Julian Assange's extradition appeal was heard at the UK's highest court on 1 and 2 February. Assange is trying to avoid being sent to Sweden to face allegations relating to sexual encounters there in 2010. The key issue is whether a public prosecutor is a valid judicial authority.

Two things about this appeal illustrate the flexibility of what is wrongly thought to be a crusty, fossilized world. Both barristers in this extremely high profile case are women. And the proceedings were broadcast live from the court room. Here is an extract from the hearing.

And Simon Chester's post today reports an announcement that the court will start official tweets of judgments .

Library Boy told us last year about some tentative steps that courts were making to embrace – or to sniff around tentatively – the whole subject of social media. Today's announcement from the UK Supreme Court that it will start official tweets of judgments – this in anticipation of the Assange extradition decision – represents the first wholesale adoption by a final court of appeal.

It overshadows Chief Justice McLachlin's announcement within a speech at Carleton University on the Media and the Courts, that the Canadian judiciary should start to think seriously about social media.

See the Globe, the Star, CTV and the Halifax papers

You can see a brief video clip here.

I understand that the Australians may be thinking about the issues too.

Two weeks ago federal prosecutors in the US shut down MegaUpload, one of the most popular file-sharing sites on the Internet. The site was a widely-used "digital locker" that stored files for millions of users world-wide. Some of those users, however, used the side for illegitimate purposes, turning the site into a hub of what the US prosecutors characterized as "massive worldwide online piracy."

While there's no question large quantities of illegal, pirated material was successfully removed with the MegaUpload takedown, thousands of innocent users have lost access to their files as a result of the takedown. The legality of the takedown has been questioned by lawyers from around the world, and the Electronic Frontier Foundation has promised to take legal action against the US Government if data is not returned to legitimate users promptly.

When considering the risks of storing data in the cloud, becoming collateral damage from an over-reaching takedown order is not something the typical consumer will - or should – have to contemplate. The US Government deserves strong pushback on this kind of action, as other file storage services, such as Dropbox, Box and others – could face the risk of being summarily shut down because a subset of its users choose to misbehave.

The Strategic Planning Society recently posted on their Linkedin site the seemingly straight-forward question: “What is a good definition for vision?”

Now please keep in mind that this question is being posed within the fraternity of those who have fostered and perpetrated the belief that every organization should have a vision and that the organization’s leader should be a “visionary” – the originator of such a vision. A flurry of responses came from a community who hold titles like Strategic Planning Manager, Senior Resource Planning Manager, Head of Planning and Control, Senior Manager Strategy Solutions, Strategy Execution Advisor, Managing Partner, CEO, CMO, University Professor and so forth and included:

The position or status a company aspires to achieve within a reasonable time frame.

The vision is a concise measurable statement that defines the mid to long -term (three to ten years) goals of an organization. The vision should be external and market oriented and should express how the organization wants to be perceived by the world.

Vision – a smart ability to look behind horizon

The ability to stay in a balloon above your business, to see beyond the operational issues

"Vision" refers to an imagined state of affairs. All else is elaboration.

Vision consists of thinking ahead and ensuring that colleagues address the right issues.

Picture-painting by the Leader: We're going [over there]. We need to be there [by this time during a reporting-period].

These responses are coming from very smart, accomplished professionals. This question generated in excess of 65 postings over a one-month period without any real consensus amongst the 6800 members of The Strategic Planning Society of what a vision really is!

I believe one aspect of this notion of “having a vision” was confirmed by the recent (150 managing partner) interviews conducted by my UK colleague Rob Lees (co-author of When Professionals Have To Manage) where he related, in a discussion with me:

The managing partner of one of the firms we talked to explained how he had come back from Harvard Business School’s Leading Professional Service Firms program with renewed energy and a determination to drive the firm forward. So, he outlined his vision of moving the firm from its regional base to becoming a leading national firm to his partners and talked about what they needed to do to get there. But, to his abject disappointment, nothing happened. To the partners, the vision was just too aspirational; achievable only through a merger, which they felt they would be on the wrong side of. Concerned about the lack of action, the managing partner visited all of the offices to talk through the plans and, during these visits, the partners’ concerns surfaced.

Meanwhile, in his new book Great By Choice, Jim Collins tells us that his findings dismiss several closely held business world beliefs . . . such as the notion that successful leaders are “bold, risk-seeking visionaries.” Rather, Collins concludes that the most successful leaders are “disciplined,” “empirical” and “paranoid,” building on verifiable results and constantly anticipating what could go wrong.

It is my (personal) strong belief that this constant talk about "needing to have a vision" is just NONSENSE and something that managing partners have elicited from various books on leadership. Partners definitely NEED to have some sense of shared direction (where are we going?) and that shared direction needs to be facilitated by an effective leader; but I find that this idea that in order to be an effective firm leader, you need to articulate a vision, is just not grounded in any reality.

Remember mission statements? Mission statements first came into vogue in the 1990’s. A single-page document filled with more platitudes than you’d find in the average prayer book, spelling out your firm’s business mission. No one remembered the darn things, it was business as usual, and the document didn’t have the profound impact on the fortunes of firms that their creators had hoped for. The mission statement exercise was quickly forgotten — except at those few firms who chose to have them laminated as cards for every professional to keep in their wallet.

Then we were instructed on how every firm needed "a vision." It was a new name, but quickly became the same old silly exercise. All your skeptical partners exchange winks and knowing glances. The Executive Committee will have to be indulged one more time. In all cases the result was to be the same — having a vision changed nothing. I am not aware of one single firm (and certainly not among those achieving above-average performance) who have invested partner time in developing a mission or vision statement.

And I have for years challenged lawyers at multiple legal conferences to please give me just one example of a law firm, anywhere, wherein a firm leader proclaimed a vision and had all of his or her partners excited, eager to move forward and behaving in concert with that articulated vision. I have yet to find one real live example.

Looked at slightly differently . . .

Visionaries tend to narrow their attention onto those phenomena that appear relevant and supportive of their visions. They can, therefore, appear impatient, dismissive and intolerant of any information or ideas that may appear to challenge or question their vision (“don’t confuse me with the facts”). While having a vision may be nice – in a complex world, visions require a psychological sophistication that many of us mere mortals lack. A true vision contains a paradox in that it is not an expression of truth, nor is it necessarily right, but your vision must be treated as though “it was right.“ The thing to consider is that a true vision requires that you have a view of the future that isn’t necessarily supported by evidence.

(And with tongue firmly implanted in cheek): I don’t know about you, but my academic education in social psychology taught me that an individual having visions . . . unsupported by evidence . . . was usually a clear sign of someone who had lost touch with reality!

Congratulations to law firm Harrison Pensa in London, Ontario who have just relaunched their website. While launching a new site is not necessarily newsworthy (well, unless you are a member of the firm itself), in this case HP have used some fresh thinking which makes this redesigned site stand out.

A few features of the site:

• the look of the site is bold, personable, and still professional
• rather than stock photos, they feature their own lawyers prominently
• lawyer bios include links to their lawyers on social media sites (notably LinkedIn) and also allow for readers to share the bios across the web with a social media "share" button
• they have three blogs on the site (HP Business, HP Community, and Students), again with share-ability
• they are one of the few law firms taking advantage of the popular software WordPress.

Why is it interesting that they are using WordPress? WordPress is a free, Open Source platform that has become widely adopted around the world both for blogs and for websites as an easy-to-use content management system (CMS). According to Matt Mullenweg (WordPress originator) last August in his "State of the Word" report, WordPress is running on 15.5% of all websites, and accounts for over 54% of CMS marketshare. 22% of domains registered in the U.S. are running WordPress. That is a huge adoption rate, and yet law firms have a tendency to look for something other than this obvious solution. So, kudos to HP for joining the "cool kids" in using WordPress. It makes sense to use something that is widely known, and has a community around it for support.

HP are also tying the launch of their new website in with a campaign to raise funds for the London Food Bank. For every person who "likes" their Facebook community page, they will be donating a pound of food to the food bank. Kudos on this idea to give back!

For a more in-depth discussion of why the Harrison Pensa website is significant, see also Jordan Furlong's post on the Stem Law Firm Web Strategy blog from February 1st.

Back at the end of the last millennium, the Centre de recherché en droit public (CRDP), along with colleagues from the Centre de recherches informatique et droit (CRID) and the Centre national de la recherche scientifique (CNRS) obtained a research grant from the European Commission’s Directorate General for Health and Consumers to develop what would become the ECODIR (Electronic Consumer Dispute Resolution) ODR platform.

Launched in Brussels in October 2001, the ECODIR platform was well received by the various stakeholders: consumer associations, professional associations, industrial groups, the public sector, the European Commission, etc. The technical aspects of the application were praised, as was its user-friendliness and the ease with which the parties can negotiate directly with one another, without the intervention of a third party. Yet, despite these facts, the ECODIR Project has never really taken off. Hosted at the Faculty of Law of the University College of Dublin, Ireland, the ECODIR platform is still available on the Internet, but only handles a handful of cases annually.

Although the European Commission made what we believe were a series of mistakes in the early stages of implementing the platform – such as diverting funds towards third-party projects that never came to fruition or not following through with its original plans, which including labels and partnerships with major European commercial sites –, all of which have undeniably had a role to play in the lack of success of this enterprise, ECODIR mostly serves as a cautionary tale regarding the issue of funding online dispute resolution systems. In the early part of the first decade of the new millennium, many websites claiming to offer online dispute resolution services appeared. Yet, aside from SquareTrade, which was able to take advantage of a captive market in the form of the formidable armada of buyers and sellers on eBay, few of these services found the necessary financial backing to develop functional ODR platforms and to make their systems strive.

There are only two viable ways to address the ODR funding question. The first is to have the ODR provider be financed by a benefactor, whether public or private. Public models are popping up in certain areas of the world, the small claims experiment in British Columbia being one of the latest examples of this trend. But, since the Internet is transnational in nature, it remains difficult to see how a single state can offer this type of service to cross-border disputes, especially when neither litigant has any connecting factors (to use the terminology set forth by the Supreme Court to establish competence for online disputes) with said state. Furthermore, even if foreign litigants chose to use a platform offered by, for argument’s sake, the Canadian government, it would be difficult to justify such an expense to Canadian taxpayers, especially in these difficult economic times. The burden of funding ODR therefore rests on the private sector, which, as the last decade has shown, doesn’t seem keen on investing in the field. Other than eBay — whose system is incorporated into its auction service, and therefore reserved for its members — major Internet stakeholders have yet to agree to open their wallets to facilitate the establishment and operation of online dispute resolution systems.

Since ODR operators cannot count on public or private funding to cover their costs and generate a profit, the only remaining option seems to be to have participants pay user fees. This business model is currently being used by most "classic" ADR services, yet doesn’t seems to be well adapted to high volume, low value cases such as those put forth in online B2C cases. Why would consumers chose ADR when the value of the dispute is less than the cost of arbitration? Of course, this only applies for those few cases where parties cannot resolve their dispute themselves through the help of the platform and, therefore, would need to rely on the intervention of a third party to decide the outcome of said dispute (a scenario that is relatively uncommon if one relies on statistics regarding ODR). However, even if arbitrator salaries do not come into play, operating costs relating to hosting services, system administrators and general upkeep still need to be factored into the equation. Furthermore, since there is strong opposition from the international community to the idea of consumers having to pay even a nominal fee to have access to ODR services (this position seems to have been adopted by most delegations taking part in the UNCITRAL Working Group on Online Dispute Resolution for which the CRDP has observer status), there is only one option left, and that is to have the online business community bear the blunt of ODR costs.

As Michael Geist demonstrated back in 2001 in his “Fair.com” paper, this option, of course, raises serious questions regarding the neutrality of ODR providers and administrators. If one party pays all of the provider’s bills, there is a risk of partiality. This problem was more recently brought to light with the National Arbitration Forum scandal regarding credit card disputes where “Only 0.2% of consumers won their cases in California when NAF was involved”, a situation many commenters attributed to the fact that corporations with controlling interests in the NAF were also linked to a debt collection agency.

A similar argument could technically be made against what is often referred to as the most successful example of ODR, i.e. the eBay Resolution Center (the system which replaced SquareTrade in 2008). Since eBay funds its platform through monies received from its sellers, one could argue that the service could show a bias towards the later (although we know of no statistical evidence supporting this claim). However, we submit that such an argument remains farfetched since eBay members can both sell and buy, and therefore the line between merchants and consumers is not as well defined as it would be in classic ecommerce situations. Furthermore, as eBay has millions of members, it seems doubtful that even the biggest of PowerSellers could have that much influence on the website. Of course, since some Courts no longer view eBay as a neutral marketplace (in France for example), but rather as a partner to its sellers, there is a risk that, whether it is warranted or not, consumers start to feel that the deck is stacked against them…

In 2012, there are few that would still claim ODR is not a useful tool to solve online commercial disputes, especially with regards to high volume, low value disputes, such as those most commonly seen in B2C cases. Most courts recognize ODR settlements as binding, platforms such as SquareTrade and ECODIR have demonstrated that the technology can actually help reach a settlement more easily and at a much lower cost than classic ADR services ever could, and the steady climb in computer literacy and cross-border ecommerce suggests that more consumers should chose this means of settling disputes in the near future. All that remains for ODR to prosper is to settle the financial question.

More than a decade after funding the ECODIR project, the European Commission is getting back into promoting ODR with a Proposal for a regulation of the European Parliament and of the Council on online dispute resolution for consumer dispute. According to the Proposal, the Commission would develop and host "an interactive website offering to consumers and traders a single point of entry for the resolution of contractual disputes arising from cross-border e-commerce transactions". The site would serve a hub where consumers and retailers could choose an ADR provider to settle its case. Although the platform itself should be funded by the European Commission, it remains to be seen how ADR providers who chose to take part in the endeavour will find a way to develop systems that can interact with the platform, offer competitive ODR services and make money considering the low values at stakes. Hopefully, unlike with the ECODIR project, the European Commission will find an economic model to ensure the overall system prospers. Otherwise, as the song goes, it's all just a little bit of history repeating.

What is the responsibility of a public body to notify a third-party when a request for information is made? The Supreme Court of Canada considered this question in Merck Frosst Canada Ltd. v. Canada (Health), on appeal from the Federal Court, and released this week. Although the appellant's appeal was dismissed by the court, they did highlight some areas of improvement for the drug application process.

A competitor of the appellant pharmaceutical company, Merck Frosst, requested information under the Access to Information Act about submissions Merck had made to Health Canada. The submissions were required under the Food and Drug Regulations to bring Merck's Singulair® to market. They consisted of a New Drug Submission (“NDS”) and a Supplementary New Drug Submission (“SNDS”) that contained full and frank disclosure of all knowledge and information that the appellant had about the asthma drug, including list of ingredients, details of manufacture, tests for potency, purity, stability and safety, and detailed safety tests. Some of this information is eventually contained in the Product Monograph when the product is approved, but the contents are subject to discussions and negotiations between Health Canada and the pharmaceutical company.

Background

At issue was the appropriate balance between access to information for accountability and strengthening democracy, and private interests necessary to foster research and innovation. Justice Cromwell referenced Justice La Forest's statement in Dagg v. Canada (Minister of Finance) to explain the purpose of the Access to Information Act,

On receiving the information request from the appellant's competitor, Health Canada identified 30 out of 550 NDS pages and 60 of 300 SNDS pages that could not be disclosed under s. 20(1) of the Act,

20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains

 (a) trade secrets of a third party;

 (b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;

 (c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; …

The court noted that this section must be read in conjunction with substantive protections in s. 25,

25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.

Health Canada notified the appellant of the request when it was made under s. 27(1), but Merck indicated that all of the NDS and SNDS information were confidential trade secrets subject to s. 20(1), with the exception of already published studies and the Product Monograph. Health Canada took this into consideration and made further redactions, but provided disclosure to the competitor. As a result, Merck filed for judicial review. Five decisions preceded the hearing before the Supreme Court.

On the initial application, Merck was successful in part. The Federal Court held that Health Canada could not disclose any part of the record without prior notice apart from a public document called a Notice of Compliance. A unanimous decision on appeal remitted the matter back to Federal Court over a misinterpretation of s. 20(1)(b).

The rehearing found that Health Canada should have conducted its own thorough review before putting the onus of refusing the disclosure on Merck. Health Canada agreed to conduct further redactions. Some trade secrets were found by the court in the submissions, and Merck successfully obtained a declaratory order over the lawfulness of the procedure followed.

The Federal Court of Appeals then concurrently heard two appeals and cross-appeals. A unanimous court upheld the appeals and dismissed the cross-appeals, and held that the notice obligation only arises where s. 20(1) information is contained, and disclosure without prior notice otherwise does not contravene the Act. The interpreted the trade secrets exemption narrowly and with a high threshold, and required direct and objective evidence to demonstrate confidential information. The court found that Merck did not provide sufficient evidence in this respect.

Decision

Justice Cromwell for the majority indicated that government institutions must make reasonable efforts to give third parties written notice of requests for disclosure except where a waiver has been made. He applied the "modern approach" of statutory interpretation, also referred to in the literature as the "informed interpretation approach" or "pragmatic dynamism,"

[64] …the words of a provision are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament…

He held that s. 27 created a low threshold to trigger the notice requirements, but rejected the appellant's position that there as an automatic right to notice,

[64] …The grammatical and ordinary sense of s. 27(1) makes plain that notice is required only if certain conditions are met in the particular circumstances. The section does not refer to particular categories of documents but rather to particular types of information that are or may be contained in records otherwise subject to disclosure. The subsection sets out specific conditions precedent for engaging the notice requirement. As the Federal Court Trial Division put it in words that were endorsed by the Federal Court of Appeal: “The essential condition precedent to the issuance of the notice is that the respondent has reason to believe the disclosure of the record might be contrary to his obligation under section 20 not to disclose records”

He concluded at para. 84,

(i) With respect to third party information, the institutional head has equally important duties to disclose and not to disclose and must take both duties equally seriously.

(ii) The institutional head:

- should disclose third party information without notice only where the information is clearly subject to disclosure, that is, there is no reason to believe that it is exempt;

- should refuse to disclose third party information without notice where the information is clearly exempt, that is, where there is no reason to believe that the information is subject to disclosure.

(iii) The institutional head must give notice if he or she:

- is in doubt about whether the information is exempt, in other words if the case does not fall under the situations set out in point (ii);

- intends to disclose exempted material to serve the public interest pursuant to s. 20(6); or

- intends to disclose severed material pursuant to s. 25.

He noted that both parties took extreme positions and hoped for a more cooperative and constructive approach in the future, because the Act only functions when the parties cooperate. The institutional head cannot shift their responsibility on the third party and the third party must provide assistance in helping them carry out their duties,

[90] From the third party’s perspective, it is, of course, prudent and in accordance with common sense to be as helpful as it can be in identifying precisely why disclosure is not permitted. Nonetheless, the head must make a serious attempt, with the available information and having regard to the practical constraints, to discharge the responsibility imposed by the Act to apply the requirements to disclose or not disclose…

Eileen Vanderburgh of Alexander Holburn Beaudin & Lang LLP summarizes the relevance of the decision on the Information and Privacy Blog,

This decision confirms the obligations of a public body in dealing with requests for third party information and the rights and obligations of a third party seeking to restrict access to information it has supplied to a public body. In some cases private sector organizations can address their rights to notice of access requests for their information by way of contract, or by clearly advising the public body that it considers the information it is supplying to be confidential and within the category of information that is excepted from disclosure under any applicable access legislation, thereby triggering the obligation of the pubic body to provide notice. However, neither contract language nor statements of confidentiality will determine whether or not the records at issue are in fact excepted from disclosure.

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 20^th 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.

It’s that time of year again. Judges and lawyers have returned to court sporting freshly bronzed bodies, and Ontario’s RIDE program has tucked away the bulk of its breathalysers until the summer cottage season. A perfect time to transition from reflections of the past to contemplation of the future. And so I bring you my second annual Crime & Punishment Predictions. (If you’re wondering how plausible a prognosticator this Prutschi fellow is, you may peruse my previous perennial predictions here: http://www.slaw.ca/2011/02/07/crime-punishment-in-2011/). 

5. A Return to the 11(b) Crisis

For nearly a decade appellate courts have been discreetly warning their trial-level cousins that the guidelines for tolerable trial delay at both the Provincial and Superior Courts are supposed to be inching downwards. The rationale is obvious: since the crisis of long-delayed trials first identified way back in Askov, many years have passed but the expectation of a steadily declining backlog has failed to materialize. Ontario is stumbling along with its ‘Justice on Target’ plan that has seen improvements in some jurisdictions offset by missteps in others. Dramatic changes to the Criminal Code discussed below will also pile on more trials to a system already heaving on the verge of collapse. I expect to see substantial litigation surrounding trial delay in 2012.

4. Reefer Madness

A majority of the Canadian public remains blissfully convinced that Canada is soft on minor marijuana charges. With current and former Vancouver mayors arguing very publically for legalization, you can’t blame Joe Public for thinking cops don’t care much about weed, but you may be in for an unpleasant New Year’s surprise. In addition to draconian new sentencing provisions tucked into the Omnibus crime bill for small grow-ops, in Ontario I have noticed a very significant uptick in the number of individuals being charged for simple possession of tiny amounts of pot. While these charges are still being almost universally diverted at an early stage, previously the unstated policy on the part of police officers seemed to be to simply seize the goods from those caught with a couple of joints. Now, for reasons unclear to me, charges are in fact being laid.

3. White Collars and Prison Jumpsuits

Whatever you may think of the “occupy” movement you can’t deny that the so-called “99%” are eager to beat down the mansion doors of the so-called “1%”. The poster-children for all the evil that embodies the one-percenters are white-collar fraudsters. Our southern neighbours have long bemoaned Canada’s comparatively soft sentences in this area and the omnibus crime bill squarely takes aim at correcting that perception. A spate of new aggravating factors to be considered on sentencing relate directly to fraud cases and a two-year mandatory minimum jail sentence will be imposed on anyone convicted of a fraud involving $1,000,000 or more. A number of police task forces and crown attorney units have recently been formed specifically to tackle commercial frauds and they will be looking to make good on their mandates in 2012.

2. Constitutional Challenges to the Tory Crime Agenda

Love it or hate it, get-tough-on-crime is back in vogue. More than any other development in 2012, the sweeping changes enacted by the omnibus crime bill will undoubtedly be repeatedly targeted by defence lawyers all across Canada. Mandatory minimum sentencing provisions for certain drug offences look especially ripe for a constitutional challenge, particularly when they are applied to the mentally ill, those with drug addictions, or aboriginal offenders. I expect we will see a burst of inconsistent lower court judgments early in the new year followed by some significant appellate decisions in the spring. A date with the Supreme Court in Ottawa seems certain eventually but that’s a road that may take us into 2013.

1. Bankrupting the Justice System

Guess what eliminating 2-for-1 pre-trial credit, increased mandatory minimum jail sentences, and tougher parole laws add up to? 2012 will be the first full year we see the real price of ‘getting-tough-on-crime’ and be prepared for some serious sticker shock. The substantial shifts enacted by the government go beyond the cost of building a few more jails. In addition to all the extra time offenders will spend in prison, an unintended consequence of these provisions is to substantially disincentivize early guilty pleas. An accused who was previously eligible for a lenient sentence or who had racked up considerable pre-sentence custody could throw in the towel and make peace with Her Majesty but is now encouraged to take a shot at trial even where he assesses his own chances of winning the case as poor – if you’re getting slammed by a mandatory minimum whether you plead guilty or not, you may as well spin the wheel of justice and see what happens. Already strained budgets for police, legal aid, crowns, corrections, probation and parole will feel the sting. The feds have seated everyone at a very expensive dinner table but they appear to have ducked out the side door having only covered a third of the cheque. Provinces and municipalities will be left washing dishes in the kitchen to pay off the rest of this tab.

My post today is a question.

I recently heard an interview in which a major newspaper editor said the traditional model of "active" journalist and "passive" reader, is dead. He gave the following illustration. On the opening night of a new opera production the most experienced and highly regarded opera critic in the world can write a review for the next day's paper. It will be brilliant as usual, but it is "nonsensical" to think the other 700 people in the audience have nothing of value to add.

He likened this change in perspective to flipping a switch in our thinking. Do not think of the newspaper as being "on the web", but "of the web".

The Massachusetts Institute of Technology has made the decision to post all of their course materials on line. It is now accessible free of charge both to students and professors at other teaching institutions.

Through Galaxy Zoo "citizen scientists" take part in helping professional astronomers assemble valuable data for research and exploration.

Scientific data that gives a "leg up" to pharamaceutical companies working to develop cures, is now being posted on line by public-private partnerships that support the discovery of new medicines through open access research. The result is that cures are being developed years sooner than under the traditional model in which such data is proprietary and patented.

Does this open access, interactive model have any potential application to the provision of legal services in the civil justice system?

Who are these guys and why are they so happy? You're looking at Clio co-founders Rian Gauvreau on the left and Jack Newton (Slaw blogger) on the right; and they'll be smiling right now because they've just announced at Legal Tech that Clio has raised six million dollars in its Series B round of financing. From the Clio press release:

Clio will use this new funding to extend its product leadership position, aggressively developing new functionalities and supporting its growing customer base. In addition, the company aims to expand its footprint beyond the U.S. (which currently represents 95% of Clio’s sales) into other markets including Europe, Canada and Australia.

As the story in the Vancouver Sun explains,

Clio targets the majority of lawyers — those working solo or in small-scale firms — who want a reliable, convenient, low-cost method for managing their work flow. . . It is designed to streamline an array of tasks . . .

Our congratulations to Clio. It's great to see a company in the legal industry getting it right in these difficult times.

A number of months ago (but unremarked here on Slaw) The Canadian Judicial Council released a "Reference Guide for Judges Appointed to Commissions of Inquiry," [PDF] those investigative, often palliative, and sometimes corrective events with which all Canadians are familiar. This acts as a resource guide to accompany the Protocol [PDF] governing appointments of judges that the Council released back in August of 2010.

Part I serves as an Introduction to orientate the reader and briefly describe the purpose of the Protocol.

Part II offers a checklist of the types of things any commissioner will likely wish to consider as critical first steps in undertaking the inquiry and ensuring its smooth and effective operation.

Part III provides a list of past commissioners and information relating to the inquiries over which they presided.

Part IV includes sample provisions from previous Orders-in-Council (OIC), which are intended to assist the commissioner in determining whether the enabling OIC contains the necessary powers and authority to complete the commission’s mandate or whether revisions will be required.

Part V provides a list of reference materials including textbooks, academic journals and case law to which the commissioner might refer, when needed.

Most interesting, perhaps, for those of us not on the bench, is the Appendix which contains a "summary of key elements" of nearly 40 past federal and provincial inquiries, the names of which read like a "Who's Who" of Canadian disasters: Ipperwash, Walkerton, Dziekanski, Pickton, Neil Stonechild, and on and on. Surprisingly—or perhaps not—a number of the summaries of earlier inquiries consist of the repeated phrases "Unknown at present," "Terms of reference not available," or simply "Unknown."

Which points up the lack in the Council guide of any hyperlinks to inquiry materials online. As far as federal inquires go, the Privy Council Office and Library and Archives Canada have done a great job of putting a very large number of these reports online, even scanning earlier ones as graphic PDFs. For a semi-relevant blast from the past, you might enjoy looking at the inquiry into Canada's earlier spy scandal, the Gerda Munsinger affair.

After a 6 week break the Members of Parliament return to Ottawa today starting at 11 am ET. The Projected Order of Business mentions resumption of the debate over Bill C-25, Pooled Registered Pension Plans Act. CBC's Kady O'Malley has her take on today's proceedings over on the CBC website.

We are expecting a new Federal budget in the next few weeks. And according to CBC News Now, other major legislation that will be dealt with this session includes immigration, financial services review, copyright reform (Bill C-11), the omnibus crime bill (Bill C-10) and doing away with the long gun registry (Bill C-19).

Coverage is currently available from the CBC Politics page. You can also see Kady O'Malley's live coverage via Twitter from the Hill Ticker.

The Senate returns tomorrow.

At the end of each year we at practicePRO take a look at what articles, checklists, tips, and other resources had the most downloads. As always, the list contains many resources that remain popular year after year, though there are some items that stand out.

• The Sample Budget Spreadsheet, a supplement to our Managing the Finances of Your Practice page is the first resource to be downloaded over 10,000 times in a year.
• The revised of the LAWPRO Fraud Fact sheet had 3,500 downlaods. We saw an explosion of online fraud attempts against lawyers in 2011, and the Fact Sheet contains all the red flags to watch for to avoid being a dupe.
• Justice Carole Curtis wrote one of our more consistently popular papers on Dealing with Difficult Clients. This year she has a new entry on the list: Dealing with Difficult Judges.
• LAWPRO's Domenic Bellaccico's phone lit up with calls when he first wrote an article on Administrative Dismissals in 2009. In 2011 he wrote an equally popular follow-up: Administrative Dismissals, Part 2.
• As Twitter has grown in popularity among lawyers, we felt it was time put out some Essential Do's and Dont's for Twitter users. This article had about 2,000 downloads.

The full list of the top downloads can be viewed here, as well as the Top 40 lists from previous years. Have a look to see what other lawyers are reading!

On January 24th, Google announced a sweeping overhaul to its privacy policies that will take effect March 1, 2012. Rather than maintaining 60+ distinct privacy policies for its various properties, Google has created a single, unified privacy policy that will provide what Google describes as a " beautifully simple and intuitive experience" across all of the company's sites.

The company should be commended for rolling out these changes in a completely transparent way: it has advertised the changes across its properties, and given users over a month to review the changes prior to them taking effect. Google's educational site does an admirable job of outlining the motivation for the changes. However, this does little to address concerns the updated privacy policy will provide Google an all-too-powerful window into our lives.

Importantly, the change in the privacy policy broadens the scope of how Google can use information gathered from its users:

We use the information we collect from all of our services to provide, maintain, protect and improve them, to develop new ones, and to protect Google and our users. We also use this information to offer you tailored content – like giving you more relevant search results and ads.

The new policy allows Google, for the first time ever, to freely share information between its various sites so it can create a more accurate model of users' interests and, thus, target ads more accurately. Short of deleting your Google account, there is no way to opt out of the forthcoming privacy changes.

Google's announcement has already generated a substantial backlash among users and lawmakers alike, forcing the company to defend the upcoming privacy policy changes.

Many users would rather give up a bit more privacy than give up Google. How about you?

There are some very interesting items in the T&C (Terms & Conditions) that most people never read. The tendency is to click, click, click just to get to the end quickly. The T&C for iCloud is around 12-13 pages long, depending on the device used to view it. So let’s dive right into some of the “features” presented in the T&C and what they may mean.

First, you are required to have a compatible device, duh? It also states that “…certain software (fees may apply)…” whatever that means. There are a lot of words about the location-based services and what Apple and its partners can do with the collected data. Make sure you understand the cloud collects GPS location, crowd-sourced Wi-Fi information, cell tower location, device ID, Apple ID, etc. That sounds like enough information to be personally identifiable to us. There are no words on how long they store the data, if at all, but we’re pretty sure they don’t throw it away after processing. You can opt out of the collection by not using any location-based services, which we doubt many will do.

One interesting item is “The Find My iPhone and Find My Mac features are intended for your personal use only.” Does that mean you cannot use the features in a commercial setting? Probably not, but it’s not very clear.

Apple doesn’t take any responsibility for the integrity of any content stored in iCloud. In other words, you are on your own so don’t assume that you can actually use any of the data that you may transmit to iCloud. There’s a whole sentence in capital letters that states “…Apple does not guarantee or warrant that any content you may store or access through the service will not be subject to inadvertent damage, corruption, loss, or removal in accordance…” Geez, you call that a backup solution? Apparently not, since a few pages later they say “You are responsible for backing up, to your own computer or other device, any important documents, images or other Content that you store or access via the Service.” Also, if you enable the iCloud “backup” your device will no longer get backed up to iTunes during a sync. Does that make sense? There is no guarantee that content in iCloud will be usable AND it won’t be in iTunes any more. To us, that is pretty amazing.

You might reasonably think you’ll be notified whenever the terms change or the service is terminated but we doubt it. “Apple may post on our website and/or will send an email to the primary address associated with your Account to provide notice of any material changes to the Service.” That word “may” is a killer. Sure, Apple may protect your privacy too, just like Facebook. We’re not exactly buying the “trust me” language in light of the historical evidence.

Be aware that Apple will automatically bill you for any storage upgrade fees in advance of the service being provided. This means your credit card will be charged on an annual basis until you cancel so make sure you cancel prior to the renewal time. At least Apple will give you 30 days notice via email so you can react accordingly. Good thing since any fees and charges paid by you are not refundable unless you contact Apple within 45 days of the yearly payment.

One of the more disturbing provisions states that Apple will give your data to any law enforcement authority, government official or third party if they feel it appropriate, necessary or legally required. That’s pretty scary and there is nothing that says Apple will even give you notice that they are giving over your data. Apparently your data is not encrypted in iCloud or Apple has the decryption keys, which still means unintended parties can see your data. This means that iCloud is NOT an acceptable service for attorneys that keep client information on their iDevices.

Another scary provision allows Apple to change your content “…to comply with technical requirements of connecting networks or devices or computers.” We assume this means the changes are such things as image size, etc. and not the actual substance, but the words don’t restrict even that.

Towards the end of the T&C, there is a section that says you can’t sue Apple, its affiliates, officers, employees, etc. (they mention anyone that even remotely associates with Apple). You can say that all you want, but we’re not sure that it will hold up in court. And it sure doesn’t give any attorney a lot of comfort that he/she is dealing with a reputable vendor.

The message is to always READ the terms of service. After reading this one, we can’t see why anyone, especially an attorney, would want to use the iCloud service – it looks like a per se ethics violation to us.

Fair use (s. 107) is an intentionally drafted ambiguous provision in the U.S. Copyright Act for the purpose of defending users of copyright works from a variety of otherwise infringing acts. Although often compared to the Canadian fair dealing, the two defenses are quite different. Two interesting documents on the analysis of fair use and its interpretation were recently released.

General Counsel from the U.S. Patent and Trademark Office released a memorandum on 19 January 2012 on: USPTO Position on Fair Use of Copies of NPL Made in Patent Examination. The memorandum looks at three issues: Whether it is fair use of the USPTO to make copies of copyrighted non-patent literature (NPL) and provide such copies to an applicant in the course of patent examination? Whether it is fair use for the USPTO to provide certified copies of entire file histories, including copyright NPL to members of the public, for a free? Whether it is fair use for an applicant to make a copy of a piece of copyrighted NPL and submit it to the USPTO?

Code of Best Practices in Fair Use for Academic and Research Libraries was published on 25 January 2012 by the Association of Research Libraries and the Center for Social Media. This document addresses various questions such as how to make libraries' special collection available online; what can be digitized for student use; and, reproducing materials for faculty, staff and other users.

Those who apply fair dealing or fair use or are generally interested in these topics will find the discussions and analysis interesting in both of these documents, though at the end of the day, the application of either of these defenses very much depends upon the circumstances in each particular situation.

Steven Slevin had a lifelong history of mental illness. On August 24, 2005, Slevin was charged with driving while intoxicated and receiving or transferring a stolen vehicle, and checked into the Dona Ana County Detention Center.

He was placed in solitary confinement, and remained there for approximately 18 months. He was briefly released for 14 days to receive psychiatric care and was returned to solitary confinement, for a total of 22 months, before the charges were dismissed and he was released on June 25, 2007 due to incapacity of participating in his own defence.

Slevin files suit on December 23, 2008, and on January 24, 2012 a jury awarded him $22 million, $6.5 million in punitive damages, and $15.5 compensatory damages for deprivation of constitutional rights, including the right to humane conditions of confinement, the right to receive adequate medical attention, and depriving him of procedural due process.

The court documents, including the complaint, trial briefs, and jury verdict, are available here. The county is expected to appeal the decision.

The inability of prisons to deal with mental health problems has long been recognized. The World Health Organization (WHO) estimates there are 450 million people with mental illness, who are highly represented in prisons populations,

The disproportionately high rate of mental disorders in prisons is related to several factors:

• the widespread misconception that all people with mental disorders are a danger to the public;
• the general intolerance of many societies to difficult or disturbing behaviour;
• the failure to promote treatment, care and rehabilitation,
• and, above all, the lack of, or poor access to, mental health services in many countries.

Prisons are often used as a dumping ground for those with mental health, and conditions there usually exacerbate mental health disorders. Improper treatment of mental health also has a cost to prison operations, because such inmates require specialized care and often more attention than others who are incarcerated. The high cost of incarceration, rather than publicly-funded medical care, means that the costs of inappropriate treatment of the mentally ill are passed on to the public.

Although damages as high as those awarded to Slevin would not likely be found in Canada, it is a reminder of the public cost of the government's omnibus crime package, Bill C-10. Jerry Madden, a conservative Republican and head of the Texas House Committee on Corrections, responded to Bill C-10 last fall,

It's a very expensive thing to build new prisons and, if you build 'em, I guarantee you they will come. They'll be filled, OK? Because people will send them there.

Let's just remember who we will inevitably be filling these prisons with.

How the U.S. Lost Out on iPhone Work

from the Jan 21, 2012 online New York Times

Apple executives say that going overseas, at this point, is their only option. One former executive described how the company relied upon a Chinese factory to revamp iPhone manufacturing just weeks before the device was due on shelves. Apple had redesigned the iPhone’s screen at the last minute, forcing an assembly line overhaul. New screens began arriving at the plant near midnight.

A foreman immediately roused 8,000 workers inside the company’s dormitories, according to the executive. Each employee was given a biscuit and a cup of tea, guided to a workstation and within half an hour started a 12-hour shift fitting glass screens into beveled frames. Within 96 hours, the plant was producing over 10,000 iPhones a day.

….

Another critical advantage for Apple was that China provided engineers at a scale the United States could not match. Apple’s executives had estimated that about 8,700 industrial engineers were needed to oversee and guide the 200,000 assembly-line workers eventually involved in manufacturing iPhones. The company’s analysts had forecast it would take as long as nine months to find that many qualified engineers in the United States.

I guess that's because so many chose the easier path and became lawyers, right (g, d & r)

It's not just Apple, of course.

Another few more tidbits on the next screen

‘I Want a Glass Screen’

In 2007, a little over a month before the iPhone was scheduled to appear in stores, Mr. Jobs beckoned a handful of lieutenants into an office. For weeks, he had been carrying a prototype of the device in his pocket.

Mr. Jobs angrily held up his iPhone, angling it so everyone could see the dozens of tiny scratches marring its plastic screen, according to someone who attended the meeting. He then pulled his keys from his jeans.

People will carry this phone in their pocket, he said. People also carry their keys in their pocket. “I won’t sell a product that gets scratched,” he said tensely. The only solution was using unscratchable glass instead. “I want a glass screen, and I want it perfect in six weeks.”

After one executive left that meeting, he booked a flight to Shenzhen, China. If Mr. Jobs wanted perfect, there was nowhere else to go.

For over two years, the company had been working on a project — code-named Purple 2 — that presented the same questions at every turn: how do you completely reimagine the cellphone? And how do you design it at the highest quality — with an unscratchable screen, for instance — while also ensuring that millions can be manufactured quickly and inexpensively enough to earn a significant profit?

The answers, almost every time, were found outside the United States.

And this – for those of you who need something when an American acquaintance says something about Canada subsidizing Canadian companies competing with US companies in the US

For years, cellphone makers had avoided using glass because it required precision in cutting and grinding that was extremely difficult to achieve. Apple had already selected an American company, Corning Inc., to manufacture large panes of strengthened glass. But figuring out how to cut those panes into millions of iPhone screens required finding an empty cutting plant, hundreds of pieces of glass to use in experiments and an army of midlevel engineers. It would cost a fortune simply to prepare.

Then a bid for the work arrived from a Chinese factory.

When an Apple team visited, the Chinese plant’s owners were already constructing a new wing. “This is in case you give us the contract,” the manager said, according to a former Apple executive. The Chinese government had agreed to underwrite costs for numerous industries, and those subsidies had trickled down to the glass-cutting factory. It had a warehouse filled with glass samples available to Apple, free of charge. The owners made engineers available at almost no cost. They had built on-site dormitories so employees would be available 24 hours a day.

The Chinese plant got the job.

Ouch. I expect the answers are (and will be) much the same here, for RIM.

3D keeps coming (and going). It's here now in the movies and threatens to poke itself (John-Candy-like) out of our TVs. It was there for a while about sixty years ago also at the movies and in the glories of Viewmaster. And just before the turn of the century before this one, stereographs or stereograms were popular, those almost double photographs that were viewed through a device that look rather like a small library card catalogue drawer.

Well stereographs have been brought back, this time by the New York Public Library, and thanks to the "miracles of modern science" you're able to see them with their pairs of pics nearly conjoined in pretty much 3D splendour. Stereogranimator lets you create animated GIFs (pronounced "jifs") or anaglyphs from the library's stock of old stereograph images.

The trick is to align the two photographs such that the animation flicks back and forth between them so rapidly that you lose a sense of motion and instead see three dimensions. You can find the latest efforts from the rest of the world on the site, observing that most people do a lousy job of it: the results flicker like jumping jack flash in a truly annoying way. An anaglyph would be easier on the eye, but then you'd have to have a pair of 3D glasses at the ready—which you might. (Instructions here on how to make your own 3D glasses, if you'd like to turn this into a winter weekend project with the kids.)

I've tried my hand at making depth, using the waterfall picture that you see below (click on the image to enlarge). And I've tucked the animated GIF result away below the fold so that Slaw's front page doesn't strobe like a broken neon sign.

Click on image to enlarge.

Now, prepare to be amazed . . . in a mild and gentle way:

GIF made with the NYPL Labs Stereogranimator

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.

Polyvore – A fashion shopper's playground, where users get to clip their favourite products from across the web and present them to others. There's a page as well where you can drag and drop separates to form the ensemble of your (momentary) dreams. This is perhaps the consumer's equivalent of Scrooge McDuck's bathing in currency. The bag is Prada.

MIT Technology Review (India) – The Mystery Behind Anesthesia – Courtney Humphries – "Mapping how our neural circuits change under the influence of anesthesia could shed light on one of neuroscience's most perplexing riddles: consciousness."

BBC News Magazine – Arctic Canada caught on 1919 silent film – Hudson Bay Company – This silent film, "The Romance of the Far Fur Country," made to mark the 250th anniversary of the Hudson Bay Company (in 1919) has been restored and digitized.

New York Times – The World's Most Exclusive Condominium – Frank Jacobs – And by condominium I mean a piece of territory shared, as it were, between two sovereign nations. The article talks about Pheasant Island between France and Spain, and then goes on to tell Canada how it and Denmark should solve their problem over Hans Island. Thanks.

Charlie Rose – The Brain Series – Charlie Rose – In more than a dozen hour-long videos, this TV interviewer leads panels of experts in an exploration of your favourite organ. Highly recommended.

Slate Magazine – Pearl clutching: how the phrase became a feminist blog cliché – Torie Bosch – "The phrase pearl clutching, which means being shocked by something once-salacious that should now be seen as commonplace, like sex, is ubiquitous on blog posts, especially in media geared towards women." I hadn't known.

The Inky Fool – The Fifty Most Quoted Lines of Poetry – M.H. Forsyth – #49: Full fathom five thy father lies. Which makes you wonder what a piece of work is man. If nothing else, this list will propel you out of your own pat rote rimes and into something… better.

YouTube – How Money is Made (1920) – (posted by Brain Pickings) – Another silent film from Canada, this one about the Royal Canadian Mint. "Do you remember biting that alleged half-dollar you took in change from the banana-man? Or dropping it on the table?"

McSweeney's – In Which I Fix
My Girlfriend’s Grandparents’ WiFi and Am Hailed as a Conquering Hero – Mike Lacher – A winter fable in which the Warrior takes on the Router and (very unlike me in similar circumstances) wins.

NPR – Sweet, Sour, Salty, Bitter … and Umami – Robert Krulwich – Listen to the tale of the discovery—and re-discovery—of umami, the fifth taste.

Do you rank attending law firm social events right down there on the popularity scale below having a root canal? If so, you’ll identify with a young lawyer in one of my seminars. He’d been told to attend a cocktail party being given by his practice group. Here’s how the evening went: “I had to work late, so when I rushed up to the boardroom, it was full of people at least 20 years older than me. I knew no one, and everyone else seemed to know everyone.” Another lawyer shot back: “Think yourself lucky. At our client event, I was the youngest, I knew no one—and I was the only woman in the room.”

First things first: law is a business of relationships. It follows that to develop business, you have to develop relationships. Much of this relationship-building takes place at events where you’re expected to start up conversations with people you don’t know.

Young lawyers are expected to “work the room” at firm events—but no one teaches them how. If they consequently avoid events like the plague, they become senior lawyers who find themselves tongue-tied at firm events. That’s a great example to the younger lawyers in the room!

The first thing is to remember that working a room is exactly that…work. It may be a social event, but you’re not there to kick up your heels and let down your hair. You’re there to work. So, just as you wouldn’t dream of going to a client meeting unprepared, you should never go unprepared to a work-related event.

Probably the most important information you need is who will be there. Who do you want/need to meet? What can you find out about them beforehand? What do you want to ask them? If your firm has a marketing department, they can help you with this. If not, a quick Google search should turn up major facts and possibly recent news.

Ideally, there should be a strategy meeting of the lawyers attending the event. If you have a marketing department, they should set up this meeting and bring any information on the guests. The lawyers should then strategize about who should meet whom, who should be introduced to whom, and what questions to ask whom. It’s more effective to work in teams of older/younger lawyers or lawyers from Practice Area A and Practice Area B.

Above all, lawyers attending the event should understand what the firm’s interest is in inviting the guests on the list. Relationship-building consists of making connections, deepening existing relationships, and maintaining long-standing relationships. At a minimum, you should know who on the guest list is a client and who is not—yet. Your marketing department can help by creating differently coloured nametags for clients.
The other thing to understand is that your goal is not necessarily to come away from the event with a piece of business; it’s to make contacts and have a reason to follow up with them. Since relationships are long-term, this event is part of a continuum that needs to be kept going.

Small, practical details make a big difference in overcoming that sinking feeling as you enter the room. Arrive early so you can start up conversations with people entering the room after you, rather than walking into a full room where everyone is already talking. Act like a host; it makes it easier to circulate and be at ease yourself when you’re trying to make other people comfortable. As you circulate, join groups of three to five people, or someone who’s alone. Two people are more likely to be having a conversation where an interruption would be intrusive. Put your nametag on your right side so that people shaking your hand can see it clearly.

Starting up the first conversation is a lot like delivering your first line onstage. If you can remember your first line, you’re off. Nametags can often give you your first topic of conversation. Maybe you know someone else in their organization, or maybe your research turned up some information about the organization. Keeping up with the news is important for anyone who regularly attends events: you’ll be very glad you invested the time when you meet someone whose company or parent just purchased another, or was purchased.

Whatever the topic of conversation, listen twice as much as you talk. The more opportunity you give the other person to talk, the greater an impression you’ll make. You develop a relationship by listening to the other person until you’ve found a point where you think you can help.

Once you’re into a conversation, if it didn’t begin with business you need to steer it in that direction. Ask about the type of business and their role. Ask about any changes, issues or problems that affect their business: what could they be headed for, and what might they need from you as a result? Find the problem—even when clients don’t know they have one. You aren’t looking to solve the problem right now; you’re looking for a reason to follow up.

In the final analysis, what people will remember is not what was said—after all, less than 20 percent of information is transmitted through words—but how it felt to be talking to you, the emotional imprint of the conversation. As long as you keep the spotlight on others and make them feel like stars, the emotional imprint of your conversation is immense.

Opening a conversation is only half of the skill needed for working a room; the other half is closing a conversation gracefully so that you can move on. I’ll talk about that in my next column.

Despite anecdotal evidence of jurors misbehaving when using the Internet and social media (for instance, the recent article on Slaw English Court Jails Juror Who Used Internet Search), a recent survey of members of the U.S. federal judiciary reveals that the problem appears less widespread than many assume.

The Federal Judicial Center was asked by a committee of the policy-making Judicial Conference of the United States to survey federal judges on the issue (response rate was 53%).

The results, based on the responses of 508 responding judges, indicate that detected social media use by jurors is infrequent, and that most judges have taken steps to ensure jurors do not use social media in the courtroom. The most common strategy is incorporating social media use into jury instructions (…) Also common are the practice of reminding jurors on a regular basis not to use social media to communicate during trial or deliberations, explaining the reasons behind the ban on social media, and confiscating electronic devices in the courtroom. Judges admit that it is difficult to police jurors.

Only 30 of the 508 judges who responded reported instances of detected social media use by jurors during trials or deliberations.

I wouldn't be surprised to find out that the situation is similar in Canada.

Maybe all the fuss over Juror (Mis)Behavior in the Information Age is exaggerated. Of course, it is also possible that a lot of the illicit juror tweeting, Google searching, LinkedIn'ing and Facebooking may very well escape the attention of judges. Most judges find out about juror misuse of Net media from tattling by other jurors or lawyers (perhaps lawyers who feel they are losing the case?).

Site news for those who read Slaw only via RSS or email

1. Comment Watch:

In the last week there were 33 comments. You might be particularly interested in these:

• the eight comments on Simon Fodden's "Apple's New iBooks Author" discussing the EULA required by that software
• the thoughtful exchange on Jamie Maclaren's column, "A Pay or Play Proposition for Access to Justice."
• the enthusiastic comments on Ruth Bird's column, "Professional Associations and Why They Matter"

You can subscribe to the comments on Slaw either as a separate matter (RSS, email) or as part of a subscription combining posts and comments (RSS, email).

2. SlawTips

This week's tips on SlawTips are:

• Wednesday: Research: Dig Deep

You’ll find a brief excerpt of this week’s tips on Slaw, but the links above will take you to the full versions, along with 100 more tips. Advice you can use — short and to the point — every Tuesday, Wednesday & Thursday.

You can get to SlawTips at either tips.slaw.ca or slawtips.ca and you can subscribe by RSS or email. You can also follow SlawTips on Twitter: @slawtips

3. Maritime Law Book Selected Summaries

This week's Maritime Law Book case summaries are in precis on Slaw and full at cases.slaw.ca.

• Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. 2011 SCC 61 [Judicial review]
• R. v. Spencer (M.D.) 2011 SKCA 144 [Search and seizure]
• Reference Re Securities Act 2011 SCC 66 [Double aspect doctrine]
• R. v. Rudge (D.) 2011 ONCA 791 [Criminal procedure]
• R. v. MacIntosh (E.F.) 2011 NSCA 111 [Delay and due process]
• Labatt Brewing Co. et al. v. St. John's (City) 2011 NLCA 75 [Property tax valuation]
• Girao v. Zarek Taylor Grossman Hanrahan LLP 2011 FC 1070 [Barristers and solicitors duty of integrity]
• R. v. Bambrick (R.) 2011 NLCA 79 [Sentencing]
• Anderson et al. v. Canada (Attorney General) 2011 NLCA 82 [Class actions]

Thus far, 195 summaries in total are available on cases.slaw.ca. You can subscribe to MLB-Slaw Selected Case Summaries via RSS or email.

I was writing a comment in response to Melanie Bueckert who pointed out that Manitoba is reviewing their law society library services, much like Nova Scotia when I realized the comment was longer than my usual Slaw post. I hope that Slaw readers will indulge me with their attention to issues facing law society libraries, especially in less populated jurisdictions.

Let me preface this post/comment by sharing that I have never worked in a law society library. As a law firm librarian, I rely on law society libraries, locally and in other jurisdictions, their services and collections, to supplement and augment what my team and I provide to our lawyers.

Melanie, Thank you for pointing to the Manitoba situation. I found portions of the linked document disturbing:

The major agenda item was a discussion about the way lawyers do research and the impact of that on how we will provide library resources in the future. We started by talking about why we are in the library business at all. The basic conclusion was that libraries are a tool to enhance lawyer competence which is part of the mandate of the Law Society. We talked about what has changed since Benchers last looked a libraries (2003) and, in particular, at the amazing progress of CanLII, the Law Society-owned virtual library. CanLII is hugely important in this discussion. Not because it is free, or because it holds a huge collection of cases (over one million), or because it has all Canadian statutes with point-in-time searching, or even because it has a powerful search engine.

It is unique and special because we own it. While there are many excellent commercial on-line research products, the most popular ones all have a major flaw. They are owned by American parents and the Canadian product will continue only as long as they feel it is commercially viable. When you buy books you own them. If it is a series like, say the Canadian Criminal Cases, and the publisher stops publishing the books, at least you own the books you already have. If, however, an on-line publisher goes out of business, you have been essentially “renting” the service and the day it shuts down you have absolutely nothing.

Because we own CanLII, we know it is a secure collection and that, Benchers agreed, is very liberating. It enabled us to explore library services in a whole new way.

Benchers noted that in today’s environment, paper libraries are not much utilized. We have already closed the libraries in Brandon, Dauphin and The Pas. We already provide free on-line access for lawyers practising outside of Winnipeg to Carswell’s LawSource in addition to CanLII. Thanks to the hard work of LDRC, the Winnipeg court house is already WiFi equipped. As the discussion continued, a vision for the future of libraries emerged. It looked something like this:

1. Continue to enthusiastically support CanLII and offer training to assist lawyers to take advantage of its amazing potential;
2. Over time, stop maintaining our paper collection;
3. Keep the historic collections and some texts and up-to-date technology in our libraries;
4. Train people on other free on-line research tools that are available;
5. Continue to provide free access for out-of-Winnipeg lawyers to LawSource as long as it is required to ensure access to adequate research materials.

Over the next few months we will be developing a business plan to implement this vision."

I LOVE CanLII. It should absolutly be fervently supported by the bar and bench in Canada. As this document states, it is OURS.

CanLII + free online research tools do not and cannot make for a competent complete, reasoned, and effective path to answer a legal research. Law society libraries could decide to discontinue purchasing print reports and statutes in favour of CanLII, but that is no more than a potentially useful cost saving collection development measure.

Would anyone suggest that free internet sources could replace their favourite text? Closing law society libraries, or reducing them to ineffectiveness through budget restraints, will put more money into the pockets of legal publishers as individual lawyers are forced to grow their individual collections. This in turn will increase the cost of legal services to the population.

Why would you hire a lawyer if you could answer your own question with CanLII and Google. Richard Susskind, do you have any comments???

Globalization takes its toll. This time the toll is to be paid by Americans who want to use works that had, according to US law at the time, entered the public domain but that have been removed from that status and place back under copyright by a 1994 act of the US Congress in order to bring that country into line with the Berne Convention for the Protection of Literary and Artistic Works. As you might imagine, a number of disappointed users sued the US government, arguing that according to the intent of the Copyright and Patent Clause of the American constitution once a work was in the public domain it could not be withdrawn from it. Last week the case was ruled on by the US Supreme Court in a 6-2 decision, Golan v. Holder, No. 10-545 [PDF]. Justice Ginsburg, writing for the majority, ruled that the law in question:

does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit.

As always, the SCOTUSblog is an excellent source for material surrounding the decision. To learn more about the musician, Lawrence Golan, who challenged the law, take a look at a couple of articles on the issue in The Chronicle: 1, 2.

The works affected in 1994, judged to number in the millions, are largely works by non-Americans that, as foreign works, were not as protected by copyright as were native works. The "recaptured" works included music by Prokofiev, Shostakovich, and Stravinsky; and:

books by H.G. Wells, Virginia Woolf, and C.S. Lewis; films by Alfred Hitchcock, Federico Fellini, and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso.

Canada ratified the Berne Convention in 1931, signed it in 1948, and acceded to current forms in 1970 and 1998.

Last year I told you about the plan to release a voluntary national standard for mentally healthy workplaces. The standard aims to help Canadian employers support the psychological health and safety of their employees by providing them with the necessary guidelines and tools to achieve measurable improvements in psychological health and safety in the workplace. A draft of the standard was released on November 1, 2011 without much coverage and a consultation period followed which ended January 6, 2012. The final Standard is expected to be published in late summer 2012.

Unfortunately, since the consultation period is over, the draft of the standard is no longer available online. You can still obtain a copy by calling the CSA Standards or any of their partners championing the development of the Standard.

Luckily, Cheryl A. Edwards and Shane Todd from Heenan Blaikie LLP have prepared a very in-depth analysis of the proposed Standard and you can view it here.

According to the Mental Health Commission of Canada, mental illnesses and mental health issues are the leading cause of short- and long- term disability in the country. The cost of dealing with these issues is in the range of $51 billion per year, with almost $20 billion of that amount coming from workplace losses.

Thus, it will be interesting to see how the government, advocacy groups, associations like the CSA, mental health agencies and private sector will assist employers with solutions, resources and tools to deal with this important issue.

In recent years, many Canadian home insurers have begun asking questions about dog ownership and, depending on the breed, impose policy exclusions, charge extra premiums, or decline home insurance applicants. These insurers maintain lists of breeds they consider problematic. These are not dogs that have already bitten someone (although that would be a problem) or lack training, they are breeds that are believed to have an above-average probability of inflicting a serious bite injury.

At the top of the list is the American Pit Bull Terrier and related breeds such as the American Staffordshire. These dogs are banned in Ontario and several municipalities across Canada. If your insurer underwrites dog ownership, it’s unlikely they will offer you insurance if you own this breed. Other high-risk dog breeds include the Rottweiler, Doberman, German Sheppard, Samoyed, Husky, Malamute, Chow, Akita, Wolfhound and several crossbreeds.

In the US, there are at least 75 breeds now appearing on various lists. These include breeds that many people would not suspect are a problem:

• AMERICAN BULLDOG
• AUSTRALIAN SHEPHERD
• BELGIAN SHEEPDOG
• BOSTON TERRIER
• BOXER
• BULLDOG
• FOX TERRIER
• FRENCH BULLDOG
• GOLDEN RETRIEVER
• GREAT DANE
• GREAT PYRANEES
• LABRADOR RETRIEVER
• LEONBERGER
• MASTIFF
• NEWFOUNDLAND
• PUG

If you are a responsible owner of one of these dog breeds, you may think it’s unfair of anyone to suggest that your pet is more dangerous than any other dog. The common argument is that there are “no bad dogs, just bad owners” and “all dogs are capable of inflicting a serious bite”. As a dog owner, I believe there is truth to these arguments. However, insurers make underwriting decisions based on their own claims experience, industry statistics, and actuarial assumptions. It is estimated that 460,000 Canadians are bitten by dogs every year and approximately 60 percent of victims are children. In the US, dog bite losses exceed $1 billion per year. These injuries account for approximately 1/3 of all homeowner’s insurance liability claims. Insurers have good reason to be cautious.

If you’ve been told by an insurer that your dog is considered too high a risk, shop around. There are companies that don’t have an issue with dog ownership or offer some flexibility. For example, the underwriter may approve your application if your dog has no history of aggression, is housed in a dog-run, or you are willing to accept an additional premium or policy exclusion.

You are also advised to check the liability section of your home insurance policy. Most cover liability for dog bites to specific maximums. However, if your dog bites someone, your insurance company will probably increase your premiums, exclude future dog-related claims from your coverage, or refuse to renew the policy.

Please note that my advice is not intended to replace that of a qualified insurance expert who has personally reviewed your specific benefits and insurance needs. If you want to learn more, the CBIA offers excellent insurance education articles and planning tools for lawyers at www.barinsurance.com.

Adding to David Canton's post this week, updating us on privacy and data protection developments, here is a release from our friend, Ontario's Information and Privacy Commissioner, Dr. Ann Cavoukian. And an interview with Steve Paikin at TVO.

It's NOT "just a number!" Commissioner Cavoukian warns of the ease of data linkages in an increasingly online world

TORONTO, Jan. 25, 2012 /CNW/ – Ontario's Information and Privacy Commissioner, Dr. Ann Cavoukian, says that people's perceptions of their privacy and anonymity online fall far short of reality. In fact, technology has evolved to the point that the seemingly unrelated pieces of information that people share about themselves online, may now be linked together, to create a detailed profile of an individual.

"We have reached a point where information – not only strongly-identifiable Social Insurance Numbers, but also IP addresses, licence plate numbers, and mobile devices – serve as pointers to personally-identifiable information, through an ever-expanding web of data linkages. This bears little resemblance to anonymous information," the Commissioner said.

New analytic tools and algorithms now make it possible – not only to link numbers to names – but to also combine information from multiple sources, ultimately creating an accurate profile of a personally-identifiable individual – and in the process, to reveal their online activities.

"Imagine a scenario where your 'anonymous' comments on a newspaper website or in an online chat forum, could be tracked back to you personally, simply by linking your IP address and browser data across multiple platforms," the Commissioner said.

The Commissioner's advice to consumers: As people share more and more personal information about themselves in new ways (such as personal blogs and social networking sites), they need to consider the nature of the information they share, and how their personal information might be used.

At the same time, she urges organizations that collect and use this data to offer consumers a clear, easy-to-use mechanism to opt out of the collection and use of their personal information. Better still – make privacy the default setting.

I have updated my Legal Research and Writing website with a new page on resources for teaching legal research and writing.

Included on the page are links to:

• online training video tutorials,

• legal research and writing journals, newsletters and selected articles,

• legal research and writing associations and blogs, and

• general teaching resources for teaching legal research and writing.

I suspect my page may not be complete, so if I have missed something, I welcome comments and suggestions for other resources.

The latest Statistics Canada job figures have made headlines again in Québec, with the numbers showing that about 3 people are unemployed for every available job (reported the Montreal Gazette today). Some say the numbers are a "blip" others say that they are very "serious debacle". The next quarter's stats will tell us more. While there is much dispute as to the source of these problems, it is clear they are resulting in a very tense labour situation.

Indeed, the new year has brought much high-profile labour strife in Canada, particularly in Québec in Ontario. Those labour disputes have even made international headlines. The Wall Street Journal reported on the situation on January 2:

Labor strife has been on the rise in Canada as unions push back against corporate cost-cutting drives and governments strive to reduce wage and pension costs. "Unions are under the gun; they really are on the defensive and companies, instinctively, are feeling aggressive," said Laurel Sefton MacDowell, a University of Toronto labor-relations expert and historian.

Unions wield immense power in certain industries in Canada and even more in Québec given its "particular" labour laws. Québec is alone among the largest four provinces to have a Labour Code which provides both for "card-check" access to unionization (making it easier to unionize – reflected in Québec's higher unionization rate) and strict anti-scab provisions (making it harded for employers to hold-out during a strike).

In tough economic times, are "defensive" unions helping or hurting the economy? Should companies be entitled to seek concessions at the table? Do Québec's laws make sense when compared with the other provinces?