slaw

On May 22 the B.C. Supreme Court issued an interesting ruling in Vilardell v. Dunham, 2012 BCSC 748, an application that arose out of a family law proceeding. The plaintiff had sought to be relieved of hearing fees, or fees for the use of the courtroom. It is important to note the fees in question were as existed under a version of the Supreme Court Rules that was repealed and replaced in 2009; hearing fees continue to exist (at least to the point of yesterday's ruling) but are reduced.

The Courthouse Libraries BC prepared an excellent and short summary.

The reasons are very long and I have had only a cursory look. Much, if not most, of the interesting analysis seems to be a result of interventions advanced by the Canadian Bar Association (BC Branch) and the Trial Lawyers Association in support of the applicant, along with that of the Attorney General of BC in support of constitutionality. The constitutional question at issue raised Charter and non-Charter questions.

The Court found the hearing fees to be unconstitutional on the non-Charter grounds. The essence of the issues and its ruling is laid out toward the end of the reasons:

[424] I summarize the submissions as follows:

(1) The TLABC submitted that the hearing fees wrongly impede access to justice, wrongly sell justice, and wrongly impede access to a superior court in violation of s. 96 of the Constitution Act, 1867 thereby interfering with judicial independence.

(2) The CBABC submitted that the hearing fees infringes the right of access to justice and offends the rule of law and is inconsistent with the Constitution. It also submitted that the hearing fees are in violation of s. 7 of the Charter, and that the hearing fees infringe s. 96 of the Constitution Act, 1867.
…
(4) The AGBC defended on the basis that it submitted that hearing fees were not inconsistent with any constitutionally guaranteed right of access, with s. 96 of the Constitution Act, 1867, or with s. 7 of the Charter.

[425] My conclusions are as follows:

(1) Access to the s. 96 courts is a fundamental premise of the constitutional arrangement of Canada which cannot be materially hindered by anyone (BCGEU) [British Columbia Government Employees’ Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214], including either Parliament or the legislatures, just as public and political discourse may not be abrogated by law (Alberta Reference) [Reference re Alberta Statutes, [1938] S.C.R. 100].

(2) The mandate of the province under s. 92(14) is to maintain, that is, to provide adequately for, the courts. It does not include the power to legislate in a manner that impairs the court’s ability to fulfill its proper role in a democracy. This responsibility is of precisely the same importance as the responsibility of governments to maintain the functions of legislatures and the executive branches of government. As a constitutional responsibility, the maintenance of the superior courts does not compete with the government’s discretionary expenditures.

(3) Hearing fees are a barrier to access imposed by one branch of government over another. For the reasons I have set out, this creates a constitutionally untenable appearance of hierarchy. The court cannot fulfill its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents. [My emphasis.] In this respect, the AGBC’s position that as long as the government does not interfere with the cases the court is permitted to hear judicial independence is respected, is an inappropriately constricted view of the court’s constitutional place. So is the notion that it may tell the public, whose interests may occasionally be adverse to those of government, that for them the courts are a “valued but last resort.” Courts must be available to the public on precisely the same basis as they are available to government: as a place they are free to attend when they seek an authoritative determination of a right or legal position according to law. Going to law is not a form of failure or an act of deemed unreasonableness: it is better understood as an affirmative act of faith in the authority of the law. [My emphasis.]
…
(5) Fees charged by government for services rendered in individual cases, such as filing fees, do not constitute impermissible impediments to access, and as such fall within the legislative ambit of the province under s. 92(14) and its responsibility for the administration of justice…

(6) The question posed by this case was limited to the constitutionality of hearing fees….To the extent Pleau is applicable to the issue in this case, I have accepted that court’s conclusions, and the distinction it recognized between hearing fees and fees for services….

The Charter question raised section 7:

[419] I have considered whether the plaintiff has satisfied the test for a finding of a breach of section 7 of the Charter. The section reads:
Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the provisions of fundamental justice.

[420] The deprivations claimed are of two kinds:

(1) a deprivation of the plaintiff’s freedom to exercise her democratic input to access the courts on a matter of fundamental interest to her;
(2) a deprivation of security of the person by seriously interfering with the plaintiff psychological security and integrity.

[421] I accept the CBABC’s submission that…a custody hearing engages security interests of the highest order. I also accept the plaintiff’s evidence that the imposition of the hearing fees caused her personal anxiety.

The Court ultimately declined to answer the question because of its ruling on the non-Charter aspect, though it did say this about section 7 and Pleau v. Nova Scotia (Supreme Court Prothonotary) 1998 CanLII 12462, 186 N.S.R. (2d) 1, the existence of which case prompted the Court to invite intervenor submissions:

[422] I do not suggest that a case of this kind could not amount to a breach of s. 7 of the Charter. Nor do I specifically follow Pleau, which dismissed a s. 7 claim on the basis that the deprivation was with respect to access to the courts, and not personal liberty.

On May 11 a US District Court issued its long awaited decision in the lawsuit brought by three academic publishers against Georgia State University for its use of copyrighted materials in its "electronic reserves" system. A practice at many universities is to post scans of required classroom readings to secure "student only" websites or course management systems such as Blackboard. The GSU had developed a policy on the use of copyrighted materials that attempted to balance the rights of copyright holders and the University's fair use rights. The GSU policy includes a "fair use checklist" that is based on the four fair use factors in 17 USC § 107.

The Chronicle of Higher Education provides a clear account of the Court's decision. The Chronicle reports that the Court ruled "that only five of 99 alleged copyright infringements did in fact violate the plaintiffs' copyrights".

The text of the 350 page judgement can be found here.

For Canadian commentary on the GSU decision see Professor Ariel Katz's blog. Professor Katz suggests that if this case were decided in Canada that "the result could be 99-0 for the defendants". Professor Michael Geist calls Katz's post a "must-read" for Canadian university administrators. The GSU decision is especially interesting in that it comes at a time when Canadian universities are deciding whether to sign on to Access Copyright's model license that seeks to cover many of the same activities that the GSU case considered.

For some US commentary see the Brief from the Association of Research Libraries and these posts from Duke University's scholarly communications blog here and here. On the publishers/rights-holders side the Association of American Publishers has issued a Statement expressing "disappointment" and the US Copyright Clearance Centre also issued a brief statement along similar lines.

The Canadian Bankers Association just released a mobile payments reference model as a voluntary guideline for development of mobile payments at point-of-sale in Canada. In practice this means that your phone will have a mobile wallet that replaces your debit and credit cards. Phones with NFC (near field communications) will be able to use this feature to pay by holding it near a payment terminal similar to how we can now use the paypass feature on our cards. The CBA press release has links to the full guideline, and a summary version.

From the press release:

The voluntary guidelines, technically known as the Mobile Reference Model, will serve as a blueprint for how mobile payment capabilities can be offered in the Canadian market, including guidelines around how information is exchanged among various parties to a transaction including financial institutions, payment card companies, telecommunications companies and merchants. While voluntary, the financial institutions that developed the guidelines are committed to these principles in the mobile market, and these guidelines are intended to create a path to help all market participants move forward in developing mobile payment solutions.

Canadians are looking forward to being able to pay at point-of-sale with their mobile device, and today’s announcement of guidelines for mobile payments in Canada brings this closer to making it a reality. By developing a set of guidelines that all participants in the payments marketplace can work within, the goal is to ensure safety, security and ease of use for merchants and consumers while allowing for innovation and competition among market participants.

It will take some time for the technology to become widely adopted, but expect a lot of competition in this market. Consumers in some other countries are already using this technology. Rogers and the CIBC announced just after the CBA release that they are working on a mobile payments solution.

One of my closest friends is a senior litigation partner at one of the largest law firms in Australia. She has always worked part-time through an arrangement with her firm where she works more than full-time during hectic trial periods and then will take a few weeks or a month off during the various school holidays. I have always admired her tenacity in making this work despite some pushback from her partners when she first started this arrangement eighteen years ago.

Recently, she remarked to me that flexible work arrangements were now common at the large national and international firms in Sydney. I was very surprised as such arrangements are still uncommon in Canada. In fact many, if not most partners here believe that law (and especially litigation) is not at all suited to part-time work arrangements.

In a survey published in the Australian national newspaper The Australian on November 4, 2011, thirteen of the largest firms reported that 9.4% of their lawyers work some form of flexible work arrangements – either reduced hours or working from home on a regular basis. While this number is still small, the trend over the past five years shows a steady increase. Norton Rose (Australia) now has 40% of its female partners on some form of flexible work arrangement. Norton Rose has also been pursuing a strategy to increase their number of female partners. In 2005 only 9% of their partners were female. They set a target of 20% by 2011 and exceeded it by reaching 22% last year. They have now set a higher target.

The statistics out of Australia amongst senior female associates working part-time are even more remarkable. The firms average 28.6% (down from 31.5% in 2009) though Minter Ellison tops the list at 54.6% of their female senior associates working part-time. As these senior associates become partners, it is certain that they will not be giving up their part-time arrangements as a condition of becoming a partner. It is anticipated that the number of part-time partners will grow rapidly over the next few years.

So why has Australia – a country which some Canadians smugly think is more chauvinistic than here – moved so far ahead of us in adopting more flexible work arrangements? The answer is competition for the best and brightest law graduates. Law school graduating classes in Australia have been 70% female for the past many years. In Canada, our law school graduates are fairly evenly balanced between men and women with women sometimes graduating in slightly higher numbers.

The higher female graduates in Australia is a result of law being a first degree where you enter right out of high school. As anyone who has ever attended a high school graduation ceremony in Canada knows, it is overwhelming girls walking across the stage to pick up most of the academic prizes and scholarships. Fortunately, for Canadian boys, they have four years at university to improve their grades and enter law school now only slightly behind in numbers to the girls.

This dramatic “feminization” of the legal graduates in Australia has forced the firms to look for ways to attract and retain the best and the brightest grads who are now primarily female. Not surprisingly, more and more male lawyers want similar work arrangements as their female colleagues. While the great majority of part-time lawyers at the largest firms are female (87.4%) more male lawyers are also moving to part-time. Norton Rose has 15% of their male lawyers working part-time while Allens Arthur Robinson tops the list with 20% of their of their male lawyers choosing part-time work.

This is a trend that is not going away. With both parents in the workforce and working at equally demanding jobs such as law, medicine or accounting, more Canadian lawyers both male and female are looking for ways to manage their family responsibilities. The days of the at-home wife supporting the busy law firm partner are quickly fading if they haven’t already disappeared. The Australian study shows that it is not just lawyers with children who are looking for reduced hours or reduced stress from commuting. All lawyers are seeking ways to manage the stress of higher billing targets, higher housing costs, increased global competition, faster turn-around times and clients demanding lower fees.

Flexible work arrangements whether it is part-time work or simply less face-time in the office to reduce weekly commutes, is fast becoming the single most important recruitment and retention tool for law firms. If our Australian colleagues can make it work both financially and for their clients, then Canadian law firms can do the same. There’s a lot we can learn by looking Down Under.

As the status of the various Criminal Code provisions concerning prostitution floats its inevitable way upward towards the Supreme Court, now that the Ontario Court of Appeal has struck down some of them, readers of Slaw might like to learn something about how the matter is handled in other countries. The ever helpful Legal and Legislative Affairs Division of the Library of Parliament's Information and Research Service has released online a "Prostitution: A Review of Legislation in Selected Countries" (by Laura Barnett, Lyne Casavant, and Julia Nicol) [PDF].

The countries examined are Australia, New Zealand, the Netherlands, Sweden, England and the US states California and Nevada, each of which takes a somewhat different approach ranging from prohibition to legalization.

From the conclusion of the report:

. . . There is little evidence that any particular approach has met all of its objectives.

None of the countries and states examined in this paper have repealed all of their prostitution-related criminal laws. However, a number of governments have chosen to supplement criminal legislation with local by-laws, city ordinances, and other measures, thereby suggesting that, for many of these countries, prostitution is not simply a legislative concern. It is also a social and economic issue that calls for the use of public policy and other social intervention measures in order to address the needs of both individual sex workers and their communities.

Twitter is growing. There is no news in that statement. What is new is that they are now sending users a weekly email about what they are doing. They've also made a number of updates to their Privacy Policy and Terms of Service.

Privacy changes include:

• A tailored suggestions feature, which is based on recent visits to websites that integrate Twitter buttons or widgets, an experiment they are beginning to roll out to some users in a number of countries.
• They now support the Do Not Track (DNT) browser setting, which stops the collection of information used for tailored suggestions.
• Clarifying the limited circumstances in which your information may be shared with others

Slawyers will likely find this sentence from the update email interesting. "Importantly, our privacy policy is not intended to limit your rights to object to a third party's request for your information."

We Mireaus have a quarterly check on Terms and Privacy settings since parenting at our house includes responsible use of technology. I guess it is time to add Twitter to the calendar.

In the thesis I’m in the midst of writing, about burdens of proof in litigation between First Nations and the Crown pursuant to s.35(1) of the Constitution Act, 1982, I argue that the Crown invariably takes a position that denies any meaning to the guarantees of Aboriginal and treaty rights in that section, contrary to numerous Supreme Court decisions.

I’ve just come across a statutory example of the same sort of conduct in the Proceedings of the Senate Committee on Aboriginal Peoples, from May 31, 2010, almost two years ago.

In 2088, Parliament amended the Canadian Human Rights Act (CHRA) by repealing s.67, the section that exempted the Indian Act and its administration from the CHRA. The amendment took effect more or less immediately as regards the Indian Affairs Department and other federal agencies and three years later to First Nations or band council administrations. (The proceedings were actually about another recent bill that provides for division of matrimonial property on reserve, a matter not covered by provincial legislation.) When the bill was before Parliament a number of my colleagues observed that the bill would affect the federal government far more than band councils.

The witness before the Aboriginal Peoples Committee was the Deputy Chief Commissioner, Canadian Human Rights Commission, David Langtry and Valerie Phillips, Counsel, Legal Advisory Services, Canadian Human Rights Commission.

Senator Baker (Lib, NFLD) read a short quotation from the then recent report of the Canadian Human Rights Commissioner, “Since the repeal of section 67 of the CHRA, all complaints the commission has received have been challenged by the Attorney General on several issues including what constitutes a "service". Sen. Baker asked Mr. Langtry and Ms. Phillips to elaborate.

Mr. Langtry replied that the Commission had received a number of complaints since the Act came into force as regards the federal Government,

whether that be in the funding of services on reserves or the lack of funding for services …, as well as registration of Indians or what have you. … [I]n each and every case, the response from the federal government as respondent has been to say that it does not constitute a service under section 5 of our Act.

Section 5 of the CHRA (R.S.C., 1985, c. H-6 states:

5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public

(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or

(b) to differentiate adversely in relation to any individual,

on a prohibited ground of discrimination.

Ms. Phillips, Counsel to the Commission, elaborated further. The Commission has:

a mandate to deal with complaints unless it is plain and obvious that we lack jurisdiction. On our initial screening of a complaint we can reject a complaint only it is plan and obvious we lack jurisdiction. In the cases that we have received since the repeal of section 67, there is no case law preceding this situation, so it is not plain and obvious.

This effort to circumvent the plain meaning of a statute is all the more interesting because the CHRA amendment repealing s.67 was brought to Parliament by the same Government as has chosen to contest the authority of the CHRA, and to challenge it not where there is a real question as to its mandate, but where the limitation imputed by the Government “is not plain and obvious.”

Given that this pattern has recurred quite often it would be most interesting to see this question put as a Reference case to the Supreme Court: (1) Does the registration of persons under the Indian Act constitute a service? (2) Does the provision of funds by Canada to First Nations governments or band administrations constitute a service within the meaning of s.5 of the CHRA?

There are, of course, legal academics who may choose to say that there is no such thing as “plain meaning” and, hence, a limitation cannot be “plain and obvious.” I’m not entirely convinced this kind of argument deserves a reply. The reply I will nonetheless offer, begins with Supreme Court decisions in which other Government departments, CRA for example (or Revenue Canada) as it then was, relied on the treatment of the invoking of relatively esoteric (my word) definitions. (Will-Kare Paving & Contracting Ltd. v. Canada, 2000 SCC 36.)

In contrast, the Court favoured what Justice Major described as “the plain meaning” in its modern sense. (I’m not sure what is meant by “the modern sense, since the term goes back at least to 214 C.E. Perhaps some SLAW reader might help me out on that point?) Bryan Garner, in his discussion of “Plain Language” (A Dictionary of Modern English Usage, 2d ed.) begins with a quotation from Albert Einstein, who said that “his goal in sating an idea was to make it as simple as possible but no simpler.”

Plain language may not be identical in meaning with plain meaning, but I suggest that they have a significant overlap in this context. In Will-Kare, the Revenue Dept. produced a notion of “sales” that seemed to the Court to be quite out of line with the plain meaning. Major J. looked to two sources for the plain meaning of “sale” or “to sell”: (1) the parliamentary debates on the section in dispute; and, (2) the use of these terms by people in one or another market place.

To come back to the interpretation of the word “service” (which, like “sale” has both a verb form and a noun form each widely used) I wonder whether the plain meaning of service would be much harder to establish than the meaning of “sale” or “to sell”?

The repeal of s.67 was intended to give greater parity of services to people in First Nations (“living on reserve”) and those living elsewhere. The complaints against the Government will be more numerous than those against First Nations Governments because most of the administrative work done by First Nations is done under contracts, in which the band administration serves as the local agent of Indian Affairs.

If words such as “service” are to be defined in terms no one outside the Indian Affairs Branch and the Justice Department recognize what was the purpose of going to the trouble, over several sessions, of getting a bill through Parliament that would bring Government under the terms of the CHRA? If it is a policy goal of this government to eliminate excess fat from the public service, why are they keeping lawyers on staff with directions to produce these kinds of gratuitous arguments, contrary to the express will of Parliament.

It's May 2-4, even though it's only May 21, a holiday in Canada. So things will be pretty quiet here on Slaw today. Friends to the south or overseas, talk among yourselves. We'll be back bright and early tomorrow.

Where I am — Toronto — the holiday is generally known as May 2-4, because: it was created to celebrate the birthday of Queen Victoria, which was May 24th; and "a two-four" is slang for a case of 24 bottles of beer, i.e. that which often accompanies BBQ festivities on this first warm-weather (we hope) holiday in Canada. However, unlike other federal holidays (such as Canada Day), this one is pinned to a Monday, namely the last Monday before May 25.

Google makes up to 500 changes a year to its algorithm. The newest Google Algorithm change was released on April 24, 2012 and was dubbed Penguin. This update focuses on webspam and eliminating black hat SEO tricks, but it's likely that other changes to the previous Panda algorithm this year will also be referred to in pop culture as Penguin as well. Web analysts have been closely watching the effects of these changes over the past few weeks.

Entire industries are thriving primarily off of search engine results, and it's only a matter of time before law firms are dependent on search engines in the same manner. Penguin has so many small businesses concerned that it even made The Wall Street Journal, which covered two small businesses that observed a notable drop in sales as a result of search rankings.

The single most important change is that inbound links, which were previously given the highest priority for assessing web page quality, is now even more contextual, looking at the type of links and where they come from. Inbound links from link farms will now actually be penalized. (The impact on paid web directories is still being determined).

These tactics had previously been used by some small business, and even a number of law firms in Canada (who shall remain unnamed), by paying "web specialists" and online marketers to populate the Internet with links leading to their site. Google's rationale is that sites which employ these tactics are usually of poorer quality and less useful for the users. Consequently, after paying lots of money over a long period of time, this online marketing approach will actually hurt businesses rather than help them.

But not everyone penalized by Penguin was necessarily guilty of black hat tricks. Some sites who have performed well with Panda have been penalized by Penguin, due to the action of other sites they have no affiliation with. This has led to the interesting development of some sites threatening legal action against other sites who link to them:

It has come to our attention that your website or website hosted by your company contains links to <website> which results in financial losses by the company we represent, because of search engine penalties.

I request you to remove from following website (____) all links to <website> website as soon as possible. In order to find the links please do the following: 1) If this is an online website directory, use directory’s search system to find “<company>” links. 2) If there are hidden links in the source code of website, open website’s main page and view its source code. Search for “<website> in the source code and you will see hidden links.

I have a good faith belief that use of the material in the manner complained of is not authorized by <company> its agents, or the law. Therefore, this letter is an official notification to effect removal of the detected infringement listed in this letter.

I further declare under penalty of perjury that I am authorized to act on behalf of copyright holder and that the information in this letter is accurate.

Please, inform me within 48 hours of the results of your actions. Otherwise we will be forced to contact your ISP. < company > will be perusing legal action if the webmaster does not remove the referenced link within 48 hours. < company > will be forced to include the hosting company in the suite for trademark infringement.

As quaint and antiquated as some of us thought the issues discussed in Crookes v. Newton was at the time when it was released, Penguin gives an entirely different spin to the hyperlink issue, especially where a company can demonstrate that the linking led to a quantifiable business loss. But this letter was sent for a positive review which linked to the site, and did not originate from a questionable domain, which seems to suggest to me that the authors of the letter did not fully understand the implications of Penguin (or was an unintended recipient of a mass e-mail).

The other key lesson here is that much of the antagonism against "legal marketers" is actually misplaced. Terminology like "flawgers" is not only unhelpful, but it's actually misleading and demonstrates some ignorance. The corresponding term originating in web marketing, flogger, actually refers to bloggers who are impersonating another personality, similar to astroturfing. Instead, the focus should be on the type of advice that legal marketers offer to lawyers.

What will help small businesses and law firms is what would have always helped them - listening to Google:

Quality guidelines – specific guidelines

• Avoid hidden text or hidden links.

• Don't use cloaking or sneaky redirects.

• Don't send automated queries to Google.

• Don't load pages with irrelevant keywords.

• Don't create multiple pages, subdomains, or domains with substantially duplicate content.

• Don't create pages with malicious behavior, such as phishing or installing viruses, trojans, or other badware.

• Avoid "doorway" pages created just for search engines, or other "cookie cutter" approaches such as affiliate programs with little or no original content.

This means is original, quality content, written the way you would for a reader, and not for a search engine. Google even suggests that webmasters develop their sites as if search engines do not even exist, and focus on quality instead. If lawyers view blogs and websites as a way to exchange information with the public and between lawyers, creating a conversation of substantive issues instead of being oriented around marketing, they really shouldn't have a problem with Penguin.

Google does have a feedback form for sites who feel they have been unfairly hit, but because it's an algorithm change it's not clear how this would help.

A private member’s bill, Bill 96, the Electronic Commerce Amendment Act, 2012, was introduced on May 17, 2012, to amend Ontario’s Electronic Commerce Act.

The bill does three things:

i) It repeals the exclusion of land transfers from the E-Commerce Act (paragraph 31(1)(d) of the Act, s. 2 of the Bill).

ii) It requires for a land transfer that is electronically signed, that

in light of all the circumstances, including any relevant agreement, the purpose for which the document is created and the time the electronic signature is made,

(a) the electronic signature is reliable for the purpose of identifying the person; and

(b) the association of the electronic signature with the relevant electronic document is reliable.

It does so by requiring that s. 11(3) of the Electronic Commerce Act (whose text is quoted) applies to these documents. (Bill s. 1)

iii) It removes the exclusion of documents of title from the E-Commerce Act (by s. 2(2) of the Bill).

The Uniform Law Conference last August amended the Uniform Electronic Commerce Act to remove the exclusion of land transfers. In other words, item (i) above is consistent with the action of the ULCC.

What do you think of the other two provisions?

Altman Weil just released its Altman Weil 2012 Law Firms in Transition Survey. This is the fourth time they have released this survey. While a tad big US law focused, it does clearly show that the bigger firms are waking up to and addressing the profound changes and challenges that are occurring in the practice of big law. A good read for those with a bit of extra time this long (at least here in Ontario!) weekend.

They are, respectively, dropping and falling, these metaphors being used to describe the AUCC/ Access Copyright (AC) deal struck in in mid April. It being a month since that model deal was announced, it seems that mid May was given as a deadline for the schools that previously opted out to express their intent to sign the model deal. The long and strange journey of the AC copyright tariff for universities has been documented here at Slaw and at other locations fairly extensively; if you are interested in this issue you are no doubt aware of the developments. If you are not interested in these developments then you likely do not have someone close to you in university in Canada nor are you interested in copyright, fair dealing or open access, that last one should be a hook for many that haven't paid attention up until now because, as my Slaw colleague Michael Lines pointed out back in April, this model deal is a swipe against the the free flow of information and an attempt to cut open access off at the pass, so to speak.

The shoes, or dominoes, are: UBC which in announcing it will not sign the model deal, described the move as ""taking the bolder, more principled and sustainable option." The University of Calgary, in a nuanced statement has announced it will respond in the affirmative in intent and use the the interval before signing the deal to more closely examine the implications and options that are available. Athabasca University has also stated it will not sign the deal. MacMaster has announced it is signing on.

I'm not going to go into great detail here but a quick summary of the most objectionable points in the model deal include:

• Defining of a link as a "copy" of a work, despite what the Supreme Court of Canada stated in Crookes v Newton, 2011 SCC 47. The definition of a link in that case and previously in Canadian precedents seemed fairly clear to me where a hyperlink was described in para 2 "….as being a portal to additional, related information. Clicking on the hyperlink connects the reader to that information."
• Timing. A loooooooooooooooooooooooooong awaited Bill to amend the Copyright Act in on the precipice of being passed with revised definitions of the educational exemption and fair dealing. Perhaps this might have something to do with the timelines in the model deal?
• Licensing. Most universities already pay substantial amounts to various databases for the use of the material that is covered in the model deal so those that sign on, are signing on to pay for that material twice.
• Research. As in how to do it, the model deal attempts to dictate to scholars how they conduct their research and how they collaborate with their colleagues.

The above list is not exhaustive, I could go on but will refrain; but given that, why would an institution sign on? In short, cost certainty. There is little, that administrators like more than cost certainly and risk aversion, the model deal provides them with that, as in $26 per student, that will no doubt be added on to tuition fees this coming September. There really is not more nuance to add to it. This is simply a case of cost certainty winning over principle…. yet again.

The CBC is reporting that Justice Lederer today declared the 2011 federal election results in the riding of Etobicoke Centre to be null and void. The Conservatives won that seat by 26 votes, but, at the instance of Liberal candidate Borys Wrzesnewskyj that result will not stand. A variety of voting irregularities were noted by the court.

The judgment is available on the CBC website, included along with the report (a development I've long wanted; congratulations CBC).

The CBC notes that if the judgment is appealed, the matter goes straight to the Supreme Court.

Because two new Supreme Court judges were recently appointed, the Court has released an updated brochure [PDF] containing information about, and photographs of, the building and the judges. Little if any of what's in here will be news to most lawyers, but you might find it useful to pass on to anyone you'd like to educate about the top court, its jurisdiction and its history.

Some of the historical photographs are interesting, but all of the images could be improved: the PDF renditions are not sharp, and they lack captions. I particularly like the skeletal view of the building as it was (presumably) on the day the Queen Mother laid the cornerstone, a slice of which photo you see above.

New, in reference to time, could be one day, one week, or a couple of years. In law librarian terms, I still feel new to my job because it is contantly changing. If like me, you are a librarian who didn't go to law school, the Canadian Association of Law Libraries can help you cope with the burden of 'new'.

We have written before about CALL/ACBD's New Law Librarians' Institute. The institute is an intensive, week-long program aimed at developing librarians' skills in the key competencies of law librarianship. The program is an excellent mix of substantive legal topices (constitutional law, torts, contracts, criminal and property law) and skills sessions for the type of research that law librarians deal with on a daily basis. Class size is set at a 25 person maximum and it is an excellent opportunity to make quality contacts among leaders in the field.

Hosted at Western University in London, Ontario, the program runs from May 27 to June 1, 2012. There is still time to register.

Related posts:
A New Law Librarians' Institute? by Karen Sawatzky
New Law Librarians' Institute by Ted Tjaden
New Law Librarians' Institute 2011 by Connie Crosby

I'm not a big gamer. I had a blast with Angry Birds for a bit and then lost the lust for launching the anti-pig petards. So when I'm trying to kill time in the absence of wifi, I'll turn to good old solitaire — Klondike by threes, if it's of any interest. I've noticed something odd about the game, whether on my desktop, smart phone or tablet. At least, I think I have. The cards the computer serves up don't seem to be random. I'll have a four face up at the bottom of one of the columns and the next thing I know I'm awash in a sea of useless red fours from the pack. I envisage the game-makers grinning to themselves as they build in a nest of rotten "Easter eggs" designed to frustrate players like me.

On the other hand, the cards I'm dealt could be random. The thing is, there's no way to tell. Or, to put it more cautiously, there's no way to be 100% certain that the cards are not random. Because, if you think about it, any combination of the 52 cards in a deck is possible, even A, K, Q, J etc. Just as when it comes to the 649 lottery (an obscene $50,000,000 tonight) the numbers 1 – 2 – 3 – 4 – 5 – 6, for example, are no less probable than the numbers you picked. The cards don't know their names and neither do numbers, so they are indifferent, as it were, to human patterns.

So I reckon, in my fumbling way, that when it comes to cards, or indeed any selection of things, it's the process of selection or creating the order that we have to rely on: random is what's left after a certain number of shuffles of the cards.

Now when it comes to gaming, everyone knows about shuffling the deck or throwing dice. But how do you get randomness for other purposes such as computer programming my solitaire or choosing samples of populations for statistics? Turns out it's not all fun and games. And, thanks to random.org, I learn that I'm just the tiniest bit right about my computer-dealt solitaire hands.

Most computer programs needing to come up with randomness rely on programming, or "pseudo-random number generators" (PRNGs). Says random.org:

. . . using [a PRNG] corresponds to someone rolling a die many times and writing down the results. Whenever you ask for a die roll, you get the next on the list. Effectively, the numbers appear random, but they are really predetermined.

(I still don't see how numbers can "appear" random, though. But I'm next to innumerate, so I wouldn't.)

Random.org uses a "true random number generator" (TRNG) instead to produce randomness, specifically atmospheric noise as picked up by a radio and fed to their computer. So when in need of the really random — the best "shuffle" procedure available — the experts turn to nature ("Everything happens for no reason whatsoever"?). Ideally, radioactive decay produces the best source, but not everyone is equipped to hook up such hot stuff, which is why random.org contents itself with static, as it were.

Random.org is an interesting site. It offers you true random numbers in various guises, so the next time your office plays Secret Santa or somesuch, you can promise people that the game wasn't rigged. You can roll graphic dice, you can "quick pick" a lottery number for a Canadian lottery, you can get yourself a random password, or you can listen to "pure" (because random-generated) white noise. And, yes, I can shuffle a deck of cards here, too. Properly.

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.

Smithsonian.com – Clarence Birdseye, the Man Behind Modern Frozen Food – Jesse Rhodes – This is an interview with author Mark Kurlansky about his new book, Birdseye: The Adventures of a Curious Man. And it starts our focus on eating for this week's recommendations. It also represents our sole Canadian connection this week: Birdseye was in Labrador being shown by Inuit how to fish under the ice when he got the idea for fast frozen food. Of course, it wasn't Canada then, but . . .

Food 52 – Liyna and Anum's Big Feast: Building the Tandoor Oven – Anum & Liyna – In case you feel inspired by inventor Birdseye's story, here's a simple plan with pics for how to construct a tandoor oven and use it to make great naan. You've fixed that chair; you've changed that faucet; now go big — and hot!

ABC Science – Carrots & Night Vision – Dr. Karl – Mother was wrong, it seems. Again. Though they do nothing for your eyes, they do nourish. And the "myth" about night vision played a key role in WWII, it turns out.

NYTimes – A Mathematical Challenge to Obesity – Claudia Dreifus – A conversation with mathematician Carson Chow, who's developed some interesting ways of seeing what's happening to us. (If you're considering dieting, check out his sophisticated NIH online app to learn about how long and how few it will take.) Sad money quote: "There’s no magic bullet on this. You simply have to cut calories and be vigilant for the rest of your life."

The Washington Post – Pica, the compulsion to eat dirt and other oddities, is found in many cultures – Ranit Mishori – And chalk, and coins, and even books. Turns out that eating (low-cal) dirt isn't as abnormal as you might suppose. Still . . .

Serious Eats – Latte Art: How to Draw a Rosetta on Your Coffee – Meister – Though it's supposed to start the day, the latte now appears at any hour. If you've wondered how they get those palm leaves to float on the surface here's your answer. Easier than building a tandoor oven.

Video on TED.com – How to use a paper towel – Joe Smith – Seriously. This guy is worried about the waste of paper towels in public washrooms and has a method to save trees. Impressive. Here in this list because you're going to want to wash after getting BBQ sauce everywhere, right? (And before, too, of course.)

Examiner.com – Small space cabin is 96 square feet – Mark Leevan – And you're going to need a place to do all this building and eating and washing up. I recommend you maintain the concern about the environment and do it all in a small (but lovely) space. There's an article to accompany the slideshow.

Personality and Social Psychology Bulletin – The Challenge of Staying Happier: Testing the Hedonic Adaptation Prevention (HAP) Model – Kennon M. Sheldon & Sonja Lyubomirsky – And for desert, I've got an academic paper. On why events that make us happy gradually lose their potency and what you can do about it. So you can keep that great meal repeating, so to speak. But beware: as the authors say "striving for ever greater happiness may set one on a hedonic treadmill to nowhere." Bon appetit!

The scholarly journal is a form of publishing valued for being tradition-bound rather than path-breaking. The Philosophical Transactions of the 1665, which saw the very launch of this genre in England, is not all that far removed from the Philosophical Transactions A and B today (volumes 370 and 367 respectively). Certainly, in the early years, editor Oldenburg may have handled peer review with less formality, the references in an article may have amounted to referring to a letter from a friend, and the cover may have immodestly referred to its content as that of the ingenious. Yet for all of that, the journal of today is much like that of three centuries earlier. It was beginning to seem as if the introduction of a completely new publishing medium was going to have little enough impact on the scholarly journal.

In light of that seeming constancy, the recent emergence of the “mega-journal” is worth watching. It may represent the first major digital-era transformation of the journal. It is, in effect, the journal unbound. But not completely, by any means. Although Nature offers Scientific Reports and in the social sciences there’s SAGE Open, let’s consider the primary instance of the mega-journal. PLoS ONE is published by the Public Library of Science. Everyday. It published ten articles over the two days. One had only been submitted two months earlier, while others took no longer than six or seven months to reach publication. PLoS ONE’s total for the year will be upwards of 14,000 articles. It does suggest a new model is at work.

Who would subscribe to such a massive output? Who would imagine keeping up? No one. It has no subscribers. What would be the price for such a massive journal? Zero. The articles are open access. The journal is financed by article processing fees of $1,350 which are typically paid by the authors’ grants, which is feasible in the life sciences, which is as narrowly as this non-journal defines its scope (Scientific Reports is the same price, while SAGE Open has an introductory price of $395 better suited, one might say, to the social sciences; I’ll save my comments on open access fees for another time).

Peer review is still a very important part of this journal’s service, with one very important distinction. While holding that PLoS ONE will “rigorously peer review” all submissions; it will publish all papers that are judged “technically sound” by reviewers and editors, rather than sifting through submissions in search of the most original, significant, timely studies. The editorial principle is that “judgments about the importance of any particular paper are then made after publication by the readership,” as their website explains.

The journal’s support for post-publication judgment is part it of its innovation. Instead of gearing the journal’s content to score well in the Journal Citation Reports of the ISI Web of Science, PLoS ONE offers a plenitude of measures of readership response. These include “citation metrics, usage statistics, blogosphere coverage, social bookmarks, community rating and expert assessment.” This shift from placing a great deal of weight on a journal’s Impact Factor to allowing each article to be readily assessed in its uptake and impact, as one reads it, brings a great leveling of the field of play for authors.

Take “The Development of Open Access Journal Publishing from 1993 to 2009” by Mikael Laakso, Patrik Welling, Helena Bukvova, Linus Nyman, Bo-Christer Björk, and Turid Hedlund published by PLoS ONE on June 13th 2011. At less than a year old, it has very respectable metrics on many fronts, from the Web of Science to Facebook (fig.1). Click on More and one discovers that there have been 68 blog mentions, judging by Google Blog Search, with the results ready at hand.

Figure 1. Example of article-level metrics and social networking options for PLoS ONE

This may seem small enough, with the addition of a few links to the articles web page. But it stands as a powerful reminder that research is operating in a larger, more lively and dynamic world of information. It expands research’s reach through social networks that blur the line between the academic and the rest of life. Combining open access with a means of tracking how this knowledge circulates suggests a new place for research in public life. Although perhaps, it is no more than a return to the early days of the Philosophical Transactions, when this pamphlet-like work would have been a reasonably priced periodical sitting on a bookseller’s table outside the shop or available for browsing in a coffee house.

The metrics provide by PLoS ONE are also at least part of the answer to the very challenge of working amid the production of so much information. Journals have traditionally spent much energy filtering out much of the literature (measured by high rejection rates), so that readers wouldn’t have to. The mega-journal says, no to such filtering. Research today is so wide and varied that such highly discriminatory selectivity may often be a disservice to researchers. We are just as keen to search among the many, as browse the select few. And we are not alone in that quest. We are helped by the use made of the literature by those who share our particular interests.

Now, not everything about this crowd-sourcing approaching is working all that well. PLoS ONE’s sophisticated commenting system, with which comments can be made at the sentence level, provides an example of a not-yet, if-ever feature of post-publication judgment. Even among the most-viewed articles, annotation is hardly used, with perhaps one or two minor comments made. There is room, then, for us to still discover the value of such commenting in advancing a field.

With its combination of traditional pre-publication review, which remains a powerful force for improving a researchers’ work, and this post-publication tracking among both academic and public circles, the mega-journal appears to be both reinventing and unbinding the journal for the digital era. The promise it holds for extending the circulation of knowledge makes it one to watch in the years ahead.

Since it's not sponsored by the regular legal conference outfits, a conference in Toronto next month may have flown under the radar for the Slaw community. The first Symposium on Criminality in the Art and Cultural Property World will be held at Osgoode Hall, 130 Queen Street West, Toronto, on June 15-16, 2012. Next month, Toronto will be the centre of the art-legal world.

The conference is co-chaired by Bonnie Czegledi and Mr. Justice Patrick Healy, Court of Quebec, Criminal and Penal Division, Montréal, formerly Professor Healy from McGill, and the speakers are quite literally, the world's experts: Lawrence M. Kaye and Howard N. Spiegler, from the Art Law Group at Herrick Feinstein LLP, New York; Bonnie Magness-Gardiner, an archaeologist who is now the Program Manager of the Art Theft Program, Federal Bureau of Investigation in DC; Monica S. Dugot, who heads up Restitution at Christie’s, New York; Clarence Epstein, Director of Special Projects and Cultural Affairs, Concordia University; responsible for Canada's Max Stern Art Restitution Project, Montréal; Graham Ospreay, an expert in forensic documents and forgery; Kathryn Minard, of ArtAdvisory.com in Toronto; my old friend and colleague David S. Rose, author of DNA: A Practical Guide (Carswell), Neuberger Rose LLP, Toronto; and the Head of the Art Crime Unit, Netherlands Police Agency, The Netherlands;

Two years ago, Thomson West published a text by Toronto art lawyer, Bonnie Czegledi,entitled Crimes Against Art: International Art and Cultural Heritage Law. This conference stems from that work and her practice.

The jacket copy states:

Author Bonnie Czegledi reviews major art and antiquities crimes from the past century, including heists from the Montreal Museum of Fine Arts and Boston’s Isabella Gardner Museum, looting during World War II and the Iraqi-wars, forgeries committed by Han van Meegeren and the Greenhalgh family, and the underwater salvaging of the RMS Titanic. These and many other cases offer new insight into the motives of thieves, the legal and ethical challenges of recovery and restitution, and the devastating historical and cultural impact of art crime. Czegledi evaluates current international treaties and conventions designed to protect cultural property and offers suggestions to address and prevent art crime − from exercising collective due diligence in buying, selling, loaning, collecting and donating art to reforming legislation and increasing criminal prosecutions. Ultimately, Crimes Against Art is a call-to-action for a collective commitment to protect and preserve cultural property, our most precious non-renewable resource.

Interestingly, Thomson West explored the use of multimedia in promoting the book:

Interview with Bonnie Czegledi on the CBC`s THE CURRENT discussing the Illicit Trafficking of Cultural Property
Listen (runs 8:22)

Matt Galloway of CBC's Metro Morning spoke with Bonnie Czegledi. Listen (runs 6:25)

CBC Radio interview with Bonnie Czegledi

We may think of art crime as no big deal but according to the Association for Research into Crimes against Art, Art crime represents the third highest grossing criminal enterprise worldwide, behind only drugs and arms trafficking. It brings in $2-6 billion per year, most of which goes to fund international organized crime syndicates. First stops for any researcher are Interpol's site and the FBI unit dedicated to art theft. The RCMP didn't have a dedicated unit until 2008, which built on the pioneering work of a single Montreal officer of the Sûreté du Québec, labeled by the tabloids as the Colombo of Art . Not surprisingly, given the wealth of cultural patrimony in Italy, the Carabinieri has devoted significant resources to the fight against art theft.

There are two excellent blogs, that of the Association for Research into Crimes against Art and Derek Fincham's the Illicit Cultural Property blog.

Databases of stolen art are maintained by the FBI, the LAPD and at the Art Loss Register. Interpol's database is blocked off from browsing, as is Scotland Yard's. There are links to national sites at Saztv, Saz's index, and minor sites listed at Museum Security.

This is an area of the law we haven't focused on before, and there is more available worldwide than I would have thought. Most libraries will carry the journal once known as Art and the Law, which has morphed its title and focus to become the Columbia Journal of Law & the Arts. It started off as a monthly publication of Volunteer Lawyers For the Arts, which had published a Newsletter which sought to "report and comment on organizational services and legal issues affecting the rights of artists and the conditions of creative and performing activity". Columbia has a clinical programme devoted to art and the law.

An informative video on art law from a conference in Miami may whet your appetite, and Herrick's newsletters on art law litigation can be found on their website. The CBC has a nice piece from a Canadian perspective here.

Finally, as Sharon Williams has pioneered, we have the international law which protects cultural property in the event of armed conflict. After a slow start, in 1999, Canada added to the Cultural Property Export and Import Act (R.S.C., 1985, c. C-51) provisions to implement the 1954 UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict, and in 2005 Canada acceded to the two Protocols to the 1954 Hague Convention. These contain obligations that seek to combat illicit export of cultural property from occupied territories. In November 2005 the Act was amended to allow Canada to implement its obligations concerning illicit traffic in cultural property under both Protocols. As a result, the Act now prohibits Canadian citizens, permanent residents, and stateless persons residing in Canada from illegally exporting cultural property from an occupied territory of a State Party. The Act also now provides for the return of such cultural property to its countries of origin. Canada would, however, benefit from a public guide to this area of the law, as good as the French government's guide available here.

For those using Google's Custom Search Engine service, a recent post from Google announcing new features will be of interest. By utilizing these instructions, and making a small change to your on-page web code, you can now enable both date and relevancy sorting for your collections.

If you're using any kind of structured data or rich markup — extra classification on "site search" functionality, for example — you can also engage filtering by attribute to restrict the search results even further.

It's great to see that Google hasn't been forgotten their CSE web service. It's easy to use and very flexible. The fact that it's being improved on and moving forward… even better!

[Tip of the hat to Phil Bradley]