Torch is a scientific computing framework with wide support for machine learning algorithms. http://torch.ch/ Torch | Scientific computing for LuaJIT.
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from sixty recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
Environmental Law and Litigation
Divisional Court rejects anti-wind constitutional claim
Anti-wind protesters continue to lose all Ontario legal cases based on concerns about human health. After numerous anti-wind appeals to the Environmental Review Tribunal were rejected, because they did not meet the Environmental Protection Act / Green Energy Act test for stopping renewable energy projects, anti-wind litigants argued that the statutory test was itself unconstitutional and contrary to the Canadian Charter of Rights and Freedoms. The Ontario Divisional Court has now definitively rejected that argument….
Rule of Law
Zeligs v. Janes
Contests between siblings following the death of a parent over houses and bank accounts that were held jointly between the parent and one of the parent’s children are all too common. What happens is that a parent who was the sole owner her own house or bank or investment account transfers the house or account into a joint tenancy with one of her children. After death, the child takes the title by right of survivorship, but the other child or children protest….
Mind Your Ps and Qs
We’re probably all familiar with the expression, and from an early age – usually mom scolding us for being impolite at the dinner table, or some such scenario. But where does it come from? (Notice there are no apostrophes to mark possession. They are simple plurals. Just add s!) The origin of this very polite phrase is mired in rumour and speculation, and it seems a fanciful discussion to get us all back into the swing of things after the holidays. …
Global Workplace Insider
Evidence of Inducement Leads to Enhanced Notice Period
In its recent decision of Rodgers v CEVA, 2014 ONSC 6583, the Ontario Superior Court considered both what it means to induce someone to leave their job and the implications of that inducement upon termination. Rodgers had been employed by CEVA as its Canadian Country Manager, CEVA’s most senior Canadian position, for just under 3 years when his employment was terminated with two weeks’ pay in lieu of notice….
Canadian Legal History Blog
Promislow, “Treaties in History and Law”
Janna Promislow of Thompson Rivers University Faculty of Law has published an insightful reflection on competing legal historical perspectives in aboriginal treaty narratives in her article “Treaties in History and Law,”, published in the October 2014 issue of the University of British Columbia Law Review….
*Randomness here is created by Random.org and its list randomizing function.
Request for proposal. Those three words are usually the start of a slow churning stomach ache that burns until the moment your response is sent and received. And confirmed three times over. This is especially true, I have found many times over, if the request is lobbed into your office by a current client.
The potential to lose the work, and, I suppose, to lose face among both clients and colleagues, can be stressful.
Proposal responses do not require a law degree or legal drafting. In fact, they usually require plain language, practical responses and succinct promises. I often tell my clients at the outset of what’s often a long and painful exercise in drafting of a typical response that the language, tone and content is different from that of a legal document. As it should be because increasingly so, the evaluators are non-lawyers. They are your procurement department, the CFO, high level managers or board members who have little tolerance for proposal responses that are protracted and mundane. Even worse are those efforts that show little appreciation for client culture or needs.
The correlation between your understanding of the client and chances of retaining or winning work is high. Lawyers who know the client, their issues, preferences and history are equipped to appeal more directly to a client’s needs than anyone else. It’s also an opportunity to showcase your understanding of the individual clients and their organizational behaviour and culture. Why is this important, you ask? Well, because clients evaluate their lawyer relative to how well they understand their business and ability to provide value.
If there was ever a reason to invest in your client – attend AGMs or planning meetings without billing, ask questions that relate to internal culture and structures, get feedback and respond with adjustments as needed, meet other key members of the client’s executive team, introduce your juniors to theirs, set a Google Alert for the client, read their annual report – it is now, and hopefully ahead of the next proposal request.
If only for your most valued and critical clients, do ensure your billing system can easily and accurately present your billing history for these clients. Some clients are billed under multiple entities or variations of their company name, so do give some thought to how you can increase the accuracy of such a system search. Many RFPs ask for this history – even institutional clients, who you might expect would have this information readily available.
Remember, that RFP comes with a countdown clock which starts the minute you receive the request. The average deadline is usually somewhere between two and three weeks, but some require turnaround in mere days and necessitate working over an Easter weekend and Christmas holidays.
Understanding your best clients will not only give you a greater ability to meet their needs, you might just give them reason to shelve the next RFP.
Daniel Martin Katz and Michael Bommarito have posted slides from the first class session of their course entitled Legal Analytics, which they are teaching at Michigan State University College of Law.
Here is an excerpt from Dan’s post describing the slides:
Here is an introductory slide deck from Legal Analytics which is a course that Mike Bommarito and I are teaching this semester. Relevant legal applications include predictive coding in e-discovery (i.e. classification), early case assessment and overall case prediction, pricing and staff forecasting, prediction of judicial behavior, etc.
As I have written in my recent article in Emory Law Journal – we are moving into an era of data driven law practice. This course is a direct response to demands from relevant industry stakeholders. For a large number of prediction tasks … humans + machines > humans or machines working alone.
We believe this is the first ever Machine Learning Course offered to law students […]
The agenda for the MIT workshop seems to be unavailable.
One Twitter hashtag for the workshops was #decentlaw
These workshops have been announced on the Website of the Berkman Center’s study group on Legal, Social, and Economic Aspects of Cryptoledger-based Technologies.
Here is a description of the MIT workshop, from the announcement:
[…] A workshop examining the interplay between blockchain technologies including distributed cryptoledger technology, decentralized identity, and policy frameworks and legal infrastructure for existing regulatory regimes. The workshop will gather select lawyers and entrepreneurs involved in the deployment of distributed ledger applications, in order to sketch out a techno-legal framework that could resolve foundational issues common to these emerging innovations.
The goal is to examine the current applications and potential opportunities of cryptocurrency and distributed ledger technologies in order to create a viable working document outlining appropriate adaptations and integrations to existing legal infrastructure and policy frameworks. The workshop participants will distill the current state of the art of blockchain-related technologies into a set of recommendations and open questions concerning potential applications of distributed architecture and how they can be regulated within the existing legal and policy frameworks, as well as recommendations with regard to different areas (e.g., modification of existing financial services laws to distributed architectures (i.e., travel rule for p2p transfers), identification of common business models exempt from oversight, model safe harbors and scalable requirements for startups, blockchain innovations relevant to AML/KYC/financial controls/corporate governance, permission-based requirements, appropriate sphere of regulated activities, CSBS or NYDFS proposed policies). […]
Here is a description of the Berkman Center workshop, from the announcement:
[…] A workshop organised in the framework of the Study group on Legal, Social & Economic Aspects of Cryptoledger-based Technologies at the Berkman Center for Internet & Society, examining the interplay between blockchain technologies including distributed cryptoledger technology and existing legal infrastructure or regulatory regimes. The workshop will gather a small group of lawyers and entrepreneurs involved in the deployment of distributed cryptoledger-based applications in order to sketch out a techno-legal framework that could resolve the issues that most of these applications are currently facing, without hindering their distributed potential and decentralized character. […]
The goal is to examine the current applications and potential opportunities of cryptoledger technology to create policy recommendations outlining appropriate integrations to existing legal infrastructure. Ideally, the document will contain a set of recommendations concerning potential applications of distributed cryptoledger technology and how they can be regulated within the existing legal framework, as well as recommendations with regard to different areas that should either be better regulated or rather be left unregulated. The workshop participants will also come up with potential recommendations (in the US context) to reform existing laws or regulation that may prevent innovation around these technologies. […]
The conference program is available at: 2015tig.sched.org/
One Twitter hashtag for the event was #lsctig
Here is a description of the conference, from the conference Website:
The TIG Conference is the nation’s largest gathering of experts and persons interested in the use of technology to address the civil legal needs of low-income Americans.
Here is the abstract:
Many state governments publish primary legal material online, potentially saving money, increasing efficiency, and expanding access to such material. However, the transition away from print raises many important questions about the management of electronic legal information, including issues related to the trustworthiness of the information as it moves from the content originator to the end user. In states publishing primary legal material online, it is critically important that state officials take steps to ensure that the electronic legal information they publish is unaltered and can be verified as authentic. Digital authentication solutions assure users that the material is trustworthy and has not been altered since dissemination by a trusted source.
These best practices, which stem from analyses of other studies and discussions with countless experts in the field, are designed to help cut through the confusion related to the selection, implementation, and maintenance of a digital authentication solution for the electronic publication of official legal material. The authors created these best practices because they are in states on the leading edge of state government publication of official, authentic versions of primary legal material online, and they personally observed a need for this guidance. As such, they created these best practices primarily for use by those charged with implementing and investigating digital authentication solutions, but they may also benefit anyone interested in digital authentication.
The submission deadline is 31 March 2015.
Here are excerpts from the call:
[…] At the Law Faculty of the University of Oslo, Jon [Bing] co-founded – as early as 1970 – the Norwegian Research Centre for Computers and Law (NRCCL), and worked tirelessly over the years to establish it as a leading international research hub. It was characteristic of Jon’s commitment to an interdisciplinary approach, and further evidence of the breadth of his knowledge and understanding of the field, that the many researchers who visited NRCCL included most of the key figures in the development of the field of Artificial Intelligence and Law. Together with some of his NRCCL colleagues, Jon participated in several of the International Conferences on AI & Law, and co-chaired the organization of ICAIL 1999, held at the University of Oslo.
It is therefore highly appropriate that the editors of Artificial Intelligence and Law have decided to publish a special issue of the journal in Jon’s honour. Submissions are sought of papers that either discuss aspects of Jon’s own contributions to AI and Law, or else address issues related to Jon’s work in that field. Given the very wide range of Jon’s interests, the proposed remit of the special issue is suitably broad in scope. Authors should follow the instructions for document preparation and submission described at www.springer.com/computer/ai/journal/10506
The deadline for submissions will be March 31 2015. The provisional plan is to publish the selected papers in the fourth issue of the 2015 volume. The guest editors of the special issue will be Emily Weitzenboeck (Senior Associate, Wikborg, Rein & Co. Advokatfirma DA), Tobias Mahler (Associate Professor, NRCCL) and Andrew Jones (Emeritus Professor, King’s College London, and an associate member of NRCCL 1986-2001) […]
For more details, please see the complete call.
HT Anne Gardner
Cacio e Pepe Recipe – Bon Appétit http://www.bonappetit.com/recipe/cacio-e-pepe
Sometimes judges get it wrong. Even when they sit on the highest court of the land.
The nature of the common law is that decisions which are poorly written (a generous excuse for decisions which are poorly decided) still have binding authority, especially when made by the Supreme Court of Canada.
The interpretation of freedom of association under s. 2(d) of the Charter has undergone considerable change over the years. Courts generally applied a restrictive approach towards this right, until the 2007 decision in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia (“B.C. Health“), where the court effectively pushed back against the province’s attempt to override unionization rights in the health sector.
The implications of appearing to provide the right to collective bargaining in this decision created significant waves across the bar. This enthusiasm proved short-lived, as the Court subsequently released a decision in 2011 in Ontario (Attorney General) v. Fraser (“Fraser“), which scaled back the interpretation of B.C. Health. The Court that s. 2(d) did not provide a right to unionize or collective bargaining (except for in a “derivative” sense). They upheld the use of agricultural associations under the Agricultural Employees Protection Act, created after the Court’s decision in Dunmore v. Ontario (Attorney General).
This week, everything we thought we knew about labour law in Canada and s. 2(d) changed with the Court’s decision in Mounted Police Association of Ontario v. Canada (Attorney General) (“Mounted Police“), indicating that the RCMP have a right to meaningful collective bargaining. Strangely enough, a very similar issue appeared before the Court 15 years ago in Delisle v. Canada (Deputy Attorney General), which came to a different conclusion that the exclusion of the RCMP from Public Service Labour Relations Act was constitutional.
The Court is allowed to change its mind. Judicial flexibility is one of the key hallmarks of independence. But when the law and interpretation of the constitution shifts so drastically, it also leads to some very creative legal writing.
Its not entirely the Court’s fault. Ask 9 judges to rule on something, and you might get 10 different opinions. Or, ask 7 judges to interpret s. 2(d) in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner) (“PIPC“) and you will get 5 separate decisions. Alternative arguments are the hallmark of a dedicated litigator, so it’s no surprise that alternative reasoning should litter the landscape of the common law.
The sole dissent in Mounted Police was Justice Rothstein, who was the same judge who had the courage in Fraser to point out how the court had erred in B.C. Health. As I have noted here before, the Court based its decision in B.C. Health in part on international labour law, but referred to the wrong convention. There is no way to mince words around this, that the Court got this citation and interpretation of international law incorrect.
The other features of Mounted Police is open for dispute over its interpretation of existing case law. The majority attempted to justify its decision by indicating at para 74 that the holdings in both B.C. Health and Fraser were limited to the legislative schemes which were at issue. They display considerable intellectual honesty by conceding at para 77 that use of terminology in Fraser “unnecessarily complicate the analysis” when looking at s. 2(d) rights. Unfortunately the clarity of what the Court actually meant in both B.C. Health and Fraser has only become apparent years later in Mounted Police.
For this reason, Justice Rothstein provides a very sharp and pointed dissent, emphasizing the importance of judicial deference to the legislature, even in constitutional matters,
 Courts must be especially cautious when dealing with questions of socio-economic policy. Just as the government and legislature must respect the courts’ expertise as judicial bodies, so too must courts appreciate that they are not best placed to make determinations as to which specific social or economic policy choice is most appropriate. The evaluation and implementation of social and economic policy require flexibility and fine-tuning. Courts should not expand Charter rights in such a way as to prevent governments from responding to new information or changing social and economic conditions.
The majority justified its departure from its own previous, and relatively recent decisions, by using a purposive approach to constitutional interpretation. They employed the categorization employed by Chief Justice Dickson’s dissent in the Reference re Public Service Employee Relations Act (“Alberta Reference”). B.C. Health signaled a marked departure from both PIPC and the Alberta Reference by providing greater purpose to s. 2(d). However, the issue with the Court’s more recent jurisdiction on s. 2(d) is not so much about whether a purposive approach should be employed, but rather what the purpose and content of s. 2(d) is.
The Ontario Court of Appeal in Fraser interpreted B.C. Health as constitutionalizing the Wagner model of labour relations. On a practical reading, this certain appears to be what the decision states, despite assertions to the contrary at para 91. The Supreme Court in Fraser held that the Court of Appeal’s interpretation was a mistake, and no particular model of labour relations is guaranteed by s. 2(d).
At para 95 of Mounted Police the Court appears to maintain this position, indicating that the Wagner model is not the only way of ensuring meaningful collective bargaining. The majority left it open to parliament at para 137 to explore what options outside of the Wagner model might be available to it for the RCMP. Aside from the newly-formed and untested designated school board model, created under the School Boards Collective Bargaining Act, it’s unclear which alternatives are actually feasible.
Whatever model is employed, the Court was clear that s. 2(d) guarantees a right to collective bargaining, which is understood as a process and not an outcome. The majority in Fraser at para 51 had interpreted B.C. Health as only protecting “collective representations,” and having these representations considered in good faith. The distinction between this and a right to collective bargaining has been much of the consternation around Fraser since its release. The majority in Mounted Police commendably dispensed with some of the wordy terminology employed in historic s. 2(d) litigation,
 …To the extent the term “derivative right” suggests that the right to a meaningful process of collective bargaining only applies where the guarantee under s. 2 (d) is otherwise frustrated, use of that term should be avoided. Furthermore, any suggestion that an aspect of a Charter right may somehow be secondary or subservient to other aspects of that right is out of keeping with the purposive approach to s. 2 (d).
Under the new analysis, s. 2(d) is understood to protect the following (para 66):
(1) the right to join with others and form associations;
(2) the right to join with others in the pursuit of other constitutional rights; and
(3) the right to join with others to meet on more equal terms the power and strength of other groups or entities.
The upside is that the majority’s analysis of s. 2(d) in Mounted Police is far clearer and comprehensible than B.C. Health and Fraser. The decision actually seems to make sense as a comprehensive inquiry into the content of s. 2(d), even if Justice Rothstein’s critique of creative reasoning to explain the backdrop of the case law is not entirely without merit. Labour law students will look at these earlier decisions as a necessary pre-requisite to understanding the purposive development of s. 2(d), but for practical applications will hopefully have the luxury of largely ignoring it.
Labour law, as we now know it, can now be summarized as follows:
 …the s. 2 (d) guarantee of freedom of association protects a meaningful process of collective bargaining that provides employees with a degree of choice and independence sufficient to enable them to determine and pursue their collective interests.
Now that’s a sentiment I’d certainly cognitively associate with freely.
Entrecosto no Forno (Braised Spareribs and Potatoes) | SAVEUR http://www.saveur.com/article/recipes/entrecosto-no-forno-braised-spareribs-and-potatoes
Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.
This week’s summaries concern:
Mechanics’ Liens – Civil Rights – Criminal Law – Police
Yorkwest Plumbing Supply Inc. v. Nortown Plumbing (1998) Ltd. et al. 2014 ONCA 5655
Summary: Nortown Plumbing (1998) Ltd. was a contractor for plumbing services for new homes in two residential subdivisions. Yorkwest Plumbing Supply Inc. supplied Nortown with plumbing materials which were used in new homes built in both subdivisions. The contracts between Nortown and the subdivision owners were written. The subcontracts between Nortown and Yorkwest were oral. Under the written contracts, claims for liens under the Construction Lien Act arose and expired on a lot-by-lot basis. The oral subcontracts did …
Krupp Canada Inc. v. JV Driver Projects Inc. 2014 ABQB 259
Summary: Krupp Canada Inc. was a designer, supplier and installer of proprietary ore crushers, stockpiling systems, conveyors and oil sands processing equipment to oil and gas, mining, metals and power industries throughout Canada and elsewhere. JV Driver Projects Inc. was an industrial construction company, operating in western Canada, and executed large-scale industrial projects in mining, energy development and petrochemical sectors. The dispute arose out of the construction of the slurry preparation plant on the Kearl Oil Sands Project. …
R. v. Fearon (K.) 2014 SCC 77
Civil Rights – Criminal Law – Police
Summary: The accused was arrested for robbery while armed with a firearm. Upon his arrest, a police officer conducted a pat down search and located a cell phone on his person. The officer examined the contents of the phone and found a photograph of a gun as well as a relevant draft text message. At the police station the officers further examined the phone, but no further evidence was tendered by the Crown, …
Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
CONSTITUTIONNEL (DROIT) : Un juge d’une cour fédérale qui était membre du Barreau du Québec avant son accession à la magistrature peut être nommé à la Cour d’appel du Québec ou à la Cour supérieure du Québec.
Intitulé : Renvoi sur l’article 98 de la Loi constitutionnelle de 1867 (Dans l’affaire du), 2014 QCCA 2365
Juridiction : Cour d’appel (C.A.), Montréal, 500-09-024618-142
Décision de : Juges Nicole Duval Hesler (juge en chef), France Thibault, Yves-Marie Morissette, Allan R. Hilton et Jean Bouchard
Date : 23 décembre 2014
CONSTITUTIONNEL (DROIT) — institution constitutionnelle — juge — Cour d’appel du Québec — nomination — condition d’admissibilité — juge d’une cour fédérale — juge ayant été membre du Barreau du Québec — interprétation de l’article 98 de la Loi constitutionnelle de 1867.
INTERPRÉTATION DES LOIS — contexte historique — objet de la loi — article 98 de la Loi constitutionnelle de 1867.
Renvoi sur l’article 98 de la Loi constitutionnelle de 1867.
Le 13 juin 2014, le gouverneur général du Canada a nommé l’honorable Robert Mainville à la Cour d’appel du Québec. Au moment de sa nomination, le juge siégeait à la Cour d’appel fédérale depuis le 18 juin 2010. Auparavant, il avait été membre du Barreau du Québec à compter du 31 mars 1977 puis avait accédé à la magistrature en tant que juge à la Cour fédérale le 19 juin 2009. La procureure générale du Québec (PGQ) affirme que, correctement interprété, le pouvoir de nomination institué par l’article 98 de la Loi constitutionnelle de 1867 exige du gouverneur général, lorsqu’il nomme un juge au Québec et en vertu de l’article 96, qu’il le choisisse parmi les membres du Barreau du Québec («from the Bar») actuellement en exercice, dont on sait que certains exercent des fonctions quasi judiciaires, ou encore parmi les anciens membres du Barreau du Québec qui appartiennent aux tribunaux judiciaires du Québec visés par l’article 1 de la Loi sur les tribunaux judiciaires. Il en serait ainsi parce que l’article 98 créerait une exigence particulière, celle d’un lien continu, tangible et concret entre, d’une part, la personne appelée à siéger à la Cour d’appel et, d’autre part, le système civiliste québécois, système dont l’existence est très antérieure à la Confédération. Selon la PGQ, la confiance du public envers les institutions judiciaires dicte cette interprétation de l’article 98, car la finalité de cette disposition constitutionnelle est analogue à celle de l’article 6 de la Loi sur la Cour suprême telle que l’a exposée la Cour suprême dans le Renvoi relatif à la Loi sur la Cour suprême, art. 5 et 6 (C.S. Can., 2014-03-21), 2014 CSC 21, SOQUIJ AZ-51056420, 2014EXP-934, J.E. 2014-505,  1 R.C.S. 433. L’article 98 se distingue d’ailleurs de l’article 97 de la Loi constitutionnelle de 1867 puisque les auteurs de la Constitution, qui comprend également l’article 94, envisageaient que ces articles 94 et 97 deviendraient caducs une fois uniformisées les lois relatives à la propriété et aux droits civils en Ontario, en Nouvelle-Écosse et au Nouveau-Brunswick.
M. le juge Hilton: L’article 92 (13) consacre la reconnaissance du «compromis historique fondamental» relatif à la protection du droit civil. Toutefois, cette disposition ne visait pas uniquement l’intérêt du Québec dans la préservation de sa tradition juridique. Elle répondait aussi aux préoccupations des autres colonies qui entendaient se joindre à la fédération et qui craignaient l’assimilation de leur droit privé et de leurs coutumes locales. Cette donnée historique est importante, car elle explique la structure de la partie VII (art. 96 à 101) de la Loi constitutionnelle de 1867, consacrée à la «Judicature», et elle fait voir que ses articles 97 et 98 sont une modalité du compromis relatif à la préservation du droit privé local, un compromis rendu nécessaire en raison du projet d’uniformisation du droit privé de common law qu’annonce l’article 94. Tout parallèle entre le compromis historique mentionné dans le Renvoi relatif à la Loi sur la Cour suprême, art. 5 et 6 et celui qui fonde l’article 98 de la Loi constitutionnelle de 1867, dès qu’il est invoqué dans le but d’assortir une exigence de contemporanéité à l’article 98 doit être écarté. Certes, il ne faut pas minimiser l’importance de l’article 98 dans la sauvegarde de la tradition civiliste au Canada, mais il est impossible d’affirmer que cet article traduit un compromis historique semblable à celui sous-jacent à l’article 6 de la Loi sur la Cour suprême. Il faut se garder de substituer une conception essentialiste de la tradition civiliste à celle, simplement pragmatique, qui paraît avoir inspiré l’article 98. Lire une exigence de contemporanéité dans l’article 98 alors que personne n’en a vu une depuis 1867 fait violence au sens commun. Le corollaire de cette exigence d’appartenance au Barreau sans condition de contemporanéité est double. D’abord, les articles 97 et 98 confèrent aux provinces un rôle (limité) de constituer un bassin de candidats aux fins des nominations par le gouvernement fédéral. Ensuite, le gouverneur général (dans les faits, l’exécutif fédéral) bénéficie d’un large pouvoir discrétionnaire en matière de nomination des juges des cours visées à l’article 96 de la Loi constitutionnelle de 1867, discrétion qui doit cependant s’exercer conformément aux exigences constitutionnelles et légales pertinentes. Pendant la période préconfédérative, seuls les juristes qui depuis 10 ans étaient avocats en exercice ou qui étaient juges de la Cour supérieure, de district ou de comté pouvaient devenir juges à la Cour du Banc de la Reine. À partir de 1861, seuls les juges de la Cour supérieure du Bas-Canada pouvaient être nommés à la Cour du Banc de la Reine. Les rédacteurs de la Loi constitutionnelle de 1867 n’ont pas repris expressément ces critères préconfédératifs mais se sont contentés de la mention «from the Bar — parmi les membres du barreau». Selon le procureur général du Canada (PGC), on aurait ainsi la preuve que la Constitution n’exige d’un candidat à la magistrature de nomination fédérale rien d’autre qu’une simple appartenance au barreau local. Peut-être que le PGC a raison sur ce point, mais peut-être que non. Il se peut qu’il fasse ici abstraction d’un autre principe, celui selon lequel le texte de 1867 n’est pas l’expression exhaustive de la Constitution. La présence de l’article 129 de la Loi constitutionnelle de 1867, qui a assuré la continuité du droit préconfédératif après 1867, est aussi à noter. Rien dans l’article 3 de la Loi sur les juges ne paraît incompatible avec l’article 98 de la Loi constitutionnelle de 1867. En conclusion, l’article 98, interprété correctement à la lumière de sa lettre, de son objet et de l’histoire constitutionnelle avant et après la Confédération, signifie simplement qu’appartenir ou avoir appartenu au Barreau de la province de Québec qualifie un candidat à la magistrature selon cette disposition. Les cours du Québec visées par cet article sont celles dont les juges sont nommés par le gouverneur général, soit la Cour d’appel du Québec et la Cour supérieure du Québec. Il s’ensuit qu’un juge des cours fédérales qui était membre du Barreau du Québec avant son accession à la magistrature peut être nommé à l’une de ces deux cours.
Le texte intégral de la décision est disponible ici
At some point in our education, we learn that we live in a nomocracy, a society governed by the rule of law. Although the phrase trips lightly off the tongue of judges and deans at call ceremonies, it is in fact a complex and enormously important concept that underpins our system of government and separates Canada from not only North Korea but from more junior democracies, like Thailand and Egypt, prone to coups d’état.
Apart from meaty ideas about fundamental justice, arbitrary decision-making and the independence and interrelationship of the branches of government, the rule of law also describes certain basic principles about the legislature and the legislation it produces:
Laws should treat those they govern equally.
Laws should be forward speaking and avoid retroactive effect.
Laws should be published and freely available to those they govern.
Laws should be clear, comprehensible and certain.
This last principle is worthy of special consideration in the age of the litigant without counsel. It seems to me that central idea here is that legislation should be intelligible on its face, or, more specifically, that the average citizen, possessed of average intellect, average education and average fluency in an official language, should be able to read and understand the text of a particular piece of legislation as well as its application to her circumstances. If I’ve got this right, then a corollary principle logically follows:
Persons governed by a law should not be required to obtain legal advice to follow the law.
After all, the average citizen should be able to access and understand the laws of the land regardless of her means or inclination toward lawyers, particularly in respect of laws carrying penal, economic or social consequences.
In my view, however, much of our present legislation and regulation fails this test spectacularly. Although I’m not particularly preoccupied with legislation governing banks and corporations, I am concerned about the rules governing civil proceedings and the law on domestic relations, personal taxation, government benefits and criminal conduct, and it seems to me that a major goal of law and justice reform over the next decade should be improving the accessibility of the legislation and regulations most affecting individuals.
The principles barriers to the intelligibility of a particular law are, in my view, are excessively involuted sentence structure, the use of language other than in its plain or ordinary sense, and recursive drafting techniques that require the reader to interpret one section by reference to another. Take, for a simple example, s. 12(1.2) of the Canada Pension Plan concerning the right of persons 65 and older to opt out of the deduction of premiums from their income:
If a person does not revoke — in respect of an employer — an election in the prescribed form and manner, the contributory salary and wages referred to in paragraphs 8(1)(a) and 9(1)(a) do not, for the purposes of those paragraphs, include income from that employment. However, they may — in respect of that income — make an election under subsection 13(3) and pay the contribution required under section 10 within one year after their balance-due day.
This subsection uses both commas and em-dashes to mark phrases and subphrases, and cannot be understood without reference to four other sections of the act. Or, take s. 56.1(2) of the federal Income Tax Act which provides direction on the correct calculation of the amount of spousal support payments to be deducted from or added to one’s taxable income:
For the purposes of section 56, this section and subsection 118(5), the amount determined by the formula
A – B
is the total of all amounts each of which is an amount (other than an amount that is otherwise a support amount) that became payable by a person in a taxation year, under an order of a competent tribunal or under a written agreement, in respect of an expense (other than an expenditure in respect of a self-contained domestic establishment in which the person resides or an expenditure for the acquisition of tangible property, or for civil law corporeal property, that is not an expenditure on account of a medical or education expense or in respect of the acquisition, improvement or maintenance of a self-contained domestic establishment in which the taxpayer described in paragraph (a) or (b) resides) incurred in the year or the preceding taxation year for the maintenance of a taxpayer, children in the taxpayer’s custody or both the taxpayer and those children, if the taxpayer is
(a) the person’s spouse or common-law partner or former spouse or common-law partner, or
(b) where the amount became payable under an order made by a competent tribunal in accordance with the laws of a province, an individual who is the parent of a child of whom the person is a legal parent,
is the amount, if any, by which
(a) the total of all amounts each of which is an amount included in the total determined for A in respect of the acquisition or improvement of a self-contained domestic establishment in which the taxpayer resides, including any payment of principal or interest in respect of a loan made or indebtedness incurred to finance, in any manner whatever, such acquisition or improvement
(b) the total of all amounts each of which is an amount equal to 1/5 of the original principal amount of a loan or indebtedness described in paragraph (a),
is, where the order or written agreement, as the case may be, provides that this subsection and subsection 60.1(2) shall apply to any amount paid or payable thereunder, deemed to be an amount payable to and receivable by the taxpayer as an allowance on a periodic basis, and the taxpayer is deemed to have discretion as to the use of that amount.
Now, to find this subsection, the taxpayer cannot search for the word “spousal,” even though that’s the word used in reference to spousal support in the Divorce Act; instead, the Income Tax Act uses “support amount” and the archaic term “maintenance.” Moreover, the taxpayer wouldn’t find s. 56.1 from reading s. 56 concerning non-employment sources of income to be included in the taxpayer’s taxable income, as s. 56.1 isn’t even mentioned in s. 56.
Assuming the taxpayer has discovered that s. 56.1 is relevant to her tax liability, the taxpayer must then figure out how s. 56.1 applies. This would require the taxpayer to:
With the greatest respect to the extraordinarily erudite and punctilious drafters at the federal Department of Justice, legislation of this ilk is neither clear nor comprehensible. (I admit to cherry-picking some delightful examples of legislative bafflegab, however the amount of Canada Pension Play benefits are critical for many seniors and errors in the calculation of income tax potentially carry serious penal and financial consequences.)
I’ve discussed some of my concerns about complexity in the context of family law matters elsewhere, however the issue of complexity is truly multidimensional and has a significant potential impact on the extent to which Canada is a nation truly governed by the rule of law, in both its formal sense and in the ability of its citizens to access justice. In my view, any reform aimed at improving access to justice will be incomplete and inadequate unless we ensure that our legislation is exoteric and likewise accessible.
Governments increasingly are putting official documents online without any paper ‘original’ or equivalent. Does that present challenges in practice for proving those documents?
What is your experience producing in court or generally under the evidence statutes official government documents that appear only online?
There is good statutory support for producing documents ‘printed’ by government, sometimes by class of document but sometimes as broad as ‘other public document’.
Will courts accept a printout of a web page (or, I suppose, a live in-court online presentation of a web page) showing a government URL as being ‘published by the Queen’s Printer’, at least in the absence of evidence to the contrary? Will courts accept online publications as ‘printed’ for this purpose?
Section 25 of the Ontario Evidence Act says this:
Copies of statutes, etc.
25. Copies of statutes, official gazettes, ordinances, regulations, proclamations, journals, orders, appointments to office, notices thereof and other public documents purporting to be printed by or under the authority of [a government in the Commonwealth] shall be admitted in evidence to prove the contents thereof.
Section 21 of the Canada Evidence Act is less fussy about printing, but fussier about the source and maybe about the nature of the document:
Proclamations, etc., of Governor General
21. Evidence of any proclamation, order, regulation or appointment, made or issued by the Governor General or by the Governor in Council, or by or under the authority of any minister or head of any department of the Government of Canada … may be given in all or any of the following ways:
(a) by the production of a copy of the Canada Gazette, or a volume of the Acts of Parliament purporting to contain a copy of the treaty, proclamation, order, regulation or appointment, or a notice thereof;
(b) by the production of a copy of the proclamation, order, regulation or appointment, purporting to be published by the Queen’s Printer;
[and further provisions about treaties and about documents certified by a public official. I am interested in admission of documents without having them personally certified by a custodian.]
I read (b) as meaning that the copy has to be published by the Queen’s Printer, not just the official document. Is that right? In any event, is the printout of the official online document a copy for this purpose?
Would it help answer the question to refer to the electronic document provisions of the statutes – s. 34.1 for Ontario, s. 30.1 for Canada? (They reproduce essentially the Uniform Electronic Evidence Act rules.) They address authentication issues and the best evidence rule but do not expressly apply to the official documents rules.
Should the statutes be amended to keep pace with governmental practices?
I am aware of Ontario and federal statutes about proof of official law found online – statutes and regulations. (They appear of course in print as well.) My question is about other official documents.
Can you / should you / do you rely on the product of search engines as evidence in civil or criminal matters? Do you base legal advice on what you find on search engines, or on the use made of them?
A recent article in Canadian Lawyer canvasses some of the possibilities.
The Ontario Superior Court held that one could not establish facts by showing how often certain terms were used in Google searches. That was for the purpose of the certification of a class action.
However, showing previous use or actual use of trade marks can be done by searching for them. A number of judicial decisions have confirmed that.
Is the law of evidence clear enough on this kind of issue? Is the Superior Court decision right, in your view (given that the judge who decided it is now Chief Justice of Ontario)? How firmly does one need to establish ‘facts’, or is the nature of a ‘fact’ different depending on your legal purpose for using it?
What – if anything – should be done?