I am glad we have the opportunity to look carefully before we leap since the impact can remain intact for a longtime.

there's the not too small fact that Torys was writing about actions in Canada under Canadian law.

While the US does have something called the "Alien Tort Statute"- one of my favourite statute names: almost as good as the UK's now repealed Law Reform (Married Women and Tortfeasors) Act – it doesn't give aliens the right to sue the US gov't.

David

Just brainstorming, Shaunna

I suspect at least one of the two Simons will remember a day, once upon a time, in the last millennium, early in the history of Osgoode Hall Law Schoo at York, when the Dean addressed a group of lawyers and law students and welcomed them to the best law school in the Commonwealth. It didn't take long before wags pointed out that it arguably wasn't even the best law school in North York.

There were high schools, then, offering business law classes. The classes were usually composed of women who'd been streamed into the 4 year high school commercial program on the basis that they weren't suited for the (ahem) "harder" 5 yr arts & science academic program.

Eh? What's that you say? The Finance Minister used to be an insurance defence lawyer who thought he was better at constitutional arguments that the Ont AG's constitutional mavens? And a hockey player?

Oh. Never mind.

I called it right here in SLAW just last week.

Sadly, I'm rarely proven right so quickly. :(

#1. Lawyers are public officers and public defenders (legal aid) in their role as officers of the courts which is a publicly recognized status which is also implied under this legislation. Furthermore, the primary mandate of Law Societies across Canada is to serve the public inerest which parallels the official duty and responsibility of the AG. If a Notary Public is a public officer, constituted by law, to serve the public in non-contentious matters, a lawyer is considered the legal tier qualified to represent the public.
#2. A comprehensive catalogue (available in Britain not Canada) does exist and covers some of the following major areas related to the application of prerogative powers.
1. Power relating to legislature (eg. legislating by Order in Council (eg. in relation to civil service) or by letters patent…..)
2. Powers relating to judicial system encompassing function of the AG.
3. Powers in foreign affairs (I have commented fairly extensively on this matter (problems arising in the Khadr case) on thecourt.ca).
4. Powers related to armed forces
5. Powers related to appointments and honours

To my knowledge, the British Government has never suggested any legal changes to the prerogative of the Crown on the Monarch's constitutional or personal prerogatives. For that matter, neither has Canada.

I will contend that "pleasure" carries with it a duty of fairness (protect and defend), owed to Her Majesty, in the issuing of Her Letters Patent to unfit lawyers. That duty of fairness is absent in B.C.'s Q.C. Act legislation (no revocation clause for cause)and thus, not only invalidates the legitimacy of these honors (for last 16 years) but places the Crown (Office of the AG) in disrepute (failure to act fairly and responsibly to correct flawed legislation). In this case, "fairness" is the legal heavy weight champion and "pleasure" is a wet sponge.

Unfortunately, I have had to narrow my approach in addressing this problem (due to an abundant lack of interest, concern or accountability by the provincial government)to paragraph 25, section c of the Constitution of the Order of Canada (in considering a possible federal solution) which deals with revocation of the Order of Canada for cause. Four people have had their Orders revoked and two more are under review: Conrad Black and Garth Drabinsky (some members have circumvented the process and resigned voluntarily). In my mind, there is little doubt that the federal gov't (since I have reported this matter to the AG of Canada) has jurisdiction to act immediately to protect and defend Her Majesty's Letters Patent from any further misuse and abuse if he considers the problem serious enough to do so. I have been waiting 8 months for his reply.

In my humble experience, the most logical and rational approach would be to spend millions on a party after the precedence has been set to protect and defend Her Majesty's Letters Patent (preferably before she arrives in Canada). Otherwise, this is just one great big display of hypocracy with a big price tag.

4 (1) The appointment to public office under the government of British Columbia, whether vacant or created and whether salaried or not, is vested in the Lieutenant Governor, with the advice of the Executive Council, with the exception of the appointment

(a) of the officials who are also appointed members of the Executive Council, which appointments are vested in the Lieutenant Governor alone, or
(b) for which other provision is expressly made by an Act.

(2) All officers appointed by the Lieutenant Governor, whether by commission or otherwise, remain in office during pleasure only.

It's pretty clear that sections 1 and 15 of the Public Service Act, R.S.B.C. 1996, c. 385 (CanLII) exclude Queen's Counsel from the definition of "employee" in that act and, consequently, from the definition of "employee" in the Public Service Labour Relations Act, R.S.B.C. 1996, c. 388 (CanLII).

I agree, of course, that we need to see a copy of the letters patent in question. Presumably the Provincial Registrar of British Columbia could be applied to.

20 (1) An authority under an enactment to appoint a public officer is authority to appoint during pleasure.

So we just have to decide whether a lawyer appointed as Queen's Counsel is a public officer. Section 1 is not helpful: "public officer" includes a person in the public service of British Columbia.

The BC Act says that QCs are 'provincial officers', as does the Ontario Act (BC gives them a capital P.) That is a relatively rare term in Ontario statutes; most of its uses seem to apply to official inspectors, e.g. of farms or the environment. Are provincial officers public officers for the purpose of the appointment power? Probably…

Well, something else we would have to decide: was the appointment made during pleasure? Having the authority to appoint someone on those terms does not mean that the authority was so exercised.

Twitter's a newsy ticker tape, might be another way to say it.

Dave, interesting ideas in your comment. I personally think of human rights as freedom TOs (express yourself) rather than freedom FROMs (being denied an opportunity to express yourself in a particular forum).

In my opinion human rights require both freedoms TO (positive freedom) and freedoms FROM (negative freedom) as they are inextricably linked. In order to have the freedom to do something you must be free from interference, obstacles etc. Those who emphasize the importance of negative freedom over positive freedom fail to highlight that they are seeking freedom from interference (governmental usually) not to stay idle, but rather, to engage in market activities etc.

But I don't get the appeal of Twitter anyway, for most purposes. Why would I want to have to find the Supreme Court's tweets? Would I follow it until the decision I am interested in is announced, then unfollow or defollow, or whatever the appropriate verb is? Why wouldn't I just go to the web site when the decision is about to come out. They can announce there when that will be.

Otherwise I am sorting through a raft of irrelevant tweets from the various potential sources of interesting information, in the hope of finding something useful. Seems like a waste of time to me.

But I figure if I don't hear the news for a few hours, my life is not ruined, so maybe I have an attitude problem.

Note that Her Majesty acted on advice from the political side. Presumably she could have declined to follow it. Whether she could have (or would ever in practice have, which comes to the same thing) taken that step on her own initiative, without advice (not to say contrary to it), is a different question.

I think that the risk of bringing the Crown into disrepute is such a vague concern that its application requires judgment, not some automatic action taken on the mere allegation – or even evidence-backed allegation – that the risk exists. As in the UK, so too here that judgment by the responsible politician is not likely to be reviewed by the courts, even though our courts do have to decide when the administration of justice may suffer the same fate (but they are experts in the administration of justice in a way that they are not in the Honour of the Crown, aboriginal treaty compliance excepted…)

The Queen is the sovereign of the Order of Canada (1967) and the Order of the Military Merit (1972) and therefore, de facto any Queen's Counsel Honors as well. The G.G. is the Chancellor of this Canadian System of honors. While Sovereignty is divided between federal and provincial jurisdiction, it is the Queen who unites these elements in her own person (Letters Patent), to embody our fully Canadian Crown. Therefore, "to protect and defend" is not a political,constitutional or legal option, rather it is a necessity since the failure to do so places the Canadian Crown in disrepute.

I read both. I wasn't criticizing you. I was just exercising my self-appointed duty as one of the site's resident curmudgeons (for which, as the Simons know, I'm paid for more than I'm worth).

I don't really subscribe to the view that the last lawyer to intentionally act in a way that wasn't basically self-serving was Sydney Carton. It's just that the lawyer marketing business spews so much treacle that even Mother Teresa should be offended.

David

I am not affiliated with Harrison Pensa. One of the things I do in my consulting, however, is watch Internet trends generally and legal industry trends specifically. When I looked at the site, I decided to write this post before I looked at Jordan's post. If you read them both that should be evident since my comments have a very different focus.

HP is one of the firms I do keep an eye on since they are doing some interesting things. They were already very much on my radar with David Canton's work with the online service http://policytool.net. I didn't mention this in my review above since it was already existing and I've talked about it elsewhere previously.

As to Jordan Furlong's view that the HP "website is signficant", he may well be right. He's far better informed on those issues than I am. On the other hand, some people might consider it relevant that he begins his discussion this way. "Stem client Harrison …."

I think you'd have called the TV equivalent of Jordan's message an infomercial. Reasonable people (including dinosaurs, if you will) will differ on the merits of the content that makes up the "info".

(Full Disclosure – one of my best friends is in the advertising (licensing) business and he's still one of my best friends, so perhaps my judgment is questionable for reasons other than what I do for a living and used to do for relaxation.)

Cheers,

As for certification, that is a tough thing to implement. Unless we take something like the Canadian Association of Law Libraries' New Law Librarians Institute and turn it into a certification program. But creating a certification program is a tricky thing–is attendance enough? Will it need exams? A practical/practicum experience element?

See my quick take here:

http://excesscopyright.blogspot.com/2012/02/supreme-court-of-canada-on-access-to.html

Howard

I'd love to hear from readers in smaller organizations.

Having studied both common law and civil law at Canadian law schools (Victoria & Ottawa respectively), as well as having undertaken several legal internships (including the BLC at Uvic), I can bring my own perspective as a law student to this discussion.

Personally, I see the best possible solution as a compromise between entirely theoretical academic training and a very practical training advocated by some professionals. This could be realized by law faculties in the following way:

1. Leave the first year of law school as it is. Basic training in both public and private law subjects, as well as basic legal research techniques are foundational. I would be surprised if either the academic or the professional community would argue with this this.

2. Leave second year as it currently is. At this stage, students should have the opportunity to explore different areas of the law through option classes.

3. The big change to the current curriculum would happen in third year of law school. At this stage, students could elect between an academically oriented final year of study or practice oriented studies.
- Academic: in addition to a number of option classes, students would take advanced legal research and writing classes, seminar classes emphasizing legal scholarship, undertake academically credited research assistant opportunities, judicial internships, interact and study with graduate level law students, etc. This is not an exhaustive list but merely suggestions.
- Practice Oriented: in addition to a lesser number of option classes, students would choose between working at law school clinics, mooting, interning at law firms or in government, etc. Practical classes would also be taught by professionals, such as Corporate Lawyering, Family Law Practice, Advocacy, etc.

I think this hybrid approach is worth consideration. It gives students considerable freedom to develop and focus their individual career aspirations. On the other hand, it would not require a complete overhaul of the law school curriculum – but rather would encourage law schools to develop both more practical research and clinical/practical opportunities for students. It would cultivate budding law professors, as well as giving law firms the option of hiring through either of the two streams of study.

The short answer is that CanLII intends to continue its practice of adding historical decision as targeted funding comes available.

Because I can't resist giving you the long answer as well, I'm happy to offer the following:

CanLII's original objective was to build a case-law database for the superior and provincial courts of each jurisdiction with a minimum depth of 10 years. That objective has been achieved, and in many cases far exceeded, for all superior and most provincial courts, and is imminent for the remaining few. Take a look at http://www.canlii.org/en/databases.html and you will see case-law collections with with 20, 40 or even 60+ years of depth.

We regularly expand case-law collections with historical rulings as materials and funding come available. For example, in 2011 we added over 24,000 historical cases. The main drivers behind adding historical cases are demand, availability and funding. All elements are necessary because the cost of digitizing and incorporating old cases into the CanLII database can be three to four times that of adding current cases. Consequently, we prioritize operational funding for current and new cases and we rely on grants and other supports for the addition of old cases.

Traditionally, the primary funding sources for adding historical cases have been the provincial law foundations. All have made significant and much appreciated contributions at one point or another. Recently, the Alberta Law Foundation and the Law Foundation of Newfoundland and Labrador have supported large projects that added significant depth the collections for those provinces. In Alberta, for example, a project undertaken in partnership with the law foundation and the Alberta courts has resulted in the availability of Queen's Bench decisions dating to 1971 and Appeal decisions to 1982 (as of today – but check again next week when the Appeal collection is further expanded to an even earlier date).

—————

Hi Connie – to your question, the full plan is not available in HTML. For the full plan, we offer the pretty and plain PDFs, as well as the issuu version for online viewing.

"My concern is a disturbing trend in many positions, apparently including law librarians, that don't require a law degree, but will prefer one without any corresponding increase in the salary paid out for the position."

Not just 'prefer' a law degree, but require "a bachelors degree, preferably in law". To my mind, that means a BA with a major in undergraduate law. To the HR world, it means an LLB. These are hardly the same thing.

1. The dissent was ultimately merely over the amount of the costs portion of the penalty. The minority reduced it. Both majority and minority decided that Mr. McSween had to resign or he'd be disbarred. (The majority gave him 14 days from his receipt of the order, the minority 10 days.)

2. Mr. McSween wasn't a wet-behind the ears mid 20 year old. The next 3 paragraphs come from the dissenting reasons

"[5] Mr. McSween is a 65-year-old Canadian of Afro-Caribbean descent. He was born into extreme poverty in Trinidad and Tobago on May 7, 1945, and came to Canada in 1967. He received a Bachelor of Arts (Honors) Degree and a Master of Arts Degree (Gold Medal) from the University of Manitoba. Mr. McSween worked as an investigator with the Ontario Human Rights Commission and then with the Pay Equity Commission of Ontario. At various points he was employed as a Special Advisor to the Human Rights Commission, a Director in the Citizenship Department, and a Director of Policy in History and Culture for the Government of Ontario. In 1976 he began a PhD at the University of Toronto. He did not finish for health and financial reasons. He testified that he now intends to finish and has only one chapter of his thesis left to complete.

[6] In September 1997, at the age of 52, Mr. McSween started law school at the University of Western Ontario and graduated in 2000. Despite applying for approximately 100 articling positions, Mr. McSween was unsuccessful in obtaining a position. He instead became Chief Operating Officer of Caribana, a position for which he never received payment. Mr. McSween eventually obtained an articling position. He testified that although he wished to learn real estate during his articles, his principal did not allow this.

[7] After passing the bar admission course and being called to the bar in 2003, at the age of 58, Mr. McSween again had difficulty finding employment and applied to approximately 50 law firms. In August or September of 2004, he started as a sole practitioner and real estate solicitor.

3. Maybe it was "ageism" that was the basis for the discrimination, not colour. (Read as much sarcasm as you wish into that comment.)

4. There are a few firms in this province with significant involvement in human rights issues. And then there's the Ontario Gov't which does hire articling students too. Given his background, an assertion that Mr. McSween couldn't find a job because of "systematic racism" seems off-kilter.

5. Mr. McSween's counsel is quoted in the Law Times article

“McSween was a familiar tale to us,” … “He was a victim of circumstance, his race prevented him from getting the experience he needed, and although he should have been more careful, he simply screwed up by placing his trust in the wrong people.

He didn’t have any experience because of what he faced, so he couldn’t have known. . . . He was duped … .”

When considering what to make of that statement, keep in mind some of the information about Mr. McSween's background.

Mr. McSween is a 65-year-old Canadian … came to Canada in 1967. He received a Bachelor of Arts (Honors) Degree and a Master of Arts Degree (Gold Medal) from the University of Manitoba. … worked as an investigator with the Ontario Human Rights Commission and then with the Pay Equity Commission of Ontario. At various points he was employed as a Special Advisor to the Human Rights Commission, a Director in the Citizenship Department, and a Director of Policy in History and Culture for the Government of Ontario.

I highly recommend the PDF version–it seems to be the full report, and has all the nice graphics.

Cheers,
Connie

No, neither CanLii nor any other online service is going to be able to replace a library. Which leads me to wonder … where will the law firms be sending their new articled clerks off to in in the future? A computer in the back of the Library (if they are large enough to have their own Library)? Good luck with that … that will totally do the trick. NOT.

One quick clarification – while yes, I have the mandate of carrying out the plan, the priorities and the overall plan were determined and developed by our Board of Directors.

Colin

A well-developed series of cases have dealt with the issue of jail over-crowding by the imposition of 3:1 or even 4:1 credit as a remedy for the horrors of being held in a dangerously over-crowded jail. New laws already on the books limit the maximum pre-trial custodial credit to 1.5:1 but what happens when Bill C-10 swells the ranks of those in custody as I anticipate it will?

If we return to the bad old days of 4 to a cell (two in bunks, one on the floor, and one literally draped beside the toilet…you should read some of the evidence from jails like Toronto's "Don" and shudder), what's a Judge to do with that? Contravene the 1.5:1 law and order 4:1 credit? Refuse to send someone to jail at all and order a non-custodial sentnece even if they feel it is warranted or if the law requires some new mandatory minimum? Order the Province to rectify an over-corwding situation that is, at least partially, not of their own making?

These are the types of conflicts I believe we may be headed towards.

Let's try "modeling" Johnny's logic:
—
I, Johnny Canuk, expect a good, workmanlike job from any professional, whether they work directly for me or whether they represent me in a legislature.

If they put their foot in it, and they do, I forgive honest errors, assuming stupidity rather than malice.

If they make too many errors that I see, then they're at risk
- if they happen to be in charge when the sky falls, I vote for someone else
- if they make a really huge number of errors, I vote for someone else

Otherwise I give them a number of terms before I decide they're getting stale and vote for someone else
—

–dave (recursively introspective) c-b

The province would plead that it could not afford to divert funds and it made a valid policy decision etc. I can't see a judge wading into that one. Does that leave the Fed level exposed to a damages claim if somebody is "injured" due because the prisons are unsafe due to inadequate funding? Can the fed level claim that it had no obligation to give additional money? Lots of fun for the brighter types that inhabit our world (g)

Anybody know a newspaper that's prepared to spend the money and time to see if a Freedom of Information application will produce whatever internal studies the feds did on the issue of the consequences of under-funding?

I'm assuming the political masters in the Regressive Conservative party thought about the problem enough to perhaps worry just a bit. I could be wrong, of course. I could be assuming too much.

DC

The Government only has available to it the moneys voted by the Legislature and the Legislature can only vote the funds requested by the Government (ss 54 and 90, Constitution Act,1867). If, then, the McGuinty Government in Ontario, or others across the country presented to their legislatures Estimates and appropriation bills with respect to correctional services and the parts of justice that are expected to take on greater work under C-10, granting the same amount of money next year as this year? Arguably, if some or all of the provinces want to cut expenditures either across the board or otherwise they even reduce the monies available for the various increased expenses arising out of C-10.

I would certainly welcome responses to this question either via SLAW or by direct email.

Michael (Mickey) Posluns.

Those who think of putting things in the cloud should consider the current fate of Megaupload, which has essentially been put out of business by the US government in collaboration with a few other governments, and there is a serious risk that all the data on the site – a lot of it – may be lost. This because of allegations of some copyright infringement, though much of the data infringed nothing. And the TOU of Megaupload are irrelevant. Good luck fighting the US government when it is in cahoots with the recording and movie industries, as it is pretty well full time nowadays. If people had not backed up their data, too bad for them.