You probably have not even been paying attention as to whether you still have QuickTime on your Windows machine, because Apple hasn’t issued a major Windows QuickTime release since 2005, which is one million years ago in internet time. In January, Apple stopped supporting QuickTime entirely, which is more of a problem then you might think. In fact, it’s enough of a problem that the Department of Homeland Security wants you to get it off your computer.
The company decided this week not to issue any more security updates for QuickTime on Windows, despite two major vulnerabilities in the software that can allow hackers into people’s computers. […]
QuickTime for Windows will continue to work, and is curiously still available for download. But Apple and DHS urged Windows customers to uninstall the program.
“Using unsupported software may increase the risks from viruses and other security threats,” DHS said in its alert. “The only mitigation available is to uninstall QuickTime for Windows.”Grammar-Obsessed People Are Mean
Are you the kind of person that wants to crawl out of your skin when you receive an email where someone misused their/there/they’re? Turns out you are maybe not as nice as people who are not bothered by such things.
According to Boland and Queen’s research, more agreeable participants (as determined by the results of the Big Five Personality index) tended to rate grammar errors less harshly than less agreeable participants, who showed more sensitivity to “grammos” — homophonous grammar errors like to/too, it’s/its. […]
Introversion/extroversion and conscientiousness also had some correlation with how grammar errors were perceived.
“More extroverted people were likely to overlook written errors that would cause introverted people to judge the person who makes such errors more negatively,” the study says. “Less agreeable people were more sensitive to grammos, while more conscientious and less open people were sensitive to typos.”Don’t Use Stolen Privileged Information (Even If You’re Not The One That Stole It)
An attorney in Missouri just got suspended for using privileged information that his client, not he, had obtained illicitly.
In the case of [Joel] Eisenstein, his client in a divorce case obtained the client’s wife’s payroll information by guessing the wife’s email password, according to St. Louis Today. Another nice little treat was a list of the direct examination questions prepared by opposing counsel. The client passed this information on to Eisenstein in 2013.
You may be wondering how this ever came to light and became a sanctionable offense?
Eisenstein blundered and included this pilfered information in a stack of exhibits that Eisenstein gave the opposing lawyer during trial.
Pro-tip: if you are going to be unethical and privileged information, at least don’t be monumentally stupid about it. Better yet, don’t be unethical in the first place.Now Apple Is Just Openly Mocking The DOJ
Though the DOJ was eventually able to get into the phone of the San Bernardino shooter without Apple’s help, they have continued to request Apple’s assistance to break into other iPhones. Most recently, the government has insisted that Apple help them break into the phone of a New York meth trafficker. Last Friday, Apple filed a brief indicating how utterly uninterested they were in providing such assistance. The most hilarious part of the brief? Apple telling the government that perhaps they could just call the people that hacked the San Bernardino iPhone.
Google and the Authors Guild have been fighting for 12 years over whether Google had the right to scan and digitize twenty million books in their entirety and then upload snippets of copyrighted materials for the Google Books project. At the heart of the case was the Guild’s argument that the wholesale scanning of books wasn’t fair use and wasn’t transformative. Last year, the Second Circuit held that Google making piles of material available for everyone to access, even in snippets, was transformative and tossed the authors’ case. Today, SCOTUS denied the Guild’s request to hear the case, which means you can continue to Google book excerpts to your heart’s content.Forum Shopping Might Get You Sanctioned
Attorneys on both sides of a class action case agreed to change forums, which is not uncommon, but in this instance, the federal judge did not like it one bit.
Chief U.S. District Judge P.K. Holmes III announced that he intends to impose nonmonetary sanctions on all but one of the counsel of record for both sides in a class-action insurance coverage case, for using settlement tactics intended to benefit the attorneys at the expense of the plaintiffs. […]
Holmes found that the 16 lawyers violated Rule 11 of the Federal Rules of Civil Procedure by agreeing to dismiss their Fort Smith, Arkansas, federal case and then immediately refiling it in state court with a stipulated settlement. Doing so, he says, was intended to avoid the greater scrutiny that a federal court would have given the purported $3.4 million settlement—which potentially could have provided monetary relief to nearly 15,000 homeowners with a USAA insurance policy but, due to onerous requirements, had actually seen claims filed by about 650 as of February. Meanwhile, the lawyers involved got an immediate payout of more than $1.8 million in attorney’s fees.
Featured image: “ Online reading news. Flat line contour illustration concept” from Shutterstock.
Briefs: Uninstall QuickTime ASAP, Apple Trolls the DOJ, Etc. was originally published on Lawyerist.com.
In the UK in 1970 a husband who could not afford legal representation in his divorce proceedings used an Australian barrister, who was not qualified to appear in an English court, to help him. The judge barred the Australian from sitting next to McKenzie at the hearing. McKenzie appealed this decision on the ground he had been unfairly denied help. The Court of Appeal agreed, and according to an article last week in the UK Guardian newspaper, “broke lawyers’ monopoly on providing legal representation”.
There is a healthy industry of lay legal advisers in the UK today. They are called “McKenzie Friends”.
Although anyone can call themselves a McKenzie Friend in the UK, there is today a self regulated body – Society of Professional McKenzie Friends Ltd.
They offer services to people representing themselves in court, at much lower cost than a solicitor or barrister.
According to the Society’s website McKenzie Friends help personal litigants by: providing moral support; taking notes; and helping with case papers. They also “quietly”give advice on points of law or procedure, issues that the litigant may wish to raise in court and questions the litigant may wish to ask witnesses.
Members of the Society of Professional McKenzie Friends Ltd are insured. They have law or relevant qualifications equivalent to A Level (Grade 12), or they have worked 20+ hours a week as a McKenzie Friend for 3 or more years. The Society offers an investigation and complaints procedure.
According to Barrie Hanson, Canadian courts have been asked to allow non-lawyer agents to appear for parties, but the exercise of this discretion, in jurisdictions where it exists, will been exercised rarely and with caution.
The use of McKenzie Friends in the UK has become so widespread, according the Guardian article, “… the judiciary is considering imposing regulations that will ban them from being paid in England and Wales”. A judicial consultation ‘Reforming the Courts’ approach to McKenzie Friends’ is now underway.
This article is by Nora Rock, corporate writer & policy analyst at LAWPRO.
While it’s easy to view articling students as a source of extra help, the primary purpose of articling is to provide a valuable apprenticeship to the student, not simply to lighten the lawyer’s load. Today’s law school curriculum has a strongly theoretical focus. Students spend a great deal of time learning to research the law and to “think like lawyers”, and limited time learning about how to operate a law practice.
That’s where articling comes in. As an articling principal, you are charged with teaching students about how legal services are delivered to clients. A good articling experience will see students exposed to various office systems (ticklers, filing systems, searches, docketing and billing, and others) and procedures.
It’s important to learn about these procedures, especially for students who will ultimately end up practicing in sole or small firms. But we suggest that learning about procedures is not sufficient: practicing lawyers should also take the time to explain the rationale behind the systems that support a law office. In other words, students should not only learn, for example, how to docket their time; but also WHY lawyers docket time. Take the time to ensure that your students understand that dockets will potentially serve as evidence in support of a claim for costs, or as evidence in support of a defence to a client’s assessment of the lawyer’s costs.
Similarly, don’t just tell the students that they need to flag certain information so that law firm staff can enter it into the tickler – explain why a tickler system is necessary to ensure the proper management of file deadlines. An important aspect of your students’ apprenticeship is learning how to be a good lawyer who understands malpractice risks and takes active steps to minimize these risks and to prevent claims.
Did you know that LAWPRO creates resources tailored specifically to new lawyers and law students? We hope you’ll encourage your articling students to visit our New Lawyers’ Resources page on practicepro.ca.
Rabb.it shared browser lets you chat over movies—or e-books – TeleRead News: E-books, publishing, tech and beyond http://www.teleread.com/rabb-it-shared-browser-lets-you-chat-over-movies-or-e-books/
An accused has a constitutional right to a fair trial and may raise concerns about race and discrimination if they identify it as an issue in their case. Furthermore, lawyers have an obligation to remind their client of this right. This very issue arose in R v Fraser (Fraser). In Fraser, a white student accused a Black high school teacher of committing “sexual improprieties”. The appellant raised concerns about racial bias both before and during the jury selection, but his lawyer nonetheless failed to tell Fraser that he had the right to challenge for cause. Upon being convicted, the accused asked for the verdict to be overturned. This appeal was made on various grounds including that Mr. Fraser’s lawyer failed to tell him that he had the right to challenge possible jurors as to whether their ability to judge the evidence would be unbiased considering he was a Black man and the complainant was a white female student. After appreciating the totality of the case, the judge found that lawyer’s conduct amounted to incompetence, which was a miscarriage of justice. The holding at appeal in this case begs the question: should a lawyer be culturally competent and if so, when should that training begin? I argue that lawyers should be competent in the societal issues that impact their clients in order to provide quality legal services. Such issues would include being aware of systemic racism and the legal system’s impact on marginalized people.
Competence and Quality of Service
As it currently stands, the rules concerning competency do not adequately capture what it means to be a lawyer in Canada today. A “competent lawyer” is defined as one who possesses and can apply “knowledge, skills and attributes” in a manner that benefits the client. This rule overlaps with a lawyer’s duty to provide quality legal service, in that competency impacts the quality of service that can be provided. A connection is further drawn between legal education and competency as the rules also goes so far as to say that a competent lawyer should pursue professional development to remain competent, and to strengthen their legal knowledge and skills. However, such training should begin sooner. Cultural competency training should begin in law school so that newly admitted lawyers are better equipped to provide quality legal services to their client.
The Current Law School Model
Law school teaches students a new mode of thinking, aside from critical and legal analysis. At most Canadian law schools, the required first-year courses that we take to develop such skills are: Alternative Dispute Resolution, Constitutional Law, Contracts, Criminal Law, Property Law, Public Law and Torts. But, how can we learn about criminal law without understanding systemic racism? How can we learn about property law or constitutional law without understanding the colonized history of Indigenous Peoples in Canada? Moreover, how can we study public law without also discussing the lack of racial diversity on the judiciary?
The University of Ottawa Faculty Law allows first-year law students to take a thematic course of their choice so that students can get a taste of what’s in store when we are upper-year law students. As first-years, we can choose from courses such as: “Cyber Feminism”, “Natural Resources Law” and “Disability Rights Law and Social Justice” taught by leading professors in the legal field. In my first year of law school, I opted to take “Aboriginal Legal Mechanisms” taught by Professor Larry Chartrand. More than wanting to learn about Indigenous legal principles for the sake of interest, this decision was also a political one: learning about various Indigenous legal traditions should be mandatory for all law students. Accordingly, the course should not be seen as an optional “social justice” one; Indigenous law should be seen as a third pillar of law, alongside common law and civil law. Indeed, such education and intersectionality of the law school curriculum would aid in enhancing the competency of law students so that we can provide quality legal services as lawyers.
What We Can Learn from Allard Law, Bora Laskin Faculty of Law and Robson Hall
The University of British Columbia Faculty of Law has made Aboriginal Law a mandatory part of their curriculum. As of September 2012, all incoming law students must complete an Aboriginal Law course as part of their learning of Constitutional Law. This decision was not only to comply with the Federation of Law Societies of Canada’s 2015 national standards, but also because the law school wanted its graduates to be competent in Aboriginal rights.
Lakehead University’s Bora Laskin Faculty of Law, which houses the first female Indigenous Dean at a law school, has also made Aboriginal law mandatory for its law students which was in line with the recommendations made by the Truth and Reconciliation Commission (TRC). More recently, the University of Manitoba has also moved forward with the TRC’s recommendation #28, and as part of the curriculum review process, has proposed that competency in Indigenous Legal Traditions become mandatory in their Juris Doctor program. Thus, this shift in the law school climate demonstrates the value in cultural competency and how it can improve upon solicitor-client relations in the long run. Appropriately so, a national standard should be adopted at all Canadian law schools so that we graduate as culturally competent law students who are aware of the intersectionality of the law with social issues, and can sincerely represent our clients resolutely and honourably.
The law school curriculum can play an integral role in addressing the micro and macro-ethical issues of cultural incompetency. On a micro level, a lawyer would be better equipped to provide quality and competent legal services. On a macro level, it may restore trust in lawyers generally, and may also reduce the number of lawyer complaints based on the lack of knowledge of structural discrimination.
If we truly want to be great lawyers and provide quality service to our clients, cultural competency should be taught as soon as we enter law school doors; it should not be an option as without it would be a disservice to our future clients. To avoid another R v Fraser, our clients expect a certain standard and our profession demands it. It is due time that we all set the standard for future, incoming lawyers.
Samantha Peters is a third-year law student at the University of Ottawa Faculty of Law in the English Common Law Program. Researching and writing on cultural competency for lawyers and judges alike in Professor Adam Dodek’s course on Professional Responsibility and Legal Ethics has inspired this blog post. A special thank you to Naomi Sayers for her comments on this paper.
 Alice Woolley et al, Lawyers’ Ethics and Professional Regulation, 2d ed (Markham: LexisNexis Canada, 2012) at 166.
 The Law Society of Upper Canada, Rules of Professional Conduct, Rule 3.2-1.
 Ibid at Rule 3.1-1(j).
We have been fortunate to have taught legal ethics over the past two decades at four law schools: U of T, Osgoode, Windsor and uOttawa. We quickly came to appreciate the multiplicity of experiences and perspectives that students bring to the discussion of these issues. We both have included requirements that students write short analytical papers, along the lines of the blogs that appear here on Slaw, or newspaper op-eds.
We both encourage students to dissect a particular issue, to push themselves and to be creative. We have been well-rewarded with thoughtful and original pieces. The work of these students deserves a broader audience.
Kudos to Slaw founding Publisher Simon Fodden and current Publisher Steve Matthews for providing a forum for our future colleagues at the bar. This year’s set features Samantha Peters tackling cultural competency, Monica Befa introducing us to the ethics of tweeting, Valerie Akujobi considering the challenge of advertising for women lawyers, Lindsay Carbonero addressing the importance of treating mental health as a professionalism issue and Cathleen Brennan arguing for why the proposed LSUC restrictions on judges returning to practice do not go far enough.
We have said enough. We shall let these students’ voices speak for themselves.
Email marketing can be a powerful means of bringing in new and repeating business. Compared to other marketing channels, email marketing costs less and typically has a high return on investment.
Once you commit to email marketing, you will need email marketing software to deliver your campaigns. With so many options out there, the abundance of options can be paralyzing.
Here’s an overview of several platforms to help you determine the best fit for your firm. But first, let’s talk about why you need to care about email marketing.Why Email = Profit
Email is much more effective at reaching your intended audience than other channels. Though social media marketing is sexy and current, email marketing has much higher engagement.
A Facebook post reaches an audience member, on average, 2% of the time. Whether it is due to timing or the fact that Facebook is turning down the dial on unpaid content, your followers and friends probably will not see your Facebook posts. Email messages, on the other hand, reach their destination inbox 90% of the time, with comparatively little effort.How to Build Your Email List
Before you send out an email campaign, you need an email list.
First, you have your clients. You should, at the very least, have a spreadsheet listing your clients’ email addresses, names, and other contact info.
Beyond that, your current email provider should have a list of your contacts you can export. In addition to clients, your contacts should include referral sources and potential clients.
While this may be a good starting point, growing your email list should be a consideration. You can only send email blasts to a static list for so long before it is milked dry.
One easy way to build your list is through in-person networking. (This is how I end up with an inbox full of lawyers’ marketing emails.) Go to a networking event, collect people’s business cards, and add them to your mailing list. The drawback to this method is that you are adding people to your list without their permission, which might annoy them. With this tactic, you may wind up with a high unsubscribe rate from this channel.
Another common method of list-building is offering “lead magnets” on your website. Lead magnets are downloadable pieces of content designed to provide value to your visitors and get them to give you their email addresses. A Sign Up for Our Mailing List box on your website is not a lead magnet. People do not value those as much as you would hope. Downloadable content is much more effective.
Personally, I love lead magnets. (Here are examples from my own website.) They provide value to my audience and establish trust, which makes recipients more likely to work with me.Email Marketing Software
You should not blast out emails to clients through a mail merge in Outlook or by BCC’ing a thousand people. Instead, you should use email marketing software.
Email marketing software sends out emails on your behalf. The emails sent appear to most people as though they are from your email address, but the delivery is done entirely by the software or service.
Why should you use email marketing software instead of sending a mail merge in Outlook? There are a number of reasons.Delivery
Email hosting providers and clients like Gmail and Outlook put caps on the number of people to whom you may send an individual email. Gmail limits you to 500 emails, and Outlook maxes out at 100.Metrics
How many people actually opened your email? Beyond that, how many people clicked the links in your email to visit your website? The most important metrics of an email campaign’s success are open and click rates. With Outlook and Gmail, you cannot see how well your emails were received. You may find that some email subject lines are more compelling than others, and you have a few very loyal subscribers who consistently read your emails.
The more you know about your audience and their interest in your subjects, the better you can market to them in the future.Good-Looking Emails
One big advantage of using email marketing software is that you can send good-looking emails using drag-and-drop templates.
That said, sending your email campaigns in plain-text is an increasingly popular way to mimic the look of a typical Gmail or Outlook message from a friend or colleague. Consequently, these personal-looking emails might be more likely to get an open, click, or reply.Automation
For more serious email marketers who have websites featuring downloadable content or webinars, automation lets you create a sequence of emails which are sent based on a client’s action. If a client provides their email address on your website to download a PDF, you can automatically email them the PDF and follow up with an educational email sequence related to the PDF’s topic.
A good automation process takes care of all the steps for you. First, it will verify the subscriber has a real email address, so that a potential client can’t just subscribe as email@example.com. Then, it sends the sequence of emails that you choose in the time interval you set. You may want the first email to go to the recipient right away, and then the next email two days later.List Management
You need a way to easily manage your list of subscribers. They should be able to sign up for your mailing list on your website or through links.
Moreover, some people should not receive every one of your emails. Firms with varying practice areas, for example, may choose to send an IP-themed newsletter to IP clients, and a real estate-focused newsletter to their real estate clients. Email platforms allow you to create multiple email lists with different groups, categories, or tags (the verbiage varies between platforms) for each recipient.Spam Protection
Don’t spam people.
The poorly-enforced-but-still-existent CAN-SPAM Act of 2003 makes it a violation to send commercial emails that do not include the physical address of the sender and an unsubscribe option. Email platforms all have built-in compliance features including unsubscribe options and email footers with the sender’s company address.Email Platform Options
There are a lot of options for email marketing platforms to use.
They all send mass emails, but some have a different focal point (e.g. simple editor, customer service, automation sequences, integrations).
There are two tiers when it comes to email marketing: The basic and the behemoth. For most solo and small-firm lawyers, the basic email platforms will work fine.Basic Email
The most popular basic platforms are probably MailChimp, AWeber, and Constant Contact.
All these platforms have the same features described above, with minor differences.MailChimp
For 99% of law firms out there, MailChimp will do exactly what you are looking for. It has a very intuitive interface, the drag-and-drop editor is extremely user-friendly, and list management and automations are easy.
It also integrates with a lot of third-party apps. This is one of MailChimp’s most defining features compared to the other options out there. MailChimp’s integration with other software you use will make your life easier, cutting down on administrative to-dos.
But if you need complex automations, MailChimp is not the best option due to its simplicity (although it is very unlikely this will be a major concern for solo lawyers).
MailChimp has a free tier for up to 2,000 subscribers and 12,000 emails per month. For many solo and small-firm lawyers, that is sufficient. The only drawback is your emails will feature MailChimp branding. If you want to remove the branding, you can pay $10 per month. Automations and integrations also require a paid MailChimp package. Pricing scales to the number of subscribers you have. 2,500 subscribers costs $30/month, 5,000 subscribers costs $50, and so on.AWeber
AWeber has a feature set very similar to MailChimp.
One area of distinction is that AWeber has an industry-leading deliverability rate (the chance an email gets to a recipient’s inbox rather than getting bounced). This isn’t a critical concern when you have a small list, but as your list grows you may get frustrated by lost opportunities.
AWeber’s other point of distinction is customer service. They are available via phone, email, and chat. This is a plus if you are new to email marketing. Customer service is subjective though, so experiences may vary.1
In terms of templates, AWeber has about as many templates as Constant Contact and MailChimp combined. If you cannot find the perfect template, you probably have not looked hard enough.
One drawback is AWeber, unlike Mailchimp and Constant Contact, does not integrate with Google Analytics. This makes its reporting features lacking.
AWeber pricing starts at $19/month for your first 500 subscribers and $29/month for up to 2,500 subscribers. The pricing model and points are similar to MailChimp.Constant Contact
Constant Contact’s main point of differentiation is its intuitive user interface and wide array of email templates.
If you thought Mailchimp was easy to use for novices to email marketing, you may be surprised to see Constant Contact’s UI.
Constant Contact also has very good-looking mobile design—a big consideration if most of your recipients will be reading emails on their phones.
UI friendliness aside, there are several drawbacks. In particular, email delivery is slow (~15 minutes) compared to Mailchimp and AWeber.
Constant Contact is also more expensive than MailChimp and AWeber for a number of standard features. An account with automations (standard with any paid package at Mailchimp and AWeber) starts at $45 per month. Otherwise, Constant Contact’s feature set is on par with MailChimp and AWeber.Big Email
Beyond the basic tier, you get the behemoth tier. These are your powerhouse email marketing platforms that do a lot more than just send emails.
The behemoth tier include options like Infusionsoft and Hubspot. Both options are very expensive and very unnecessary for most law firms. Using Infusionsoft or Hubspot is like killing a mosquito with a hand grenade.
These platforms are very sophisticated and integrate fully with your CRM system and website. This is great if you have use for the data they can provide, if you have a business development team, and if you have a comprehensive online marketing strategy with many different components. For many and solo and small-firm lawyers, that is unlikely.Infusionsoft
Infusionsoft is still popular with a certain subset of lawyers. Often, these lawyers seem to have been referred to Infusionsoft by lawyer marketing consultants.
Infusionsoft integrates with your website, and it is basically your CRM. Infusionsoft knows where your email contacts have been on your website. You can create “triggers” so that if a visitor to your site goes to your Contact Us page and does not reach out, you can automatically send them an email to give you a call and make a note in your CRM to reach out to them.
It is very powerful software. If you have a serious advertising and marketing budget—I mean spending like $10,000+ per month serious—it can help you convert potential clients into paying clients.
The drawback to Infusionsoft is its massive learning curve and numerous superfluous features. It bears repeating: this is overkill for most solo and small-firm lawyers.
Infusionsoft is also wicked expensive for email software. It starts at $199 per month for 2,500 contacts. There is also a required one-time $1,500 onboarding fee. Infusionsoft is so complex (and unintuitive) you need a consultant to teach you how to use it.Hubspot
With Hubspot, you are not just paying for an email platform, you are paying for a high-end business management.
Beyond sending emails, it provides SEO and blogging recommendations, social media monitoring, calls-to-action, landing page help, lead management, Salesforce integration, and calendaring.
Hubspot, like Infusionsoft, also has a steep learning curve and is probably unnecessary for your needs.
If you are interested, however, you can pay $200-$2,400 per month. Plus the onboarding cost of $600-$5,000, based on your tier.
But if you are just looking to be able to easily manage your list and send emails, this is not the platform for you.Do Your Research
Picking the right email platform for your firm is going to take a bit of research, and it is highly unlikely you will need the hugeness of Hubspot or Infusionsoft. Once you pick an email platform that is right for you, create your (properly segmented) lists and start brainstorming your first campaign.
Featured image: “Email marketing on blackboard. Email marketing handwritten on framed blackboard” from Shutterstock.
From personal experience, MailChimp’s customer service leaves a bit to be desired (zero phone support and long back-and-forths with their support team via email). ↩
Email Marketing Software Buyers’ Guide for Lawyers was originally published on Lawyerist.com.
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from seventy recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
BC Injury Law and ICBC Claims Blog
$45,000 Non-Pecuniary Assessment for Persistent but Not Disabling Soft Tissue Injuries
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for persistent moderate soft tissue injuries. In today’s case (Matharu v. Gill) the Plaintiff was involved in a collision which the Defendant was found liable for. She suffered moderate soft tissue injuries to her neck and shoulder which persisted to the time of trial and were expected to linger for sometime after although the ultimate prognosis was generally favorable. …
Expanded Academic Index (Tip of the Week)
Today I’m thinking about theology – not a typical concern in my job as a reference librarian in a legal library, but a friend quoted paleontologist and Jesuit priest Pierre Teilhard de Chardin to me on how spirit is infused into material life, and I feel like exploring that a bit. I don’t imagine that Quicklaw or the Canadian Encyclopedic Digest will have much on this question (although no doubt some witty legal scholar can prove me wrong), so I will need to look elsewhere. …
Off the Shelf
Quebec and Federal Content Enhancements to CanLII
CanLII has recently announced some significant content enhancements to their offerings of federal Quebec materials – and an exciting development for freely available legal information. In collaboration with the Quebec Centre d’accès à l’information juridique (CAIJ), the following substantial caselaw offerings have been added to the Quebec databases: …
Alcohol & Advocacy
Top Ten Liquor Laws from 1921
On October 1, 1917 British Columbia “went dry”, giving way to the pressure of the temperance movement sweeping the nation. Less than four years later the ineffective and corrupt Prohibition regime came to an end on June 15, 1921 when an Act to provide for Government Control and Sale of Alcoholic Liquors came into force, known by its short title the Government Liquor Act. …
Environmental Law and Litigation
Priestly Demolition fined $70,000 for Spill and Failure to Report
The defendant, Priestly Demolition Inc. caused chlorine gas to be discharged into the environment when an employee operating a magnetic grapple attempted to move old pressurized gas cylinders. During the move, a valve snapped releasing the gas. The employee experienced a burning sensation and was taken to the hospital where he received treatment and stayed overnight. The employee has suffered no known long-term harm to his health. …
*Randomness here is created by Random.org and its list randomizing function.
The United Nations Commission on International Trade Law’s Working Group III on Online Dispute Resolution (ODR) met for one last time between February 29th to March 4th 2016 to put the finishing touches to UNCITRAL’s Technical Notes on Dispute Resolution, and, in the same breath, complete the mandate – or should we say revised mandate – it had been given by the commission.
As regular readers will remember, the working group was originally given a very broad mandate back in 2010. As stated in document A/CN.9/WG.III/WP.105:
“After discussion, the Commission established a working group to undertake work in the field of online dispute resolution relating to cross-border electronic commerce transactions, including business-to-business (B2B) and business-toconsumer (B2C) transactions. At that session, the Commission also agreed that the form of the legal standards to be prepared should be decided after further discussion of the topic. As to the scope of work, the Commission agreed that, although it would be feasible to develop a generic set of rules applicable to both B2B and B2C transactions, the Working Group should have the discretion to suggest different approaches, if necessary.”
For the next five years, working group members therefore worked on the drafting of procedural rules for ODR, an experiment that ended abruptly when, in February of 2015, both the US and the European Union suggested that work be abandoned since no consensus could be reached as to the content of said rules, despite the relentless efforts put forth by the secretariat and the chair to foster some sort of agreement. Some observers, including the undersigned, believed this to be the end of UNCITRAL’s foray into online dispute resolution… Yet we were wrong.
Rather than to throw in the towel, UNCITRAL decided to redefine the Working Group’s mandate to “elaborating a non-binding descriptive document reflecting elements of an ODR process, on which elements the Working Group had previously reached consensus, excluding the question of the nature of the final stage of the ODR process”. The Commission also put an expiration date on the Group’s work, stating that it had to be done by the end of its 33rd session (i.e., March 4th, 2016).
This short summary of events helps us understand why we went from ambitious procedural rules to simple technical notes or, to paraphrase T.S. Eliot’s “The Hollow Men”, how ODR will be making its way into UNCITRAL documents, not with a bang but a whimper. However, this is not necessarily a bad thing. In fact, with the evolving view of what ODR is and could be, UNCITRAL’s draft procedural rules ran the risk of becoming out-dated before their eventual adoption. Even the Technical Notes, in our opinion, reflect a view of ODR that corresponds more with the practices of first generation platforms such as ECODIR, and less with more recent endeavours that rely on artificial intelligence, knowledge management systems and computational justice.
Therefore, the content of the Technical Notes doesn’t really matter as much as their existence. In this age of sound bites and Twitter, all that is truly important is that UNCITRAL acknowledges the value of ODR sufficiently to address the topic. When, as is expected, the Commission adopts the final version of the Technical Notes during its 49th session, the headlines will simply read “UNCITRAL Adopts Notes on ODR”, not “After five year of work on ODR, UNCITRAL Working Group III has produced a non-binding laconic document that gives a somewhat antiquated view of ODR practices that will have little to no impact on current or future ODR providers but that has the merit of incorporating ODR into the UNCITRAL lexicon”.
As paragraph 3 of the notes states: “The purpose of the Technical Notes is to foster the development of ODR and to assist ODR administrators, ODR platforms, neutrals, and the parties to ODR proceedings”. While we remain sceptical that the notes will truly “assist ODR administrators, ODR platforms, neutrals, and the parties to ODR proceedings”, there is no doubt that an UNCITRAL endorsement of ODR will help foster is development or, at the very least, won’t hinder it.
So what exactly is in these notes? Supposing that the final draft as concluded on March 3rd, 2015, is adopted “as is” by the Commission, the notes should consist of twelve sections containing about 50 dispositions addressing matters such as the ODR process (negotiation, facilitated settlement and an option for a third and final stage such as arbitration or adjudication), the role of neutrals, governance, language of proceedings, etc. They also put forth values that an ODR service provider should strive towards such as independence, transparency, and offering a secure environment.
Obviously, these concepts are not revolutionary, nor is the online ADR (alternative dispute resolution) process that the notes present as their sole example of ODR. We should point out that the notes mention the fact that they do not offer an exhaustive or exclusive list of possible ODR mechanisms, but they clearly present a very classic view of what ODR is and can be. But, again, considering that, a year ago, we were writing on this very blog that we expected the Working Group’s work to come to a halt, the simple fact that this document exists is, at the very least, better than nothing. Furthermore, considering the time and effort invested in this process by delegates, observers, but mostly by the UNCITRAL secretariat members that took to drafting a document that could satisfy diametrically opposed views, it would have been very disappointing for this endeavour to end without said document to be made available to the public in one form or another. In this sense, the Technical Notes can be seen as a success.
The end of the Working Group’s mandate also marks the end of a journey for our column, as we’ve been writing exclusively on ODR for the past four years. Although we’re not saying that we shall never revisit the topic, we will, in the upcoming months, refocus our attention on other aspects of cyberjustice, a field of research that spans much further that the sole study of ODR platforms and mechanisms.
Let’s say it’s a Friday night, on April 20, 2007.
At the end of a long day, and the end of a long week, and you come home from work to smoke a joint with your spouse at home on your front porch. You don’t go out on the town, you don’t drive a car, you just stay home for the evening.
But because you smoked it on your porch your neighbor decides to call the police. They come over, and you get into a bit of a legal jam. Not any big deal, mind you, but it’s on your record.
Nine years later, you haven’t smoked marijuana even once. Some friends drag you out on a Wednesday night, April 20, 2016, and at the party you are passed a joint. Puff, puff, pass. Puff, puff, pass. You puff. You pass.
Then there’s the addict with a previous conviction, arrested on a second offence. He manages to kick the habit entirely by going to a rehabilitation centre, and looks forward to embarking on a productive and healthy life. Rather than a short sentence to remind him of his wrongdoing, the judge would have no choice by to impose a year-long conviction.
These types of hypothetical fact scenarios, adopted by the Chief Justice from the trial judge, was described in R. v. Lloyd at paras 43-44 as ones which would “shock” most Canadians. Yet, that has been the law in Canada since the introduction of the Truth in Sentencing Act in 2009, which removed judicial discretion from certain drug offences and imposed mandatory minimum sentences.
The use of mandatory minimums has been largely decried by the legal profession, and received significant critique by the Court in R. v. Nur. This week’s decision in Lloyd effectively put an end to the criminal law reforms by the previous Federal administration which required jail time for these offences.
A number of courts have raised constitutional issues around these sentencing provisions. Here, the Court found that these trial level courts did have the power to determine their constitutionality. Although in this case the trial judge did not find the mandatory minimum to be grossly disproportionate to the accused, a finding the Court upheld as deserving deference, the Court was forced to contemplate reasonably foreseeable situations where it would be grossly disproportionate.
The Chief Justice stated at para 35,
…the reality is this: mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.
The requirement of the Act for one year imprisonment violated the s. 12 guarantee against cruel and unusual punishment, and this could not be justified under s. 1.
The Court does not easily come to a finding of cruel and unusual punishment. A grossly disproportionate sentence is not just one which is excessive, but one which is “so excessive as to outrage standards of decency” and “abhorrent or intolerable” [para 42]. It is because the Truth in Sentencing Act is so broadly applied that encompasses a wide range of conduct and circumstances and could be grossly disproportionate.
Although the constitutional objective in mandatory minimums is an important objective, fighting the distribution of illegal drugs, and rationally connected to trafficking, it was not a minimal impairment and lacked proportionality. Although the Court in Oakes dealt with a similar constitutional issue in 1986, there were no indication that less harmful means could achieve the same goal here.
Citing Julian V. Roberts’ 2005 study, Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models, the Court qualified that mandatory minimums could be constitutional if they contained a residual judicial discretion clause to deal with outlying cases, an approach often used in other countries.
The Court wasn’t finished with Truth in Sentencing Act with just Lloyd. On the same day they released R. v. Safarzadeh-Markhali, dealing with credits for pre-sentence custody, or Time In Custody (TIC). The Truth in Sentencing Act severely constrained this practice under s. 719 of the Criminal Code by limiting it to a maximum of 1.5 only “if the circumstances justify it.”
Judges across Canada periodically provided higher credits before this, largely given the circumstances and protracted waiting times in some jails. Pre-trial custody has also been addressed recently by the Court in R. v. Summers, where the Court found that the lost opportunity from earned remission or parole could be used to enhance credit provided.
The court found these provisions to violate s. 7 of the Charter because it required offenders to serve more time in prison than they would otherwise, which is disproportionate. It is overbroad in that catches individuals in ways which have nothing to do with public safety and security, which would not conform with the principles of fundamental justice. The Court referred to para 105 of Canada v. Bedford, and stated,
 …the denial of any enhanced credit for pre-sentence custody to persons to whom bail is denied primarily because of a prior conviction — violates s. 7 of the Charter for another reason: it is overbroad. Laws that curtail liberty in a way that is arbitrary, overbroad or grossly disproportionate do not conform to the principles of fundamental justice…
They made specific reference to the Justice Minister’s statements in the House to illustrate how the provisions could not be saved by s. 1,
 Similarly, the challenged provision, by its words and how it operates, is not directed at preventing offenders’ manipulation of the system. The Minister expressed concern that under the old system, offenders were prolonging pre-sentence custody to take advantage of enhanced credit that would shorten their total time in custody. While this goal is reflected in the one-and-a-half-for-one cap on enhanced credit, which removes the incentive to extend the period of pre-sentence custody, it is not related to the challenged provision.
The effect of these two decisions is that the Court has largely undone the “tough on crime” initiatives undertaken by the previous government. Given the enormous opposition from the bar to these initiatives, it’s unlikely that a softer form will be reintroduced by the current government.
This does not mean that our legal system is lenient towards criminals, or does not take crime seriously. What these decisions highlight is that even when we deal with the criminally accused the constitution is an important consideration – perhaps the most important one.
The Ars guide to building a Linux router from scratch | Ars Technica http://arstechnica.com/gadgets/2016/04/the-ars-guide-to-building-a-linux-router-from-scratch/
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.
PÉNAL (DROIT) : L’accusé est acquitté sous tous les chefs d’accusation liés à la possession de différents appareils de radio et d’un balayeur d’ondes; en outre, la poursuite n’a pas démontré qu’il avait contrevenu à l’article 191 C.Cr., qui fait référence à l’interception clandestine de communications privées.
Intitulé : R. c. Lafond, 2016 QCCQ 1281
Juridiction : Cour du Québec, Chambre criminelle et pénale (C.Q.), Longueuil, 505-01-108076-122
Décision de : Juge Stéphane Godri
Date : 8 mars 2016
PÉNAL (DROIT) — infraction — infractions contre les biens et la propriété — vol — possession d’un dispositif permettant l’utilisation non autorisée d’un ordinateur ou la commission d’un méfait — possession d’un dispositif pour l’utilisation d’installations de télécommunication ou l’obtention de services de télécommunication — radios portatives de type émetteur-récepteur — balayeur d’ondes — interprétation des articles 342.2 C.Cr. et 327 C.Cr. — élément de l’infraction.
PÉNAL (DROIT) — infraction — infractions contre les biens et la propriété — divers — interception de communications privées — possession d’un dispositif électromagnétique, acoustique, mécanique ou autre — interprétation de l’article 191 C.Cr. — communication numérique — élément de l’infraction — connaissance.
Accusations en vertu des articles 191 (1), 342.2 (1) et 327 (1) du Code criminel (C.Cr.). Acquittements.
Des agents du service de police ont exécuté un mandat de perquisition au domicile de l’accusé et y ont saisi plusieurs appareils de radio portatifs de type émetteur-récepteur, un balayeur d’ondes ainsi que plusieurs documents reliés à l’exploitation et à l’utilisation de ces appareils. Les trois chefs d’accusation portés contre lui sont liés à la possession de ces appareils. L’article 191 C.Cr. prévoit qu’est coupable d’un acte criminel quiconque possède un dispositif électromagnétique, acoustique, mécanique ou autre ou encore un élément ou une pièce de celui-ci en «sachant que leur conception les rend principalement utiles à l’interception clandestine de communications privées». Les appareils saisis sont un appareil émetteur-récepteur de type numérique LTR, plusieurs radios émettrices-réceptrices de type analogiques et un balayeur d’ondes de type analogique qui a subi une modification particulière par l’ajout d’un circuit intégré de fabrication artisanale. Aucun de ces appareils ne permet de décoder des communications cryptées. Les radios ont été programmées avec différentes fréquences attribuées notamment à des services d’urgence, dont des services ambulanciers et policiers ainsi que certaines compagnies de remorquage. L’ensemble des appareils ayant des fréquences reliées aux services d’urgence programmées à l’intérieur de ceux-ci nécessitait une licence pour leur exploitation.
Le premier chef d’accusation fondé sur l’article 191 (1) C.Cr. fait référence à l’interception clandestine de communications privées. Or, c’est à tort que la poursuite inclut les communications de types numériques parmi celles-ci et prétend qu’une personne qui détecte une telle communication numérique au moyen d’une radio ou d’un balayeur d’ondes analogiques intercepte une communication au sens des articles 183 et 191 C.Cr. Par ailleurs, même en appliquant l’interprétation la plus large possible de la définition d’«intercepter» prévue à l’article 183, le tribunal ne peut en arriver à la conclusion que cette définition comprend la connaissance de la simple existence de la communication ainsi que le suggère la poursuite. En outre, il n’est pas raisonnable de prétendre que les policiers avaient une attente raisonnable en matière de vie privée au moment des communications, et ce, même lors de communications numériques. Par conséquent, l’accusé n’a pas contrevenu à l’article 191 C.Cr. en ce qui a trait à la possession des différentes radios trouvées à son domicile. Il en va de même quant au balayeur d’ondes, mais pour d’autres motifs. La capacité du balayeur d’ondes d’intercepter des communications de type téléavertisseur et de convertir ces données à l’aide d’un ordinateur a clairement été établie en preuve. Par contre, la poursuite n’a pas démontré la connaissance de l’accusé de cette possibilité du balayeur d’ondes. Une lecture attentive de l’article 191 fait ressortir la nécessité de prouver que l’accusé savait que la conception des appareils les rendait principalement utiles à l’interception clandestine de communications privées. Par ailleurs, puisque les radios n’ont pas été modifiées, on ne peut prétendre à une «conception les rendant principalement utiles à» au sens de l’article 191. Le fait qu’une personne puisse, à l’aide de ces appareils, soit par hasard ou même intentionnellement, écouter des conversations à l’insu des interlocuteurs visés ne fait pas en sorte que leur conception les rende principalement utiles à cet effet. Il s’agit d’une possibilité découlant de leur conception et de la technologie plutôt que de la raison d’être de ces appareils. Le fait de programmer une fréquence connue d’un service policier ou autre dans une radio émettrice-réceptrice ne fait pas en sorte que l’on puisse conclure que la conception de l’appareil le rend principalement utile à intercepter de façon clandestine d’autres communications. Les mêmes conclusions doivent s’appliquer au deuxième chef d’accusation porté en vertu de l’article 342.2 (1) C.Cr., qui prévoit également que le dispositif doit être «conçu ou adapté principalement» pour commettre une infraction prévue aux articles 342.1 ou 430 C.Cr. Enfin, le troisième chef d’accusation renvoie à l’article 327 (1), qui prévoit également que le dispositif doit être «conçu ou adapté principalement». Rien dans la preuve ne permet de conclure que les appareils trouvés chez l’accusé ont été modifiés dans le but de permettre une utilisation sans acquittement des frais, et ce, même s’il est vrai que l’accusé pouvait syntoniser des ondes pour lesquelles il ne détenait pas une licence. La jurisprudence traitant de l’article 327 suggère que cette disposition vise principalement des appareils susceptibles de contourner des mesures de brouillage ou de cryptage qui garantissent qu’un utilisateur acquittera les sommes prévues pour leur utilisation. En l’espèce, aucune mesure de contrôle similaire n’existe. Il est plutôt de la responsabilité des policiers de s’adapter à la réalité des moyens technologiques légalement disponibles aujourd’hui et d’utiliser les moyens appropriés afin de protéger toute conversation qu’ils estiment suffisamment délicate pour le faire.
Le texte intégral de la décision est disponible ici
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Jupyter Notebook 4.2 https://blog.jupyter.org/2016/04/15/notebook-4-2/
Attorneys have a complicated relationship with cloud storage. On the one hand, storing everything in the cloud is fantastically convenient and really has become mission critical for attorneys to access information on the go. On the other hand, there has been a steady drip of concerns about the NSA being able to get to cloud-based storage and the possibility always exists that your cloud storage could be hacked. Add another concern to your list of cloud worries: if you are using Office 365 and storing your email and other data in Microsoft’s cloud, the government could be looking at your data and Microsoft can’t even tell you about it.
Microsoft alleges that over the last 18 months, federal courts have issued almost 2,600 gag orders, barring the company from telling its customers that their data is being searched by the government. That’s about 5 such orders per day. Microsoft also alleges that most of these orders, about sixty eight percent, or over 1750, contain no end date, committing the company to an indefinite silence.
Microsoft has sued the government, saying that users have a right to know that the government is searching their data and Microsoft has a right to tell them. The Justice Department is reviewing the lawsuit. Given the perniciousness with which they approached the whole Apple versus FBI issue, it doesn’t seem likely that they will see things Microsoft’s way.
Featured image: “Data Protection” from Shutterstock.
Microsoft Sues To Stop The Government From Secretly Looking At Your Data was originally published on Lawyerist.com.
♫ Lend me your ears and I’ll sing you a song
And I’ll try not to sing out of key
Oh I get by with a little help from my friends…♫
On Thursday April 14 between 1-3 pm pacific time, a world-first happened. Chief Judge Crabtree of the British Columbia Provincial Court hosted a Twitter Town Hall. Ian Mulgrew of the Vancouver Sun wrote about it: “Chief Judge hashes issues out on Twitter for first time.” The Canadian Bar Association – BC Branch storified it and you can read the tweeted questions and answers here.
With a bit of humour (allusions to the TV Show Night Court were made) along with quoting music lyrics, the Chief Judge did something that no other judge or court has done: he answered questions from lawyers, law students and the public on social media in real time.
There are several remarkable features about this event. One is the openness that it symbolized along with the importance of being transparent to the public. The second is that a social media platform such as Twitter (with its 140 character limit) could be used quite successfully by the Judge to engage in a lively and responsive dialogue. As Colin LaChance noted in his Slaw post in advance of the Twitter Town Hall, the Court via social media is delivering “useful and often fascinating content in a very human voice.” The third is that an institution such as the Provincial Court has indicated that it is open to change and moving forward in new and interesting ways.
Personally I believe that these innovations help make the Court, law and legal resolution a bit less imposing and formidable. The Chief Judge, while being totally professional, showed that he is also approachable and real. This Town Hall has helped put a real human face on the Court . That is the power of social media and I for one am proud that it happened here first. I am looking forward to further innovations from the Court as it seeks ways to improve access to justice. As Chief Judge Crabtree stated, the Court will get by with a little help from its friends.