The articles I write for my firm? Even if it is law-related and falls within the CPD definition, it doesn’t count if it is intended “primarily for [...] marketing purposes.” That doesn’t make sense. So long as the article was indeed written by the person listed as the article, and provided the article is law related, who cares what the person’s motivation is for writing the article?

The articles meant for publication in journals and articles? They count, but only to a maximum of 6 hours. This also doesn’t make sense. Why the arbitrary limit?

The overall purpose of the CPD requirements seems to be to encourage “collective” learning, rather than individual learning. That is why self-study does not qualify for CPD, and why there must be an “interaction requirement” in CPD programs. Under this criteria, recorded educational programs qualify, but not if you watch the program by yourself. It only qualifies if there are two or more participants watching the recorded program. Yet there is no requirement for me to say even a peep to the person who is watching the program with me. I could even spill coffee in their lap and I would still qualify.

The Twitter account? That is when things get really weird. Included among the list of 39 questions is whether “listserves, forums and network sites” are eligible for CPD. The Law Society’s answer is, unequivocally, “this type of information exchange is not eligible.” That also does not make sense. If the reason for requiring these CPD activities is to encourage interaction with other people, why wouldn’t these newest methods of social communication qualify if the very purpose of these tools is to exchange information and to discuss new ideas with other people?

Everyone agrees that lawyers need to keep up with new legal developments. Personally, I think it's virtually impossible to force people to learn and that the problem would be better tackled by punishing lawyers who make mistakes because they didn't keep up with legal developments. Whatever the solution may be, there are serious problems with the current implementation of the Law Society's goal. I hope prospective Benchers who will be elected on April 29^th give serious thought to how it can be changed.

In the United States, entire books have been written about Supreme Court clerks. The book Sorcerers' Apprentices: 100 years of law clerks at the United States Supreme Court, co-written by Professor Weiden of Indiana State University, included interviews with 150 former clerks.

By contrast, in Canada, the first study of law clerks in Canada occurred in 1975. The next study – still the gold standard by many accounts – was published in 1994 by three former law clerks with the encouragement of two Supreme Court judges. In an article published in 1996 called "The Sounds of Silence: Law Clerks, Policy Making and the Supreme Court of Canada," Lorne Sossin described this sparse Canadian analysis as "striking."

Yet when the author of Sorcerers' Apprentices sought to interview former Supreme Court of Canada clerks for a similar survey in 2009, he was met with the response by the Supreme Court of Canada that "participation in the survey by former clerks would violate confidentiality obligations." The Court added that “confidentiality obligations of current and former law clerks are not limited to information about cases, but also extend to internal processes of each Justice's chambers.”

This "hard line" position of non-disclosure is difficult to reconcile with some Canadian studies that have already described the judicial decision-making process at the Supreme Court of Canada. In 2003, Justice Sharpe and Professor Roach's book, Brian Dickson: A Judge's Journey, was based in large part on "over two hundred boxes" of Justice Dickson's personal papers, which included his "personal working files from almost every case on which he sat throughout his seventeen years as a member of the Supreme Court of Canada." At the time that Justice Sharpe and Professor Roach's book was published in 2003, one reviewer expressed surprise at the wealth of material reviewed in the book, which included even draft judgments of Chief Justice Dickson.

Seven years after publication of the Justice Dickson book, no harm has come to the Court from the frank review of its decision-making process. Why not shed more light on the clerkship process? With a little common sense, the Court's concerns about confidentiality can surely be accommodated.

What few studies that have occurred have expressed concern about the involvement of clerks in drafting reasons. It is no secret that this occurs. From my perspective, the concern can be overstated. Juniors prepare drafts in all facets of private practice. And in politics too. Who really thinks that Stephen Harper writes his own speeches? It should not be surprising that some drafting assistance would also occur at the Supreme Court of Canada. But it is ultimately the responsibility of a judge to put his or her signature on the reasons for decision, not the clerks.

In her reasons, Justice Weiler concluded the appointment of an amicus is “in the discretion of the court,” a discretion that has evolved in over twenty years of jurisprudence to the point where an amicus’s role may be akin “to that of an advocate on behalf of a particular person or point of view in many cases.”

Rule 13.02 of the Rules of Civil Procedure, the applicable Ontario Rule, still says that an amicus must intervene “as a friend of the court.” One can imagine how it is possible for someone to remain a “friend of the court” while engaging in tasks typically thought to be adversarial, like cross-examination. The amicus could challenge assumptions and facts.

But after this has occurred, as difficult as it may be, it should be paramount for an amicus to provide dispassionate, neutral analysis to the court. Contrary to the Bhajan decision, it is difficult to reconcile the words “friend of the court” in Rule 13.02 with a partisan advocate.

Partisan advocates who are likely unable to meet the test for dispassionate assistance to the Court should be required to meet the test for intervention under Rule 13.01 of the Rules of Civil Procedure, a rule that is tailor-made for persons who claim “an interest in the subject matter of the proceeding.”

Amicus curiae can be helpful. But if interest groups are allowed to intervene as “friends of the court” without requiring that some degree of objectivity is brought to their analysis, the traditional amicus curiae role involving a “friend of the court,” making neutral submissions, risks becoming tainted by partisanship.



It is a short, six-section Act (http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90p55_e.htm). Its key provision is s. 3, which states that a guard appointed under the Act or a peace officer may “require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and address, to identify himself or herself and to state the purpose for which he or she desires to enter the public work.” In addition to these identification requirements, s. 3 permits a warrantless search of “any person entering or attempting to enter a public work,” as well as any vehicle which is “suspected of having been in the charge or under the control” of any such person.

The definition of “public work” in section 1 of the Act is very broad. It includes “any railway, canal, highway, bridge, power works,” and “any provincial and any municipal public building.” It also includes “other building, place or work designated a public work.” Hence the designation of a large part of downtown Toronto as a “public work.”

If there is a refusal to comply with a direction made under the Act, that person may be subject to a fine of $500 and to a two month term of imprisonment.

What does this mean? A number of eerie scenarios arise. Technically, under the Act, if a person entered Toronto’s City Hall – a public, municipal building – police officers would have the right to search that person without a warrant. There is no requirement to prove reasonable and probable grounds to believe an offence has been committed. The police could also search that person’s car too.

Bizarrely, because a public highway is designated a public work, police technically would have the right under the statute to conduct a warrantless search of any person who entered any public highway in Ontario.

Only a few decisions have considered the Public Works Protection Act. In a 1993 decision called R. v. Nicolosi, [1993] O.J. No. 3406, the Crown sought to justify a search of a vehicle on the basis that the Act permitted a warrantless search of a vehicle that had entered a highway. Justice J. MacDonald held “the evidence herein does not establish that any of the steps taken by police were for the purpose of protecting a public work.” Although this was probably the right conclusion, the reasoning misses the point, which is that the legislation expressly designates a highway as a “public work.” There is no additional requirement under the statute to prove that police are protecting a public work.

Most other decisions have involved Charter challenges to the Act when people entering a courthouse are searched. Not surprisingly, these challenges have failed, largely on the basis that a courthouse is like an airport where (i) searches are not conducted for the purpose of enforcing the criminal law or investigating an offence, and (ii) people expect they will be subject to some kind of security screening when entering a building like a courthouse. The leading decision on this is the Ontario Court of Appeal’s decision in R. v. Campanella, 2005 CanLII 10880 (http://www.canlii.org/en/on/onca/doc/2005/2005canlii10880/2005canlii10880.html), as discussed in comments on Slaw.

What impact does this have on the G20 designation and beyond?

Although it was initially reported that police had the power under the Public Works Protection Act to search any person within a five metre designation of the security fence that was erected in Toronto – a position from which the police have since resiled (see http://www.thestar.com/article/830030–no-extra-powers-granted-to-police-during-g20-summit-liberals) – any attempt to enforce the Act in this way would not have complied with the language of the Act or with the Charter. Section 3 of the Act only permits police to search any person “entering or attempting to enter a public work.”

It is difficult to imagine how standing five metres away from a fence – some 16 feet away – could amount to “attempting to enter a public work.”

Equally, and more seriously, it is difficult to imagine how anyone charged with enforcing Canada's laws, particularly Toronto's Chief of Police, could have concluded the legislation would give the right to search anyone coming within 16 feet of the fence. It is not a difficult issue. It is a simple question of statutory interpretation.

As for other instances where the Public Works Protection Act could be applied, the Court of Appeal in Campanella justified the constitutionality of courthouse searches because there were large signs to alert the public of the fact that searches were taking place. Any person could refuse a search if they left the building. Although the regulation designating large parts of Toronto as “public works” has now been repealed, the Campanella decision confirms that without appropriate safeguards, the Public Works Protection Act cannot be used to arbitrarily designate locations as “public works” to give carte blanche to police to conduct indiscriminate searches.