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:
Search & seizure of computers and cell phones / Suing government agency created by treaty:
R. v. Mills (S.) 2013 NLPC 0113PA00551
Civil Rights - Property – Personal property (incl. computers or cellphones) – Search and seizure by police
The accused was charged with four breaches of s. 172.1 of the Criminal Code. He applied for a ruling that the police actions were unlawful as they did not comply with s. 184.2 of the Criminal Code and a ruling that the police actions constituted an unreasonable search and seizure contrary to s. 8 of the Charter. The Newfoundland and Labrador Provincial Court allowed . . .
Amaratunga v. Northwest Atlantic Fisheries Organization_2013-12-11 2013 SCC 66
Practice - Persons who can sue and be sued – Agencies of government – Agency created by international treaty
Amaratunga sued his former employer, the Northwest Atlantic Fisheries Organization (NAFO), an international organization headquartered in Nova Scotia, for breach of his contract of employment and for breach of the contract under which NAFO was required in accordance with the NAFO Staff Rules to pay a separation indemnity payment. NAFO claimed that it enjoyed immunity from the lawsuit under the Northwest Atlantic . . .
Chaque semaine, nous vous présentons un résumé d'une décision d'un tribunal québécois qui nous est fournis par la Société québécoise d'information juridique (SOQUIJ) et ayant un intérêt pancanadien. SOQUIJ relève du ministre de la Justice du Québec, et elle analyse, organise, enrichit et diffuse le droit au Québec.
Every week we present a summary of a decision by a Québec court provided to us by SOQUIJ and selected 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.
Pénal: Une ordonnance de non-publication rendue en vertu de l'article 517 C.Cr. n'empêche pas la publication de l'information obtenue d'une autre source; en l'espèce, la publication et la diffusion de la dénonciation caviardée ainsi que du rapport d'exécution de la perquisition ayant eu lieu chez les intimés, sauf quant aux éléments expressément prohibés, sont permises.
Intitulé : Corporation Sun Media et Dubois, 2013 QCCQ 14371
Jurisdiction : Cour du Québec, Chambre criminelle et pénale (C.Q.), Montréal, 500-26-067782-114
Décision de : Juge Éric Downs
Date : 20 novembre 2013
PÉNAL (DROIT) — procédure pénale — procédure fédérale — publication — acte de dénonciation — mandat de perquisition — rapport d'exécution — ordonnance de non-publication délivrée en vertu de l'article 517 C.Cr.
PÉNAL (DROIT) — garanties fondamentales du processus pénal — droit à un procès équitable — présomption d'innocence — principe de la publicité des débats judiciaires — exception — ordonnance de non-publication délivrée en vertu de l'article 517 C.Cr. — publication — dénonciation — mandat de perquisition — rapport d'exécution.
PÉNAL (DROIT) — preuve pénale — preuve d'expert — recevabilité de la preuve — témoignage — expert — traitement médiatique de l'information — étude de l'usage de l'expression «présumé» — présomption d'innocence — absence de fondement juridique.
DROITS ET LIBERTÉS — droits et libertés fondamentaux — pensée, opinion et expression — liberté d'expression — liberté de presse — principe de la publicité des débats judiciaires — acte de dénonciation — mandat de perquisition — rapport d'exécution.
Requête pour mettre fin à une ordonnance interdisant l'accès à des documents ou pour la modifier et afin de permettre la publication et la diffusion de différents documents. Accueillie en partie.
Les intimés accusés résident à l'endroit où une perquisition a été menée par la Sûreté du Québec dans le cours de l'enquête policière nommée «Garrot». En novembre 2011, un juge de la Cour du Québec a autorisé un mandat de perquisition. Il a également rendu une ordonnance interdisant l'accès aux informations relatives à ce mandat, conformément à l'article 487.3 du Code criminel (C.Cr.). Par la suite, le rapport d'exécution de cette perquisition a été déposé et également placé sous scellés. En octobre 2012, les intimés accusés et les mis en cause accusés ont été accusés conjointement de différentes infractions, dont celles de complots pour fraude, vols, fabrication et usage de faux, recyclage des produits de la criminalité et gangstérisme. À la suite de leur comparution, ils ont été détenus et, le 18 décembre suivant, ils ont été remis en liberté. Une ordonnance limitant la publication et la diffusion des documents en cause a été rendue en vertu de l'article 517 C.Cr. En février 2013, les dénonciations et la documentation relative aux perquisitions, aux entrées subreptices et aux demandes d'écoute électronique du projet d'enquête Garrot ont été descellées afin d'être divulguées aux accusés. Au mois d'août suivant, le tribunal a rendu une décision interlocutoire permettant notamment l'accès à la dénonciation caviardée au soutien de la demande de délivrance d'un mandat de perquisition et au rapport d'exécution mais interdisant la publication et la diffusion temporaire tout en réservant le droit des parties de présenter la preuve et les arguments appropriés quant à l'opportunité d'autoriser la publication ou la diffusion. Les requérantes ont ciblé les extraits de la dénonciation qu'elles souhaitent publier ou diffuser en déposant notamment la dénonciation caviardée et en surlignant les extraits dont la publication et la diffusion sont sollicitées. Au soutien de leur requête, elles font valoir le principe de la publicité des débats judiciaires et le droit à la liberté de presse édictés à l'article 2 b) de la Charte canadienne des droits et libertés. Elles soutiennent essentiellement qu'il existe une présomption de publicité d'un mandat de perquisition après son exécution et qu'il revient aux intimés accusés et aux mis en cause accusés de justifier la non-publication ou la non-diffusion. Aussi, malgré l'existence d'une ordonnance de non-publication déjà rendue en vertu de l'article 517 C.Cr., elles affirment que rien n'empêche la publication ou la diffusion suivant leurs prétentions. Les intimés accusés, pour leur part, demandent le maintien de l'ordonnance rendue en vertu de l'article 487.3 C.Cr. Ils soutiennent, dans un premier temps, qu'il existe également une ordonnance limitant la publication ou la diffusion conformément à l'article 517 C.Cr. et, dans un second temps, que les conditions prévues à l'article 487.3 C.Cr. sont toujours remplies. De plus, se fondant sur les affirmations de leur témoin Dumas, qu'ils présentent à titre d'expert en matière d'analyse de médias, ils allèguent que, en appliquant le test établi dans Dagenais c. Société Radio-Canada (C.S. Can., 1994-12-08), SOQUIJ AZ-95111005, J.E. 95-30,  3 R.C.S. 835, et R. c. Mentuck (C.S. Can., 2001-11-15), 2001 CSC 76, SOQUIJ AZ-50104926, J.E. 2001-2142,  3 R.C.S. 442, il y a lieu de conclure que la communication des renseignements de perquisition serait préjudiciable aux fins de la justice ou utilisée à des fins illégitimes. Ainsi, leur droit à un procès équitable serait compromis par la publication ou la diffusion et il en serait de même de leur droit à la présomption d'innocence. À cet égard, ils présentent les résultats d'une recherche médiatique menée par Dumas qui fait ressortir l'utilisation par les médias de 3 605 expressions soulignant la «présomption de culpabilité», soit 85 % du traitement médiatique. Quant à l'utilisation d'expressions visant la présomption d'innocence, 636 ont été répertoriées, soit 15 % de la couverture médiatique. En conclusion de cette étude, il est retenu que les «médias québécois font un large usage d'expressions inappropriées eu égard aux notions de droits».
Le droit applicable: En ce qui a trait à la présomption de publicité des documents relatifs à une perquisition, la règle veut que, une fois qu'un mandat de perquisition a été exécuté et que les objets trouvés sont portés devant le juge de paix, le mandat de perquisition et la dénonciation tombent dans le domaine public. L'article 487.3 C.Cr. prévoit une procédure d'exception. Dans le contexte judiciaire, le droit du public d'être informé de ce qui se passe devant les tribunaux et d'en discuter librement a été reconnu comme l'une des composantes expressives de l'article 2 b) de la charte. Au moment d'exercer sa discrétion judiciaire, le tribunal doit considérer la grille d'analyse établie par la Cour suprême dans Dagenais et Mentuck et déterminer si cette ordonnance est nécessaire afin d'écarter un risque sérieux pour la bonne administration de la justice et si les effets bénéfiques de cette ordonnance sont plus importants que ses effets préjudiciables sur les droits et les intérêts des parties ainsi que du public. Dans Toronto Star Newspapers Ltd. c. Ontario (C.S. Can., 2005-06-29), 2005 CSC 41, SOQUIJ AZ-50320845, J.E. 2005-1234,  2 R.C.S. 188, la Cour suprême a confirmé que ce test s'appliquait aussi aux ordonnances visant la non-publication de mandats de perquisition. Quant au fardeau de justifier la non-publication, il appartient aux intimés accusée et aux mis en cause accusés. En l'espèce, ceux-ci n'ont pas démontré l'existence d'un risque réel et important de nuire à l'administration de la justice. Il ne faut pas confondre la notion de «publicité négative» avec celle de «risque réel et important de nuire à l'administration de la justice». En l'espèce, la preuve ne démontre pas que les accusations portées contre les intimés accusés et les mis en cause accusés ont fait l'objet d'une médiatisation importante. De plus, il y a également lieu d'observer un manque de concomitance marqué entre la publication éventuelle de la dénonciation caviardée et du rapport de perquisition avec un éventuel procès. Enfin, à la lumière de Société Radio-Canada c. Auclair (C.S., 2010-09-30), 2010 QCCS 4627, SOQUIJ AZ-50676315, 2010EXP-3336, J.E. 2010-1841, c'est à tort que les intimés prétendent qu'une ordonnance de non-publication rendue en vertu de l'article 517 C.Cr. empêche la publication de la dénonciation. L'objectif de cette ordonnance est clair. Il s'agit d'éviter la diffusion de certains types d'éléments de preuve introduits lors de l'enquête sur remise en liberté puisque, à cette étape, les règles de preuve sont très permissives. La jurisprudence soumise par les intimés pour soutenir leur demande de non-publication ou diffusion diffère du présent cas.
La situation des intimés accusés et des mis en cause accusés: La prétention des intimés accusés selon laquelle le traitement médiatique que les médias réservent généralement aux affaires criminelles viole la présomption d'innocence ne tient pas. Premièrement, le rapport de recherche et le témoignage de Dumas ne sont pas retenus. Les critères de R. c. Mohan (C.S. Can., 1994-05-05), SOQUIJ AZ-94111042, J.E. 94-778,  2 R.C.S. 9, ne sont pas remplis, de sorte que cette preuve est irrecevable. En effet, Dumas, malgré son expertise en matière d'analyse des médias, n'a aucune qualification particulière dans le domaine de la sémantique, soit l'étude du sens du langage, de l'analyse sociologique et du droit. Il n'a effectué aucune démarche auprès du public pour vérifier ou analyser la compréhension du message véhiculé par les médias lorsqu'ils utilisent le vocable «présumé» dans leur couverture de l'actualité judiciaire, et son opinion selon laquelle l'usage du terme «présumé» entache la présomption d'innocence de manière générale dans la société québécoise est erronée quant à ses fondements juridiques. On ne peut reprocher aux journalistes l'usage de l'expression «présumé» alors qu'il s'agit d'une expression consacrée et largement répandue. L'opinion de Dumas n'est pas nécessaire ni même utile pour aider le tribunal à trancher le litige quant à l'application du test Dagenais-Mentuck et n'est pas conforme aux facteurs élaborés dans R. c. J.-L.J. (C.S. Can., 2000-11-09), 2000 CSC 51, SOQUIJ AZ-50080629, J.E. 2000-2140,  2 R.C.S. 600. Deuxièmement, la présomption de publicité n'a pas été autrement repoussée, de sorte que le principe général de la publicité des débats doit prévaloir.
Les informations du domaine public: Certaines informations de la dénonciation caviardée font déjà partie du domaine public et, à l'instar de Société Radio-Canada c. Auclair, il y a lieu de conclure qu'elles peuvent être publiées de nouveau.
La situation des tierces parties: Il ne suffit pas d'invoquer la règle du «tiers innocent» dans l'abstrait pour éviter toute publication. Il ne s'agit que d'un facteur parmi un vaste ensemble à prendre en considération pour décider du droit à la publication. En l'espèce, tous les facteurs énoncés dans Phillips c. Nouvelle-Écosse (Commission d'enquête sur la tragédie de la mine Westray), (C.S. Can., 1995-05-04), SOQUIJ AZ-95111053, J.E. 95-945,  2 R.C.S. 97, militent en faveur d'un accès du public à l'information sur l'ensemble des personnes visées par l'enquête. Le critère de la nature et de la portée de l'enquête, qui vise un vaste réseau de fausse facturation et de fraude dans le milieu du coffrage et de l'industrie de la construction, penche en faveur de la publication et de la diffusion. Il en va de même du critère de la nature et de la portée des accusations. Par ailleurs, il en est autrement de certaines personnes physiques ou morales mentionnées à la dénonciation caviardée comme étant «accommodées» dans le stratagème alors qu'elles n'ont pas fait l'objet d'accusations. Il serait préjudiciable à ces «tiers innocents» que la dénonciation caviardée soit publiée ou diffusée telle quelle et, par conséquent, une mention expressément prévue par le tribunal devra accompagner toute publication et diffusion. Par conséquent, la publication ou la diffusion de la dénonciation caviardée et du rapport d'exécution de la perquisition, sauf quant aux éléments expressément prohibés et sous réserve de la restriction préalablement énoncée, est permise.
Le texte intégral de la décision est disponible ici
On one Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, SupremeAdvocacyLett@r, to which you may subscribe.
Summary of all appeals and leaves to appeal granted (so you know what the S.C.C. will soon be dealing with). For leaves, both the date the S.C.C. granted leave and the date of the C.A. judgment below are added in, in case you want to track and check out the C.A. judgment. (Nov. 16 to Dec. 13, 2013 inclusive).
Class Actions: Certification; Market Timing
AIC Limited v. Fischer (Ont. C.A. Jan. 27, 2012) (34738) Dec. 12, 2013
The preferable procedure inquiry must “focus on the underlying purpose and nature of the alternative proceeding as compared with the class proceeding” (quoting from the C.A. below), and the (preferability) analysis is not solely focused on procedural considerations but must, within the proper scope of the certification process, consider both substantive and procedural aspects.
Contracts In Quebec: Rectification
Quebec (Agence du Revenu) v. Services Environnementaux AES inc. (Que. C.A. Mar. 4 and May 20, 2011) (34393) (34235) Nov. 28, 2013
It is open to the courts to rectify contracts to find that the amendments made by the parties are legitimate and necessary, and reflect their common intention.
'Criminal' Law/Provincial Offences: Strict Liability; Due Diligence
La Souveraine, Compagnie d’assurance générale v. Autorité des marchés financiers (Que. C.A., January 10, 2012) (34699) Nov. 21, 13
The Appellant argued the offence (it had authorized, permitted or consented to the distribution by its broker of insurance products for property located in Quebec although it knew the broker did not hold the licences required) required proof of mens rea and the subjective element of the offence was not proved beyond a reasonable doubt. The offence in question however is one of strict liability. The actus reus was established, and the due diligence defence not available in this case, because the appellant was relying on a pure mistake of law.
Criminal Law: Uttering Threats; Elements Of The Offence
R. v. McRae (Que. C.A., February 3, 2012) (34743) Dec. 6, 2013
The offence does not require proof that the accused’s threats were conveyed to the target or someone was actually intimidated by them; further, the Crown need not establish the accused intended the threats be conveyed or intimidate anyone. The fault element is made out if it is shown threatening words uttered or conveyed “were meant to intimidate or to be taken seriously”.
Employment Law: Termination; Deductibility Of Pension Benefits
IBM Canada Limited v. Waterman (B.C.C.A., August 2, 2011) (34472) Dec. 13, 2013
Pension benefits are not deducted from wrongful dismissal damages.
International Law: Jurisdictional Immunity
Amaratunga v. Northwest Atlantic Fisheries Organization (N.S.C.A., August 23, 2011) (34501) Nov. 29, 2013
NAFO has immunity from suit, with the exception of a claim concerning separation indemnity.
Katz Group Canada Inc. v. Ontario (Health and Long-Term Care) (Ont. C.A., December 23, 2011) (34647)(34649) Nov. 22, 2013
‘Private label’ generic drug pricing regulations are intra vires.
Securities: Regulation; "Secondary Proceedings"; Standard Of Review; Limitation Periods
McLean v. B.C. (Securities Commission) (B.C.C.A. Nov. 10, 2011) (34593) Dec. 5, 2013
The governing standard of review is reasonableness. While it is true that the application of s. 159 of the B.C. Securities Act to the secondary proceeding provisions such as s. 161(6)(d) will have the effect, as a practical matter, of extending the period under which the cloud of potential regulatory action hangs over a person, that, of itself, is not offensive to the legislative purpose of limitation provisions.
LEAVES TO APPEAL GRANTED
Criminal Law: Jury ‘Representativeness’
How representative do juries have to be.
R. v. Clifford Kokopenace (Ont. C.A., June 14, 2013) (35475) Nov. 21, 2013
Criminal Law: Long-Gun Registry
Can Quebec keep the federal long-gun registry data.
Attorney General of Quebec v. Attorney General of Canada et al. (Que. C.A., July 23, 2013) (35448) Nov. 21, 2013
Evidence: Admissibility Of Expert Reports
When can expert reports be admitted/expunged.
White Burgess Langille Inman, carrying on business as WBLI Chartered Accountants, et al. v. Abbott and Haliburton Company Limited, et al. (N.S. C.A., May 24, 2013) (35492) Nov. 21, 2013
A scanner is no longer optional equipment for lawyers. Even if you have not gone paperless, courts, clients, and other lawyers will expect you to be able to scan things and distribute PDF files. You need a scanner in your office, at least, and probably on your own desk.
And not just any scanner. All-in-one systems are clumsy and inefficient, and flatbed scanners are too cumbersome for scanning multi-page documents. In a law office, you need a dedicated document scanner. Depending on how you practice, you may also want a portable scanner, or one that can scan 3-D objects like books or small physical exhibits.
Here are the ones you should consider.Best Overall: Fujitsu ScanSnap iX500
If you are only going to own one scanner, it should be this one. The ScanSnap iX500 is compact, fast, ridiculously easy to use, and good-looking. Plus, it works over wi-fi and scans to your smartphone or tablet. It comes with a copy of Adobe Acrobat (for Windows), and … well, I just can’t say enough good things about it.
I’ve owned three ScanSnaps, the S500, S1500, and iX500, and I have been thrilled with all of them. You can’t go wrong with a ScanSnap iX500, with just one narrow exception …
In a recent civil case, the British Columbia Supreme Court had to decide on the admissibility in evidence of a database of transactions under a contract, and the results of SQL analysis of the database that produced a number of Excel format spreadsheets. The people who generated the spreadsheets were available to testify in person about how they had run the queries: Animal Welfare International Inc. v. W3 International Media Ltd., 2013 BCSC 2193 (CanLII).
The opposing party submitted that the analysis done in extracting the data constituted expert evidence, and the witnesses needed to be qualified as experts before their evidence – and the spreadsheets – could be admitted. (para 46 – 51)
The court held otherwise (para 58), essentially that the database itself was real evidence and the spreadsheets were just ways of making it readable by humans without manipulation or analysis. (There is also much discussion of the business records exception to the hearsay rule, both statutory and at common law. The court held firmly that the records were business records for this purpose.)
Does that sound right to you? At what point does the process of making data meaningful require expertise of a type, or to a degree, that the person producing it should have to be qualified as an expert witness? (cf Pasko v Willis, 2004 ABQB 154 (CanLII) para 10.)
Is this a routine case? Few if any of the cases cited in the decision dealt with the expertise question.
How about the ‘database as real evidence’ argument (so not documentary evidence, so not hearsay – so don’t even need the business records exception… it’s all just mechanically recorded, like the counter in a turnstile as evidence of the number of people who entered an auditorium)?
“Is it just me,” asks a regular CBA FuturesChat participant, “or is there greater discussion and interest on ABS and technology than ethics and regulation?”
It’s not just him.
Since the CBA’s Legal Futures Initiative began conducting its Tuesday night Twitter chats in October, the greatest engagement and participation came during discussions about innovating within the legal profession with new kinds of business structures, many of them made possible by technological advances.
“Ethics” seems an immutable concept, something for philosophical debate late into the evening rather than an action item – as Joshua Lenon, in-house-lawyer for Clio, said in the last Twitter chat of the year, lawyers are officers of the court with a sworn duty to the law as well as to clients. Full stop. The job of lawyer and membership in a law society bring with them a requirement to uphold certain ethical principles and professional regulations.
Technology, now, that’s constantly changing and opening up new opportunities for new ways of doing business, original thinking which leads to whole new business structures. There’s plenty of room for blue-sky talk – and plenty of evidence from people who’ve transformed those blue-sky words into deed.
Lawyers may have a well-deserved reputation for being averse to change, but at the same time there is obviously appetite for innovation, and evidence of creative minds at work in the Canadian legal profession.
It’s that appetite and creativity that the Futures team wanted to tap into with the consultation phase of the initiative. The public consultations wrap up at the end of the month, but invitation-only consultations with selected interest groups – small and solo practitioners, diversity leaders, innovators and students, to name a few – will continue into February.
Twitter chats will continue in the new year as well – not weekly, but we hope to do them monthly, to keep the conversation going, to keep adding to our knowledge base. We have enjoyed hearing from you, learning what interests legal professionals in Canada and around the globe. Meat or subtle flavour, it will all be added to the pot.
Leading up to the release next August of our second-phase report, we plan to periodically update you on what we’ve discovered so far. So stay tuned to cbafutures.org, and if you haven’t filled out our survey yet, do so. There’s still time to join the conversation.
There are things we can control (we think), and things we cannot. Most natural phenomena, big and small, fall into the latter category — which is to say damn near everything that happens. Sensibly, we avoid the dangerous much of the time and try to adapt when we can't run away far enough. Ice age coming? Oh bother! That means up stakes, heavy coats, and a few millennia of wandering. That sort of thing. But, as a moment's thought will confirm, our record of staying out the way of "bad" natural phenomena is, well, less than stellar. We build cities smack on the big fault lines and live at the bottom of smoking volcanoes or on the shores of rivers that flood like clockwork. Can't happen here. That was then, this is now. We'll manage somehow. Lightning doesn't strike twice. Why, it's almost as if we can't control the natural phenomenon that is the human mind.
We do seem to be fascinated with things we can't control, the weather being a prime example — and natural disasters being another. That fascination is made easier to indulge because of the internet, of course, and the news it brings of the contingent nature of life, near and far. With the understanding that these natural disasters damage people and other living things and that this a real and serious matter, I want to take a look at our interest in these events and, particularly, at the way in which the internet feeds our interest.
Perhaps the best illustration of this is the unlikely RSOE EDIS: the Hungarian National Association of Radio Distress-Signalling and Infocommunications (RSOE) Emergency and Disaster Information Service (EDIS). On the site you'll find a world map simply pulsating with tokens signalling today's hazards and disasters. These range across a wide spectrum. Thus, just yesterday, for instance, among dozens of other "short time" (very recent? transient?) events, there was: a weather hazard recorded for Jordan Montana, where the temperature fell to minus 41 degrees Celsius; a continuation of the nuclear biohazard at Fukushima, Japan; an earthquake registered in El Guarco Valley, Costa Rica, severity as yet unknown; a severe weather event — a hailstorm in Woolgoolga, Australia; and something called "an event into space" in Greece, which, the last time such a thing was noted back in November, was ultimately explained by RSOE this way:
Meteor falling into the sea at night time in Greece, on the island of Zakynthos to cause panic in citizens but concluded that there was no damage. Greek official news agency ANA-MPA reported, eyewitnesses of the air with a violent explosion that lit up one of the object, like a ball of fire fall very quickly towards the sea, the statement was given.
A more leisurely look at the full range of events contains some surprises, at least so far as I was concerned. There were more than eighty recorded earthquakes yesterday, twenty-two of which measured 4 or more on the Richter scale. And just about twenty "Earth approaching objects" headed our way in the next thirty days. (The worrying one might be 2011 YD29, due on December 27 and scheduled to miss us by a mere 6.1 lunar distances, but fortunately only 20 metres across.)
Want to monitor supervolcanoes? This is the site to get you started. Sadder: the mass death of animals? Here, too. Enough, that is, to occupy anyone who wants convincing that living is something of a risky business.
And a destructive business — as a global map of fires shows. Peering down from its privileged height, NASA has created an animated map of wildfires as they come and go across the seasons and the years. As the notes on the page say, much of the annual flaring in South America and Africa is the result of agricultural fires.
But it's not only the big stuff that you can see from space that can get you. The microscopic can be dangerous too. Canada, like many countries, posts travel health notices. Currently there's not much worse than a bunch of the usual "level 1" threats, such as measles in the countries shown on a WHO map; cholera in Mexico, Cuba, Dominican Republic and Haiti; and chikungunya on the Caribbean island of Saint Martin/Sint Maarten.
If by chance you'd like to stay abreast of these disruptive events around the world, you might subscribe to Global Disaster Watch, a site that can send you daily RSS updates, or to NASA's RSS feed of "The latest daily Natural Hazards from around the globe".
Canada has a system of civil courts that would be the envy of many countries. We have a large, well- trained and dedicated legal profession. The legal aid system in Canada provides more service in civil matters than is available in many places throughout the world. Yet, with all this and all that it costs, we are not meeting the legal needs of the Canadian public. The final report of the Action Committee on Access to Justice in Civil and Family Matters, A Roadmap for Change, tackles the difficult problem of why this is the case and lays out recommendations for what can be done to bring full access to justice to Canadians. The final report and four subcommittee reports on early stage resolution of civil justice problems, legal services, court simplification and family law are available on the Canadian Forum on Civil Justice website.
The report has three main purposes.
The report succeeds remarkably well on all fronts.
In part I of the report, the Action Committee presents a view of access to justice that is much broader than the traditional perspective that has focused on courts, tribunals, judges and lawyers. This concept of access to justice reflects not only the legal problems for which people obtain legal advice or that find their way to the courts, but the much larger number of serious and difficult legal problems experienced by the public for which they do not go to law. The report sketches out the access to justice problem, reflecting the manner in which members of the public experience legal problems. First is the ubiquitous quality of legal problems. “Civil Justice problems are pervasive in the lives of Canadians and frequently have negative impacts on them”. Legal problems frequently do not occur in isolation. Legal problems trigger other legal problems. Legal problems trigger, and are triggered by, a range of non-legal problems. Multiple legal problems often occur in interdependent clusters, making the resolution of individual problems difficult without addressing the others at the same time. The poor are especially vulnerable to experiencing multiple problems. Because of current levels of funding and coverage, legal aid system is unavailable to most people and legal problems. The courts are not accessible to most people, largely due to cost.
Part II of the report acknowledges that systemic problems with the conventional approaches, which have dominated efforts to address the access to justice problem, may have produced the current unsustainable situation. What is needed is a culture shift, a new way of thinking that is based on a culture of reform. The report encourages a new culture of reform guided by six principles.
Finally, part III provides a nine-point access to justice roadmap. It is not a recipe but, rather a set of principles intended as a guide for local initiatives. The roadmap for change includes the establishment of national and local implementation mechanisms to put in place enhanced access to justice services that meet the needs of local and regional populations. The report emphasizes that to succeed we must enhance our capacity for innovation. If we do not invest in innovation we risk repeating the mistakes and failures of the past. The roadmap points to the need for a coherent and sustained funding strategy, including enhanced funding for legal aid. It calls for support for access to justice research in order to promote evidence-based policy choices.
The final report of the Action Committee represents the accumulated knowledge and experience of many people who are well-placed in the Canadian justice system. It presents a good account of the problem of access to justice and the most promising directions in which to look for solutions. It represents an opportunity to improve access to justice in Canada that will not likely recur frequently.
Ab Currie, Senior Research Fellow
G.P. (Bud) Peterson, president of the Georgia Institute of Technology, is determined not to become the next casualty of a failed MOOC experiment.
Mr. Peterson saw what happened at San Jose State University earlier this year: An experiment with Udacity, a company that specializes in massive open online courses, turned into an embarrassment for Mohammad H. Qayoumi, San Jose State’s president, after its first run, in the spring semester, produced underwhelming results.
Georgia Tech is taking precautions to make sure its own high-profile experiment with Udacity does not meet a similar fate. The experiment is a fully online master’s program in computer science that Georgia Tech professors will teach on the Udacity platform with help from “course assistants” hired by the company.
Mr. Peterson refuses to even call the Udacity collaboration an experiment. “This is a pilot,” he said in an interview with The Chronicle. “Experiments fail. I’m doing everything I can to make sure this does not fail.”
Georgia Tech’s cautious approach starts with enrolling students who are likely to succeed. One of the variables that sank San Jose State’s initial experiment with Udacity last spring was including at-risk students in the experimental trials. Courses offered to a broader mix of students during the summer, however, had better outcomes—possibly because more than half of them already held college degrees.
Georgia Tech’s experiment plays it relatively safe. Because it involves a master’s program, the students will have already earned undergraduate degrees, and many of them already have jobs in the industry. And the students who were admitted have an average undergraduate GPA of 3.58.
The inaugural class is also neither massive nor open. The program has admitted 401 students—360 men, 41 women—out of 2,300 candidates. Those who decide to enroll will begin classes on January 15, according to Jason Maderer, a spokesman.
With exacting admissions criteria and an entering class in the low hundreds, Georgia Tech’s collaboration with Udacity seems less like a MOOC than many existing online graduate programs. Other than the low tuition—set at $6,600, a fraction of the price of the university’s face-to-face program—the difference is that these students will have the same experience as the program eventually hopes to deliver to thousands of students at once, said Mr. Peterson.
If 250 students end up enrolling, he said, the university will “approach those 250 as though they’re 2,500.”
“We believe this model is scalable,” he added.
In any case, the Georgia Tech president made it clear that he was doing all he could to make sure the Udacity pilot got off on the right foot. Mr. Peterson alluded to the beating his university took in the press last winter after it was forced to abort a dysfunctional MOOC—one about online-course design, no less—after it had started. When it comes to experiments, “being first is important,” he said. But that knife cuts both ways.
In an interview with The Chronicle last spring, Mr. Qayoumi, the San Jose State president, borrowed a bit of rhetoric from Silicon Valley to describe his approach to fostering innovation on his campus. “We want to fail fast, learn from it, and move on,” he said. By those lights, San Jose State’s experiment with Udacity delivered on the president’s promise.
Mr. Peterson is taking a more conservative attitude to Georgia Tech’s pilot with Udacity: “I don’t like doing things that fail,” he said.
Tim Hwang will lead a project on Social Architecture of Intelligent Systems, at the new Data and Society Research Institute in New York.
According to Tim, the project will involve legal informatics to some extent:
Legal informatics definitely a part of it! Examining it alongside high-frequency trading, AI in the medical space, etc.
Here is a description of the project:
The Social Architecture of Intelligent Systems project is developing a proposed framework of regulation — inclusive of laws, norms, code, and markets — to shape the role of intelligent systems as they increasingly enter new sectors of the economy in coming decades. To do so, the project is engaging in a series of interviews with a range of industry experts working to bring these systems into fields as wide-ranging as medicine, capital markets, law, and energy. It also looks to the past to inform the present: examining how previous waves of automation have shaped and been shaped by their social context. Our goal is to articulate the novel policy concerns raised by this new generation of automation, and create effective mechanisms to balance these concerns with the promise of these innovations.
The institute is now accepting applications for fellows.
Here is an excerpt of the announcement:
[...] Landesa and FrontlineSMS are delighted to welcome and share the announcement today of a US $1.5m Google Global Impact Award, which will enable them to use mobile technology to transform the way that the government in the Indian state of Odisha helps landless families gain secure rights to their land and homes.
Land titling through mobile technology
With the Google award, FrontlineSMS and Landesa will work directly and through barefoot lawyers already in place in Odisha to build and roll out a mobile technology-based land titling system. Mobile telephone technology will allow government officials to exchange information with remote locations, enabling the state to provide land titles more quickly and more efficiently to as many as 80,000 poor rural households.
Approximately 1.25 billion poor people across the globe depend on land for their livelihood, but lack secure legal rights to land they occupy or cultivate. The largest concentration of those extremely poor, landless people is in India, where landlessness is the best predictor of poverty. Meanwhile, mobile phones are the most widespread digital communications technology the world has ever seen. This project will harness the comparative efficiency of mobile technologies to help vulnerable families gain legal control over their homes and homestead land. [...]
For more details, please see the complete announcement.
It is easy to add hyperlinks to legal documents, but it seems to intimidate lawyers, because they rarely do it. I get a lot of Word documents as draft posts for Lawyerist, and very few of them contain hyperlinks. And I’ve seen a lot of pleadings and memoranda in state and federal court litigation, but none of them (other than my own) have had hyperlinks.
Adding hyperlinks to Word documents is easy, it is useful, and it is something you really need to know how to do.Inserting Hyperlinks in Word Documents
For starters, you will need the URL of the hyperlink you want to insert into your document. Navigate to the web page or document in your web browser, and then copy the URL from the address bar. (Just highlight the URL and select Edit > Copy from the browser or right-click menu, or use Ctrl +C in Windows or Cmd + C on a Mac.)
Now, in Word, select the text you want to link to something. In a statement of facts, for example, you might select your citation to the record, like so:
Now, go to Insert > Hyperlink, right-click and select Hyperlink, or just press Ctrl/Cmd + K. The resulting dialog looks slightly different in Word for Windows and Mac.Windows (Word 2010)
The Insert Hyperlink dialog on Windows versions of Word is confusing, but all you need to do is paste your URL (Edit > Paste or Ctrl + V) into the Address field.1
Then, click OK, and that’s it, you’re done!Mac (Word 2011)
Just paste your URL (Edit > Paste or Cmd + V) into the Address field, and click OK. Done!Converting Word Documents with Hyperlinks to PDF
There is a right way and a wrong way to convert Word documents to PDF. The right way results in smaller files and preserves hyperlinks. The wrong way makes your documents look silly, with unclickable, blue, underlined words.
For the right way, go to File > Save As in Word, select PDF from the Save as type (on Mac, Format) menu, and save your PDF document. If you use Windows and have Acrobat installed, you will also have a File > Save as Adobe PDF option, which you can use instead. This gets you a text-based PDF, instead of a scanned image, which means it preserves most of the information your Word document had, including links. If you print the document and scan it, you just get an image. OCR can restore the text information (albeit with some errors, usually), but it will not automatically add things like links.
If you need to add your real signature (as opposed to an e-signature) to your document, then just scan the signature page, not the whole document. You can replace the blank signature page in your PDF with your scanned signature page. Do do this in Acrobat, just go to Tools > Pages > Replace.
For a lot more information about using Acrobat for legal documents, and in law practice generally, check out PDF for Lawyers.Why You Should Use Hyperlinks in Legal Documents
When it comes to litigation, at least, because judges want you to. Linking citations to the record on PACER or your state’s e-filing system, if it has one, is a big time-saver for judges. When it comes to legal documents you draft for other purposes, it may be useful to add hyperlinks, but consider how the document will be used.
If people are likely to read the document on a computer, tablet, or smartphone, and if hyperlinks would be useful, then you should definitely use hyperlinks. But you cannot click paper, so if there is no chance people will read your document in an electronic format, then it probably does not matter if you add hyperlinks, unless they are for your own use.
FYI, there is no point in linking to documents on your computer or a file server unless the recipient of your document will be reading it on your computer or, in the case of a document on your file server, on a computer on your network. This can be useful for internal documents, but it is useless for anything else. ↩
How to Insert Hyperlinks in Word Documents is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
[ Note: in accordance with accepted fundraising practice, I hereby present a link that you can click if you just want to give some money to the Legal Information Institute without having to read the rant that follows. Two rants, really, because this is a rant about a rant. ]
Two fundraising-related things went across my radar screen this morning. The first was a post in Jeff Brook’s excellent “Future Fundraising Now” blog. The second was a TV ad for a child-hunger-relief charity. They crashed together with a loud clang.
I have learned a lot from Jeff Brooks over the last year, almost all of it absolutely on-target and helpful. I’ve been trying to educate myself about fundraising and fundraisers, so I went from reading 20 or so fundraising blogs intermittently, to steadily reading the best and most useful. His blog really stands out from the pack. The ones I read attentively are selected both for usefulness to a novice like me, and because they often promote fundraising ideas and messaging that I find at least counterintuitive and sometimes very difficult to agree with. That’s good for me, and for the LII’s fundraising appeals. I lack experience, and I know it (and I’m about to demonstrate that).
You should read the Brooks piece here. The thrust of “Who’s destroying your fundraising messages?” is that inexperienced executive directors are gutting fundraising efforts by insisting on dry narratives that contain only facts, figures, and program descriptions that lack emotional appeal for donors. Of course fundraising messages need to connect with donors at an emotional level — that’s just good sense. But the hyper-emotional appeal is not the only available strategy, and I don’t believe that it is equally effective for all people, all organizations, all causes, or all donor cultures.
It can surely be taken too far. About a half-hour after I read the Brooks piece, I saw a TV spot for an organization that works with child hunger. A Very Well Fed Fellow In A Bush Jacket, wandering around in an Impoverished Place That Is Clearly Not The United States, shows us a parade of impoverished children. Pictures of the starving are accompanied by a grandfatherly narration about how much they’re suffering. He ends with a description of “little Daniela” who will “be hungry again tonight”. That’s when the bell went off. Why, after her stint as a spokesmodel, is she going to be hungry? They couldn’t leave a tip? I really hope the sound guy or the cameraman or Bush Jacket Grandpa gave little Daniela a Clif bar and a bottle of water. Or maybe they just threw the gear in the Land Cruiser and tooled off to find more kids who are starving in an appropriately photogenic way.
That’s an extreme example and — let me say it again — I’ve got no beef with the idea that good causes have to find ways to connect with their supporters. However challenging it may be, we need to demonstrate the impact of what we do in ways that are effective and meaningful at an emotional level. Of course we do. We want people to support us. We want to show both the value that our work has for real people, and that their support is being used in ways that are actually accomplishing something in the world — and that means show, and not just tell. But to insist that every mission and every program provide a 100-kilonewton tug to the heartstrings is sometimes inappropriate and sometimes — very infrequently, but sometimes — counterproductive for the mission of the organization.
To the fundraiser who found his ED so uncooperative, I’d say this:
a) Many EDs, as people, are simply not comfortable making what they see as hyperbolic, hyper-emotional statements about what they do. They don’t do it in person and they don’t like seeing their organizations do it. They feel like they’re showing their underwear in public, making claims and being manipulative in a way that is fundamentally immodest. Most of them are deeply (and emotionally!) committed to the cause they work for, but they’re shy about how they say so. They believe in appeals to reason; they find them highly motivating. And by the way, that’s true of the geek culture here at the LII and of the donors (who tend to be geeks, lawyers, or both) who support us. The very popular book, “Kiss, Bow or Shake Hands”, a collection of crash-courses for those doing business with other cultures, spills a lot of ink over the question of what other cultures accept as evidence; it’s worth thinking about. Some of those cultures are closer to home than you think.
It’s not that EDs who don’t like hyper-emotional appeals don’t respect the work of fundraisers, or that they don’t understand it (though very few, including me, actually do). It’s that they believe in policy and they believe in technical and structural solutions, and in order to be successful program directors they have learned to channel their own emotional energy into the dispassionate place where administration, evaluation, and strategic thinking have to take place. The best fundraisers I know are completely schizophrenic — warm on emotional appeals and personal connections, dead cold on the numbers and on evaluation.
Besides, there’s a way to deal with this. How come the copywriter didn’t suggest to his ED that they simply do an A/B test? The ED is persuaded by numbers. Give him some.
b) Somebody I once did theater with used to insist that the first rule of comedy is this: If you bring a paper shredder onstage somebody’s necktie *has* to go into it.
In other words, you have to deliver on implied promises. I’m not sure what the stewardship implications of highly emotional appeals are. My guess is that those who write them are figuring that that’s somebody else’s problem, or that rationality and practicality can come later. If I call the children’s charity and say, “Hey, how’s Daniela doing?”, are they going to have an answer for me? What if I decide that Daniela’s the only kid in the entire world that I’m willing to sponsor? The deliberate impracticality of strong emotional appeals raises practical issues. They can, and do, implicitly overclaim. Just as the heart responds to the emotional appeal, the heart envisions a happy solution that may or may not be possible for the organization to deliver. If we imply a promise to change the world overnight, what happens when we don’t?
c) I’ve seen copywriters who can’t find an emotional hook for their message give up and look no further, or worse, fabricate something. They assume that if they can’t summon up an emotionally appealing beneficiary in the first hour they work for the organization, then there is no message to be had. If they stop there — and some do — they end up knowing far less than they ought to about the mission, operations, and impact of the organizations they work for. If they can’t find an “if it bleeds, it leads” story to tell, they think there’s nothing to say.
Trust me, every organization has a story or two to tell that will make a connection with donors, and I suspect that in dismissing everything that doesn’t have immediate and obvious emotional impact a lot of very valuable stuff gets lost, including, sometimes, the true appeal of the organization (one of ours is objectivity, see below). The answer to that ED and his problems with your heart-rending story is to simply ask him why he does what he does. And ask the rest of the staff. And ask the donors why they give. Find out what your organization does, how it does it, and what the people who do it feel about what they do. Be creative.
d) Overfocus on emotional appeals can, in some fairly rare cases, distort the organization’s mission and dilute its effectiveness. The LII is, I think, one of those rarities. I’m well aware that Special Snowflake Syndrome is a risk for all EDs, but I really do think that what we do here is a little different and more challenging.
Our job here is to make legal information available to people — Federal law and regulations, and the writings of the Supreme Court — all products of public institutions that at any given moment may be more or less popular with potential donors. We are based only on the Internet, where we attract more than 24 million unique visitors every year. We know very little about all but a very few of them. But every donor or audience survey we have ever done in our 20-year history lists objectivity as a key component of our value in the minds of those we serve. We don’t want to compromise that with over-emotional appeals that would, inevitably, try to make their case by invoking partisan sentiment about government. We’ve seen this happen in other organizations. We have many colleagues and allies at organizations that promote government transparency. And we’ve watched over the years as some of those organizations have rallied their troops and raised money by taking deliberately oppositional stances that diminish their effectiveness with the very people in government whose help they most need. Whipping up the emotions rallies the supporters and it brings money in the door, but it can also make a lot of people less cooperative.
Bottom line: the right answers are negotiated between the two poles represented by the ED and the copywriter. And then they’re tested. I wonder how much of the money that was lost by the organization in the Brooks story was lost because the copywriter was trying to teach the ED a lesson.
We’re grappling with all these questions here at the LII. Going into this season we’ve thought a lot about our impacts, our message, and what we want to say to the thousands of people who give us a little bit of money because we helped them, or because they want to help someone else. Because we deliver our services in what is essentially an anonymous, broadcast medium, it can be hard to know what concrete benefits we have for a particular individual in a particular place. We know that we help a lot of them for not very much money (about 5 cents for every person we serve in a year). They have their own reasons to need access to law, and the law is itself, in turn, a tool for accomplishing something in their lives, for solving problems that they have. To borrow a bit from Harvard Business School marketer Ted Levitt, we sell electric drills to people who want quarter-inch holes. And, come to think of it — they don’t really want the holes, either. They want to hang something on the wall, and we don’t know what.
We’re learning a lot more about what some of those purposes are and how we can change and improve our collections and our technology to help them find and understand what they need. We don’t have very many dramatic stories to tell — yet. Our biggest job is to help people reduce the amount of drama in their lives, by helping them solve problems that involve getting a little knowledge of what the law says. Among the people that we help are lawyers at non-profit organizations (literally hundreds of them) who would rather spend money on their mission than on access to the tax laws. So we are saving the world — we’re just doing it through others, one statute at a time.
We offer that — all 500,000 pages of information — freely, to 24 million people each year, at a cost of about a nickel apiece. We do it without drama and with as much objectivity as we can manage. We’d like your help. Please give by clicking here.
And if you’ve got a good story to tell about how we helped you, please send it along.
As part of my recent tour of Australia – well, the south-eastern part any way – George Beaton invited me to speak at a few of his live and taped events. One of the many points that interested me was his modelling on Axiom. As many know, Axiom provides embedded counsel to companies needing to fill gaps in its skill sets on short term bases. It has grown rapidly and profitably over the past 10 years.
According to George, Axiom, grew its revenue at a 72% compound annual growth rate from 2002 to 2011 while at the same time, DLA Piper, has grown its revenue at 13% CAGR. At this rate George predicts that Axiom will be the largest legal services provider by revenue by 2018.
And Axiom is certainly not alone at the embedded counsel party. Cognition and Conduit are the Canadian pioneers who are gathering clients with little difficulty now. AdventBalance is the Australia edition to the embedded counsel phenomenen. Ken Jagger, its CEO, also spoke at the live events with me. AdventBalance now has offices across Australia and in Singapore and has placed embedded counsel around the globe.
Still think that the world of legal services is not changing?
In early December of 2011 and 2012, I posted top 10 lists of the most consulted cases. Two lists were published each year – one for all cases consulted and the other for consultations of cases decided in within that year. With the tradition now firmly established, I’m very pleased to present for 2013 the top 10 most consulted cases on CanLII.
As in prior years, I leave it to the readers to determine the significance of any case appearing on either list.
Top 10 most consulted cases of 2013
As of 9:10am on 11-12-13, Duncan attracted an astonishing 47,598 consultations. While continuing the multi-year trend of the top case offering more smiles than value in the form of binding precedent, Duncan nonetheless distinguished itself by eclipsing not only the 19,149 consultations in 2012 of Langevin, 2012 QCCS 613 and the 18,641 peak established in 2011 by Bruni v. Bruni, 2010 ONSC 6568, but it beat their combined total by roughly 30%.
At number 10, Bedford drew 7,152 consultations, just shy of the 7,189 views of last year’s number 10.
Among cases decided in 2013, the top 10 looks like this:
The number 2 spot following Duncan was claimed by Magder v. Ford which, as of the 9:10am 11-12-13, counted 14,423 consultations. In the number 10 spot, Penner attracted 4,808 views – exceeding 2012’s “in-year” 10th place finisher by over 600 views.
Background and miscellanea:
If you like podcasts, and who doesn't — it's hard to beat learning something and getting to close your eyes at the same time — you might take a listen to the McGill Podcasts, and particularly those in their Law & Society category. There are about twenty or so "pure" podcasts and the same number again of earlier videos.
The subjects range widely, including, for instance, "The Syrian conflict and the International Criminal Court: Interview with Human Rights Watch’s Richard Dicker," "Tax Avoidance, Tax Evasion, and Tax Justice with Professor Allison Christians," "Racial Profiling in the Canadian Context, featuring Fo Niemi and Tamara Thermitus," and "La controverse Nadon avec Maître Bernard Synnott et Professeur Paul Daly."
My only gripe is that it's not possible to tell how long the podcasts are — at least, not possible given the way that my browser renders them.
I am interested by recent discussions I have had with librarians at various law libraries about how they make decisions about what materials to keep, cancel, or discard. Many are looking at the holdings of other libraries and relying on them to provide access to less commonly used materials rather than maintaining them locally. This is understandable, but it is only a viable decision if the lending libraries continue to maintain their collections. Instead, this appears to be done without formal agreements among the libraries about retention of materials, consideration of whether it is within the supplying libraries' mandates to provide access going forward, or if they are likely to maintain the same level of service over time.
I have experience of a large government library which provided extensive document delivery, and several university libraries chose to discard substantial holdings based on access to its collection and services. Eventually the government cut funding to the library, and difficult decisions had to be made about what was core to the organization as a whole, and one of them was that content aimed at external stakeholders was no longer core to its mandate. The university libraries had seen it as the role of the government library to maintain these collections and services in perpetuity, but there was no formal agreement that this was what it would do, and funding cycles created different priorities.
This situation is reflected on a smaller scale in several conversations I have had with librarians who are experiencing shrinking physical spaces and budgets. In each of these cases, decisions are being made regarding whether materials will be maintained as ongoing current subscriptions, discontinued but kept, or discarded, based on the holdings of other institutions. Private law libraries look to courthouse libraries, courthouse libraries look to university libraries, university libraries look to each other, and everyone looks to the Supreme Court of Canada Library. The problem is that it seems budgetary pressures are being felt at all levels of the chain, and these decisions are being made without consultation.
It used to be that most libraries maintained collections on a “just in case” basis, and, since information was so difficult to acquire, it made sense to operate that way. In times of tighter budgets, higher real estate costs, and easier access to information online, there is more pressure on libraries to maintain only those resources which are regularly used. These forces affect all libraries, but those with primarily practice based collections are particularly so: this includes libraries in law firms, law societies, and many government departments. This is represented by a switch to a “just in time” model of collection development: where materials are obtained as they are needed. However, things can only be obtained in time if they are held somewhere, and usually that means somewhere local.
A selective survey of the existing environment reveals the following: law society libraries have a national resource sharing agreement; however, it doesn't include interlibrary loans of books or other print materials, and there is no formal agreement relating to what collections any particular library will maintain in perpetuity for the support of the others. Among academic research libraries there is an agreement among the Ontario Council of University Libraries regarding the retention of the last copies of materials, particularly journals. However, it isn't clear if it has been implemented. It isn’t possible to include mention of all similar agreements among library systems nationally, but most libraries have information about them available on their websites.
During these discussions, we also discussed the role of the Supreme Court of Canada Library, and I have at times been the grateful beneficiary of its generous loan policies. In some ways the SCC Library is filling a role as a source for legal materials that aren't available elsewhere, like the Library and Archives of Canada did before recent service cuts; however, there is nothing in its mandate that requires acquisition of materials to support external needs. The library has reciprocal agreements with other libraries with the aim to provide service to internal clients and contribute to the legal community nationally, which you can read about here, and it is generally supportive of giving the legal community access.
I would argue that in institutions with the extended timelines of law firms, law societies, government departments, and courts, it is a precarious thing to base decisions on having access to the SCC Library's collections when there is no explicit mandate to make them available. Government libraries generally are retreating from the provision of access to their collections as a standard service to the public and libraries, for example consider Library and Archives Canada's cancelation of their interlibrary loan program.
I have been told that in a public library there is, on average, a complete turnover of the collection every five years, but in law libraries the needs are different. One day there may be a real and immediate need to consult a volume from the second edition of Halsbury's Laws of England that was published in 1932 or read a case from 1753 that was only reported in a footnote, and there will be repercussions for not having it. This is not to say that I think we should be trying to retain all obscure materials, only that decisions be made with the understanding that they will likely not be as easily available in the future.
It is a potential solution for libraries to enter into reciprocal agreements to maintain certain materials. Libraries within individual law firms could agree to maintain particular titles and share access as required. Law society libraries could agree to maintain content relevant to their own jurisdictions, freeing the others to concentrate on local needs. Universities could agree to provide access to each other as required as they discard materials, which are not regularly needed. Agreements could also be made that if the last copy of a title is being discarded it should be kept or offered to the other libraries for archival purposes. Some of these options are easier to achieve than others: for the libraries internal to a law firm to agree to supplement each others' collections is quite straight forward, but reciprocal agreements across organizations are more difficult.
As an example, implementing a program of retention of last copies seems like it should be simple, but it is complicated when there is not an easy way to find current information about where materials are. The university libraries in Ontario have a union catalogue, but many other groups of libraries do not, and as the holdings in Library and Archives Canada's AMICUS catalogue are not always maintained, it can be impossible to know when an item is a last copy. It is even more difficult in the case of law firms where what libraries have is considered a competitive advantage, and, short of sending and answering personal queries as a professional courtesy, it is impossible to know what anyone has.
Libraries all seem to be facing space restrictions, which limit the historical holdings they can maintain. They also all seem to have budgetary restraints, which limit what they can purchase. It is tempting to rely on other libraries to fill in the gaps. In the past this has generally been a successful strategy, but as all libraries decrease holdings it becomes a liability, and some materials are expensive, difficult, or impossible to replace if discarded in haste. I have heard anecdotes of libraries being asked to subscribe to titles another libraries have recently cancelled when they are trying to cut their own subscriptions, and without coordination it is unlikely that current networks will continue to be able to meet the needs they effortlessly handled before.
Thank you to Rosalie Fox, Louis Mirando, and Mandy Ostick who kindly answered my questions in the writing of this column.