It’s safe to say that most Slaw readers are familiar with the concept of Stare Decisis in the common law tradition. From the Latin, “to stand by things decided”, the concept of a legal system in which lower courts are bound by the determination of higher courts concerning questions of law leaves little room for the lower courts of a single jurisdiction to influence appreciation of the law across the country.
As Master in Chambers Funduk famously observed in a 1989 ruling:
 Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.
 I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.
 I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.
Be that as it may, and to mix a metaphor, those among the lower echelons of the pecking order occasionally punch above their weight.
Throughout the internet age, and across multiple domains, we have seen many examples of disruptions to longstanding traditions and to once commonly-held beliefs of propriety. Can Stare Decisis withstand the onslaught of internet memes and widespread sharing of legal information?
The question comes to mind as I watch the growing awareness and discussion surrounding the January 2013 decision of R. v. McKay of the Provincial Court of Alberta in which the judge found that a 19 year old accused had been deprived of a reasonable opportunity to retain counsel because the police provided a phone and phonebook, but not the means to Google for help.
In less than 2 weeks, the decision accumulated over 1200 page views and the pace is increasing. To put the number in context, in 2012 it took a full 12 months for the combined page view count of the 2 most viewed decisions of the Provincial Court of Alberta to generate a roughly equivalent tally.
Lower court decisions matter a great deal – to the affected litigants – but rarely do they ripple through their home province, much less the country and beyond. CanLII holds around 4200 decisions of this Court, the great majority of which have never been and will never be cited by another court. Cross referenced against the 1.1 million cases in the CanLII database, only 6 have been mentioned 20 or more times in other cases, and even then, predominantly by the Provincial Court itself and only rarely a superior court or a court of different jurisdiction.
But as McKay is starting to demonstrate, Stare Decisis isn’t the only way to have influence.
- The first tweet linking to the decision on CanLII came on February 11th and dozens of tweets and retweets followed. One of my personal favourites among the re-tweets was this one from the excellent and “must follow” twitter account of the Kingston Police:
— Kingston Police (@KingstonPolice) February 14, 2013
- The referenced article from Martin Kratz first appeared on his firm blog on February 13th and then on Slaw on February 19th. Martin’s article was also discussed by the National Post on February 15th.
- On February 15th , University of Ottawa professor (and CanLII Board member) Michael Geist published an article about the decision in the Toronto Star, which was subsequently republished on his blog on February 19th. Now thing REALLY started getting interesting.
- That same day, the very popular tech community board Slashdot.org linked to Michael’s blog and to the case on CanLII
- On February 20th, I noticed a significant amount of web traffic coming to the decision on CanLII from a site in the Netherlands.
- On the 21st, traffic started pouring in from this posting in Germany.
- In addition, links to the decision can be found on facebook, and several other blogs and discussion boards.
Without running afoul of Master Funduk’s maxim, the take-up and dissemination of Justice Lamoureux’s ruling provides an indication that in the internet age, influence in the justice system will not be dictated solely by pecking order.
Stare Decisis isn’t going away, but at what point does the standing of the issuing court or even the legal accuracy of the judge’s ruling in McKay become moot? Irrespective of any appeal that may follow and any treatment of the argument in other jurisdictions, the essence of the finding – that in the internet age, providing a reasonable opportunity to access counsel carries a positive obligation on the police to provide internet access – is slowly on its way to becoming conventional wisdom around the globe.
Indeed, if someone can figure out how to attach a cat video to the ruling, we might have a new global standard for providing access to counsel by the end of the month!