcow got to impart a few words of wisdom.
While the BBC reported this weekend on Pods and Blogs on the extraordinary growth of Tweetminster, the place where real life and politics tweet, in Ottawa it’s a different story. NDP member Charlie Angus wants Canadian MPs to declare Twitter off-limits, because of some personal abuse in the House last night. Here’s the Globe’s commentary and yesterday’s story.
As someone who has sat through enough late night House sittings, at which not all Honourable Members were entirely sober, I can report that abuse that doesn’t quite get reported in Hansard is not unknown within Canadian democracy. I’m not sure that the sin of Tweeting abuse gets into a new realm of unparliamentary behaviour.
Tweetminster involves over a hundred MPs, fully a fifth of the house, 59% Labour, 22% LibDem and 14% Tory. In Dublin last month, they debated about whether the social media might in fact keep politicians more accountable.
Here is the Canadian exchange yesterday from Hansard:
Mr. Dean Del Mastro (Parliamentary Secretary to the Minister of Canadian Heritage, CPC):
Mr. Speaker, I am in fact saddened to rise on this point of order because I had hoped members in the House would not sink to this level. However, this morning the member for Scarborough Southwest made an entry on Twitter that I find particularly demeaning, discriminatory and unbecoming of a member of Parliament.
This morning, in the Standing Committee on Access to Information, Privacy and Ethics, I had to put up with the abhorrent behaviour of a partisan chair, who pays no attention to the rules governing parliamentary committees whatsoever. However, during that meeting, I provided the respect that each member is due.
The member for Scarborough Southwest wrote on her Twitter, and I apologize as I will have to use my name, “In committee this morning. M.P. Del Mastro should grow up (not out)”. I hear some people in the House laughing and that is unfortunate. I apologize for not being perfect and perhaps my stature does not meet the criteria that some members in the House set, but I have battled that problem since birth. I apologize for not actually fitting into the requirements.
I still hear the chastising going on. It is this kind of arrogance and elitism that will be the downfall of the Liberal Party if this continues. I am giving the member the opportunity to apologize. The actions of the members in committee this morning do nothing to discourage me. They only encourage me.
I would ask the member to take the opportunity to apologize for what she wrote. She may wish to consider that a number of her own constituents are less than perfect and she represents them as well.
Mr. Rodger Cuzner (Cape Breton—Canso, Lib.):
Mr. Speaker, for the benefit of the member, the lion’s share of the quips and giggles were coming from his side of the House.
Mrs. Michelle Simson (Scarborough Southwest, Lib.):
Mr. Speaker, I, too, sat through the committee meeting today and listened to a great deal of disparaging remarks about myself and my party.
That said, if there is anything I said that offended the member, I am sorry. To say one should grow up and not out was out of line and I do apologize. Growing up and growing out is not something I should have said to the hon. member.
Mr. Charlie Angus (Timmins—James Bay, NDP): Mr. Speaker, I am very glad the hon. colleague has apologized. However, I think it speaks to a bigger issue.
Some hon. members: Oh, oh!
Mr. Charlie Angus: Mr. Speaker, I am sorry, but this is not a clown show. We are elected to represent our people. We go to committee to do serious business. I believe the issue of members sitting on committee with their inane Twitters about what happens at committee demeans the work of all parliamentarians. I am not going to speak on this party or that party. We have an obligation to represent the best of our country and I would like members of Parliament to put the inane little games away and get down to business of serving their constituents.
When I saw that Twitter, I was appalled because I thought it could happen at any of our committees. I am asking all…
and then back to the Columbian Free Trade discussion.
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♫ To face the friends of Mr. Cairo
..
From Chicago to Hong Kong
Via Istanbul the Talking Tong
Dirty rats thru’ prohibition
Money flowed thru gangsterism
Or Edward ‘G’ and all those guys
Who always shoot between the eyes
Between the eyes
Between the eyes…♫
Music by Vangelis, lyrics by Jon Anderson, “The Friends of Mr. Cairo”.
Bradford Bleier, unit chief with the FBI’s cyber division along with other ‘cyber-officials’ stated at an American Bar Association conference on Friday that:
“Hackers are increasingly targeting law firms and public relations companies with a sophisticated e-mail scheme that breaks into their computer networks to steal sensitive data, often linked to large corporate clients doing business overseas” according to Lolita C. Baldor and the Associated Press.
The intrusions are ’spear-phishing’ attacks that are targeting law firms that are negotiating major international deals. According to Alan Paller, director of research at the SANS Institute, a New York firm was hacked in 2008 in an attack originating in China. Paller went on to say:
“The best documents to steal are in the law firm that represents that company,” said Paller, adding that often they are looking for documents that lay out the company’s playbook for the deal, or its negotiating positions and tactics.”
The spear-phishing emails seek to plant a computer program that searches and send copies of documents to a server in another country. It may also create a ‘back door’ that allows the hackers into the system.
The nature of the game has changed. Rather than lone hackers:
” they now more often are part of larger transnational organized crime operations”, said Chris Painter, the White House’s acting cybersecurity director.
I would think that news such as this would give any law firm reason to pause and reevaluate their internet security systems. I would also think that it would cause law firms to reevaluate placing their data in the cloud, as they are potentially placing their client’s sensitive information in the hands of third parties and depending on these third party’s security systems to protect their data. Law firms and large Data warehouses must look like Fort Knox to the friends of Mr. Cairo.
As we all know, when it comes to getting their hands on the money, Edward G and all those guys will always shoot between the eyes…
Each year at this time, the Toronto office of Blakes sends out a challenge to other Bay Street firms to organize food drives/fundraising on behalf of the Daily Bread Food Bank. Last year’s challenge raised an incredible $271,645. Can the firms do even better this year? Who will get bragging rights for the most food and dollars raised?
The law firm challenge runs Monday, November 23 to Friday, December 11.
From the Blakes memo that went to firms:
Daily Bread supplies 13 million pounds of emergency food. Last year, there was over 1 million food bank visits across the GTA; with 35% of food bank clients being children. This year there has been a 17% increase in food bank visits, compared with the same time last year, and this number is expected to be closer to 20% for the second half of the year. Your help and support is needed now more than ever!
There is always room for more firms in the challenge! If you would like to get your firm involved, please contact Kristin Thomas at the Food Bank at kristin@dailybread.ca for details.
If you (like me) are not in a Toronto firm, here are additional options for giving:
Daily Bread’s holiday drive is starting up November 27. Donate online at www.dailybread.ca, and they also accept donations at all Toronto fire halls, or cash donations by phone at 416-203-0050 or by good old fashioned cheque to:
Daily Bread Food Bank
191 New Toronto Street,
Toronto, Ontario M8V 2E7
There will also be a third “HoHoTO” event for the Daily Bread Food Bank, date to be announced. What is HoHoTO? See my write-up of last year’s event. For details, follow @HoHoTO on Twitter or watch the HoHoTO website as details emerge.
Not in Toronto? The Globe and Mail is reporting that food banks across the country are facing greatly increasing demands. Why not start your own food raising/fundraising event or challenge? Lawyer Rob Hyndman, involved in initiating HoHoTO, has a great blog post about opening yourself (and your organization) up to work with others in a positive, constructive, affirming manner. If you start something, let us know the details here!
A special thanks to Sarah at the Daily Bread Food Bank who answered my questions via Twitter and email! She is “tweeting” on behalf of Daily Bread at @DailyBreadTO.
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I gained lots of insight from Day 1 at the LawTech Canada conference earlier this week.
Deloitte, one of the sponsors, had two good sessions on enterprise content management and on preventing information leakage. On the topic of enterprise content management, I realized that my paper on “The 7 Faces of Legal Knowledge Management” (here in PDF) was, in part, discussing enterprise content management without using that phrase (to the extent that most knowledge managers in the legal environment manage a wide variety of information across the organization).
There are, however, I think 2 main reasons knowledge managers in the legal profession don’t necessarily use the phrase “enterprise content information” management to describe their work, even when they are involved in a lot of information-related tasks including document management, records management, knowledge management, litigation management, risk management and project management:
1) The Myopic Reason: The adjective “legal” in the phrase “legal knowledge management” suggests we focus specifically on issues and practices within our own legal community (legal precedents, legal research, and so on). This is both good and bad: good because we likely do face some unique issues and content not faced in other industries and bad because I think legal knowledge managers can learn from how other disciplines have applied enterprise content management, especially the accounting firms, who are often in front of the curve on this issue.
2) The Size Reason: One might make the argument that “enterpise content management” (as a phrase and concept) has more resonance in large organizations where there are thousands – or tens of thousands – of employees spread across many offices across the world. In such organizations, there is both a greater need and a larger infrastructure to justify or require a larger, more principled approach to content management running the entire gamut of enterprise content.
Or it may simply be there is no substantive difference between legal knowledge management that encompasses a wide variety of tasks (the “7 Faces”) and enterprise content management . . . .
Note: A colleague correctly pointed out that the word “archives” does not appear in my paper on the 7 Faces of Legal KM and I think that was a valid omission to point out (and although I discuss records management, I realize that records management is not the same as managing archival records). I suspect most law firms have at best ad hoc archives of institutional records and memories but I have always felt that capturing this historical firm information is an important part of the “story-telling” aspect of establishing an knowledge-sharing environment.
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