Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from sixty recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
Canadian Securities Law
Cybersecurity issues: what directors need to consider
As we previously noted, many of our readers will be interested in following the new series of posts on directors’ duties on our Canadian M&A Law blog. The second installment in the series, by Tania Djerrahian and Vanessa Coiteux, discusses some of the key issues that directors need to focus on in the rapidly developing area of cybersecurity. …
BC Injury Law and ICBC Claims Blog
$75,000 Non-Pecuniary Assessment for Chronic Mechanical Neck Pain
Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, assessing damages for a chronic neck injury caused by a motor vehicle collision. In today’s case (Renaerts v. Renaerts) the 24 year old Plaintiff was injured as a passenger in a 2009 collision. …
Courriel Express. Après-midi d’étude interdisciplinaire [Vidéos]
Dans le cadre du projet LCCJTI.ca de la Chaire en droit de la sécurité et des affaires électroniques, Vincent Gautrais et Marie Demoulin (professeure à l’ÉBSI) organisaient le 7 mai dernier une après-midi d’étude interdisciplinaire autour du courriel électronique entre droit et sciences de l’information intitulée » Courriel Express « . …
Slater Vecchio Connected
Open Windows are Killing Children
According to The Province, six BC children fell from unsafe windows and balconies during the past week. Some of the six children are suffering with serious brain trauma and broken limbs according to BC Children’s Hospital. A team of BC doctors and paramedics are teaming up to prevent child falls by raising awareness and issuing warnings. With more dry weather in the forecast, parents are jeopardizing the lives of their children by keeping windows and balcony doors open. …
Off the Shelf
The Jarvis-Irving Collection
In several separate purchases over the past year, the Osgoode Library has managed to acquire a collection of law books, the Jarvis-Irving Collection, comprising 32 titles (67 volumes) that belonged to Samuel Peters Jarvis (1792-1857), a lawyer and prominent Toronto citizen and member of the Family Compact in Upper Canada. …
*Randomness here is created by Random.org and its list randomizing function.
Mandatory minimums. Mega prisons. “Tough” on crime.
These have been the hallmarks of the Federal government’s reform of the criminal justice system, but the policies have been more politically motivated than good policy or social science evidence. Canada’s crime rate has been the lowest since 1972, and the literature on law enforcement suggests these measures will actually make things worse.
The mandatory minimum provisions and removal of credit for time has already been challenged successfully in court. Courts in B.C., Nova Scotia, Ontario, and Northwest Territories have all found these provisions as unconstitutional, culminating in the Supreme Court’s decision in R. v. Nur earlier this year.
Chief Justice McLachlin rejected the Crown submission in that case that their ability to proceed summarily in hybrid offences with mandatory minimums vitiates the grossly disproportionate impact of these penalties,
 Sentencing is inherently a judicial function. It is the courts that are directed by Parliament to impose a mandatory minimum term of imprisonment, and it is the duty of the courts to scrutinize the constitutionality of the provision.
The Crown’s submission is in effect an invitation to delegate the courts’ constitutional obligation to the prosecutors employed by the state, leaving the threat of a grossly disproportionate sentence hanging over an accused’s head.
At para 91, she went as far as suggesting that these measures were bad laws that even if fixed on a case-by-case basis they would not dispense of the role and responsibility of Parliament.
The role of Parliament is to create and enact constitutionally valid laws. Anyone would get that wrong, sometimes. The responsibility of Parliament is to enact laws in the public interest, and not for blatant partisan goals.
In addition to mandatory minimums, the Federal has also intends to end automatic early release. This will likely cost over $200 million a year more, and add 2,500 inmates to the prison system annually.
Sean Fine of The Globe stated,
…Canada’s federal prison population… is now at a near-record 14,885, up nearly seven per cent in five years, even as crime rates have steadily fallen. (The record high of 15,276 was reached in July, 2013, and matched in March, 2014.) As prisons have got more crowded, they have become more violent, with greater reliance on controls such as pepper spray or solitary confinement, and with rehabilitation programs stretched thin. The change would also affect aboriginal prisoners the most, as they are more likely to be in jail for long terms, to have committed violent crimes, and to gain their freedom by statutory release rather than parole.
The obvious solution in this mindset for overcrowded and violent prisons are larger, better staffed mega prisons. A proposal for a 2,200 cell facility in Kingston would cost $500 million to build and cover 1.6 million square feet, with 650 prison guards.
Part of the reason for these changes are the Americophile nature of the current federal government. The U.S. has the highest incarceration rate in the world, holding a quarter of all the prisoners on the entire planet. This trend started in 1973 with Nixon’s War on Drugs, which led to mandatory minimums and an astonishing seven-fold increase in incarcerations.
The end result is that $260 billion is spent on criminal justice in the U.S. every year, more than a quarter of the national deficit. A small price to pay to keep a country safe – if money is spent wisely.
A popularly held conclusion that these measures worked is based on the drop in crime rates starting in the early 1990s. Violent crime is down by 51 per cent since 1991, and property crime has declined by 43 per cent.
This assumption has been demonstrated to be largely overstated, and even fallacious, in new study by the Brennan Centre for Justice at New York University Law School. Dr. Oliver Roeder, Lauren-Brooke Eisen, and Julia Bowling looked at a number of economic factors, including unemployment rates, inflation, consumer confidence, growth in income.
They also looked at changes in the social environment such as the aging population, decreasing alcohol and crack use, legalization of abortion, and even the decreased use of lead in gasoline. Apparently early exposure to lead during childhood development leads to a higher propensity to commit crimes, though the authors couldn’t collect enough data to make a definitive conclusion on this factor.
After sifting through all of these factors, they found that most of this decline could be attributed to the fact that baby boomers are getting older. An older population is less likely to commit crimes. The tough on crime measures had neglible effects on the crime rate overall. What does effect crime rates is better police work and more funding for law enforcement,
Public and political pressure to effectively fight crime and improve public safety has been used to justify mass incarceration despite the economic, human, and moral toll. However, as this report finds, during the past two decades the approach of using incarceration as a one-size fits all punishment for crime has passed the point of diminishing returns to actually reduce crime.
This report demonstrates that when other variables are controlled for, increasing incarceration had a minimal effect on reducing property crime in the 1990s and no effect on violent crime. In the 2000s, increased incarceration had no effect on violent crime and accounted for less than one-hundredth of the decade’s property crime drop.
This report also finds that one police management technique, CompStat, had a modest effect on reducing crime.
The criminal justice policies of the last half century have played a crucial role in feeding the explosion in incarceration as a primary method to combat crime. However, the findings in this report call lawmakers to seize the current moment for change.
The Economist, calling for change, puts in perspective the challenge of rehabilitating this aging, incarcerated population, back into society,
Crime is largely a young man’s game, but many prisoners now are old: the number over the age of 50 has more than tripled since 1994. Many of these people are no longer dangerous, but locking up the elderly—and treating their ailments—costs taxpayers a fortune, typically $68,000 per inmate each year. The longer prisoners are inside, the harder it is for them to reintegrate into society. And mass incarceration has contributed to the breakdown of working-class families, especially black ones. Among African-Americans aged 25-54, there are only 83 free men for every 100 women, which is one reason why so many black mothers raise children alone. Men behind bars cannot support their offspring, and when they are released, many states make it preposterously hard for them to find jobs.
The constitutionality of these mega prisons may be questionable as well, though the damage will likely be already done if they are challenged. A 2011 investigation by Amnesty International found conditions in Arizona highest security maximum custody facilities potentially violated Article 10 the International Covenant on Civil and Political Rights (ICCPR), which states that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” The American experience with mega prisons is not one which Canada should seek to emulate.
As we celebrate National Aboriginal Day today, it’s worth emphasizing the disproportionate impact of these changes on First Nations in Canada. Jonathan Rudin explains the culture clash theory for the higher incarceration rates in Aboriginal Peoples and the Criminal Justice System,
This theory starts from the undeniably correct thesis that Aboriginal concepts of justice and Western concepts of justice are very different. The theory then goes on to conclude that when Aboriginal people are required to fit into a system that does not recognize their values, overrepresentation occurs…
In Aboriginal society there is a great emphasis on taking responsibility for one’s actions. In the criminal justice system taking responsibility means pleading guilty. However, being responsible for an event occurring is not necessarily the same as being legally guilty of the offence—that distinction may be lost on Aboriginal people who thus plead to offences for which they may have valid defences. The idea of guilt itself is one that is foreign to many Aboriginal peoples. Aboriginal languages cannot translate words like “guilty” or “innocent” as they have no analogues. Culture clash may also come about as a result of non-Aboriginal people not understanding the cultural norms in an Aboriginal community…
Justice Murray Sinclair, author of the Truth and Reconciliation Report, received an honourary doctorate last Friday at Osgoode Hall, where I was receiving my LLM. I had the opportunity to discuss in private some of his early life with him , and he shared the challenges of moving from his family and territory to a larger town for high school, where everything was about their way of life, their living, and the disconnect he felt as a result.
Canadians should rightly feel a disconnect from the American model of criminal justice.
Canada doesn’t have a young baby boomer population, or a war on drugs. We don’t have the crime rates that America does, either now or in the 70s. We don’t need to repeat the mistakes of other countries to discover a generation from now that it was all wasted money. It’s not our way of doing things.
Unlike unconsitutional sentencing regimes, the tide towards mega prisons and emphasizing incarceration instead of rehabilitation, can only be reined in on time by the public. The money spent on mega prisons is better invested in better trained and paid police officers, and strategic financing of law enforcement technology. Lawyers, who are best informed of the justice system, have a responsibility to ensure the public is aware of this deep-seated misunderstanding of how it actually works.
That is all. 07:49:06, 2015-06-20
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.
RECOURS COLLECTIF: Le tribunal refuse d’ordonner le paiement de dommages moraux dans l’un des deux recours collectifs intentés contre les compagnies canadiennes de cigarettes, car la preuve ne permet pas d’établir d’une façon suffisamment exacte la somme totale des réclamations des membres (art. 1031 C.P.C.).
Intitulé: Létourneau c. JTI-MacDonald Corp., 2015 QCCS 2382
Juridiction: Cour supérieure (C.S.), Montréal, 500-06-000076-980 et 500-06-000070-983
Décision de: Juge Brian Riordan
Date: 27 mai 2015 (jugement rectifié le 8 juin 2015)
RECOURS COLLECTIF — jugement au fond — fumeurs — recours contre les compagnies de tabac — risques et dangers de la cigarette — dépendance à la nicotine — maladie — responsabilité extracontractuelle — préjudice à autrui — obligation de renseignement — devoir d’information — contravention à la Loi sur la protection du consommateur — atteinte aux droits fondamentaux — lien de causalité — partage de responsabilité — faute contributoire de la victime — prescription extinctive — atteinte illicite et intentionnelle — solidarité — recouvrement collectif — dommage non pécuniaire — dommages punitifs — exécution provisoire.
RESPONSABILITÉ — responsabilité du fabricant — cigarette — dépendance à la nicotine — maladie — défaut de sécurité du bien — obligation de renseignement — risques et dangers de la cigarette — connaissance du fabricant — connaissance de la victime — lien de causalité — partage de responsabilité — faute contributoire de la victime — prescription extinctive — atteinte illicite et intentionnelle — solidarité — recouvrement collectif — dommage non pécuniaire — dommages punitifs — exécution provisoire.
RECOURS COLLECTIF — procédure — moyens préliminaires — moyen de non-recevabilité — prescription extinctive — amendement — description du groupe — absence d’une date butoir — suspension de procédures — application de l’article 2908 C.C.Q. — application de la Loi sur le recouvrement du coût des soins de santé et des dommages-intérêts liés au tabac — interprétation de «dommage continu» — absence d’acte dommageable continu.
PROTECTION DU CONSOMMATEUR — pratiques de commerce interdites — omission de divulguer un fait important — déclaration trompeuse — représentation fausse ou trompeuse — publicité — compagnie de tabac — risques et dangers de la cigarette — critère de l’impression générale — responsabilité extracontractuelle — application de l’article 272 de la Loi sur la protection du consommateur — dommage non pécuniaire — dommages punitifs — recours collectif.
DROITS ET LIBERTÉS — droits et libertés fondamentaux — intégrité de la personne — dépendance à la nicotine — maladie — fumeur — responsabilité extracontractuelle — cigarettiers — risques et dangers de la cigarette — obligation de renseignement — atteinte illicite et intentionnelle — solidarité — dommages punitifs — exécution provisoire — recours collectif.
DOMMAGE (ÉVALUATION) — dommage exemplaire ou dommage punitif — Charte des droits et libertés de la personne — Loi sur la protection du consommateur — omission de divulguer un fait important — déclaration trompeuse — représentation fausse ou trompeuse — publicité — compagnie de tabac — risques et dangers de la cigarette — dommage corporel — dépendance à la nicotine — maladie — fumeur — atteinte illicite et intentionnelle — exécution provisoire — recours collectif — recouvrement collectif.
DOMMAGE (ÉVALUATION) — dommage à la personne — dommages corporels — notions — perte non pécuniaire — perte de jouissance de la vie — dépendance à la nicotine — maladie — fumeur — responsabilité extracontractuelle — cigarettiers — risques et dangers de la cigarette — obligation de renseignement — atteinte illicite et intentionnelle — dommages punitifs — dommage non pécuniaire — solidarité — exécution provisoire — recours collectif — recouvrement collectif.
Recours collectifs en réclamation de dommages moraux et punitifs. Accueillis en partie.
Le 21 février 2005, les demandeurs, Blais et le Conseil québécois sur le tabac et la santé, ont été autorisés à intenter un recours collectif contre les compagnies canadiennes de cigarettes défenderesses au nom des personnes ayant eu un diagnostic de cancer du poumon ou de la gorge ou encore d’emphysème. Dans un second dossier, la demanderesse Létourneau a été autorisée à poursuivre ces compagnies au nom d’un groupe de personnes devenues dépendantes de la nicotine contenue dans les cigarettes fabriquées par ces dernières. Dans les deux dossiers, les demandeurs reprochent entre autres choses aux défenderesses d’avoir fabriqué un produit dangereux et nocif pour la santé, d’avoir omis d’informer le public des risques et des dangers associés à la consommation de la cigarette (ci-après, «leurs produits»), d’avoir contrevenu aux articles 219, 220 a) et 228 de la Loi sur la protection du consommateur, d’avoir conspiré pour maintenir un front commun visant à empêcher que les utilisateurs de leurs produits ne soient informés des dangers inhérents à leur consommation et d’avoir porté intentionnellement atteinte au droit à la vie, à la sécurité et à l’intégrité des membres du groupe. La réclamation, qui est sur une base collective, est limitée à des dommages moraux et punitifs.
Les défenderesses ont fabriqué, mis en marché et commercialisé un produit qui est dangereux et nocif pour la santé des consommateurs (paragr. 41-51). Toutefois, il n’a pas été démontré qu’elles ont sciemment mis sur le marché un produit qui crée une dépendance et qu’elles ont fait en sorte de ne pas utiliser les parties du tabac comportant un taux de nicotine tellement bas qu’il aurait pour effet de mettre fin à la dépendance d’une bonne partie des fumeurs (paragr. 143-201). Or, l’article 1473 du Code civil du Québec (C.C.Q.) énonce deux moyens de défense relativement au défaut de sécurité du bien (art. 1468 et ss. C.C.Q.): 1) la victime connaissait ou était en mesure de connaître le défaut du bien; ou 2) ce défaut ne pouvait être connu au moment où le bien a été fabriqué ou vendu. En l’espèce, les défenderesses ne peuvent invoquer ce dernier moyen de défense puisqu’elles connaissaient les risques et les dangers associés à l’utilisation de leurs produits durant la période couverte par les deux recours. Quant au public, ce n’est qu’en 1972 que la première mise en garde est apparue sur les paquets de cigarettes. Au fil du temps, les avertissements sont devenus de plus en plus explicites. Ainsi, le public savait ou aurait dû connaître les risques et les dangers de souffrir d’une maladie causée par le tabac à compter du 1er janvier 1980 (ci-après, «la date de connaissance»).
En ce qui concerne le dossier Létourneau, les avertissements portant sur la dépendance du tabac ne sont apparus que le 12 septembre 1994. Comme il a fallu environ 18 mois pour que le message produise un effet sur le public, la «date de connaissance» est fixée dans ce dossier au 1er mars 1996 (paragr. 52-142, 554-561 et 602-617). Même si la responsabilité des défenderesses a cessé à ces deux différentes dates quant au défaut de sécurité du bien, elles ont commis d’autres fautes qui, elles, se sont poursuivies durant toute la période couverte par les deux recours. Tout d’abord, elles ont omis d’informer le public des risques et des dangers de leurs produits. En outre, les défenderesses ont fait des déclarations publiques qu’elles savaient fausses et incomplètes concernant les risques et les dangers du tabagisme. De plus, pendant la période de 22 ans où aucune mise en garde n’était apposée sur les paquets de cigarettes, elles ont fait preuve de négligence en exposant sciemment les consommateurs aux dangers de leurs produits. En fait, l’industrie a adhéré à la politique du silence sur ces questions. En choisissant de ne pas informer les autorités de la santé publique ni le public directement de ce qu’elles savaient, les défenderesses ont fait passer le profit au détriment de la santé de leurs clients. Dans ces circonstances, elles ont manqué à l’obligation générale de ne pas causer de préjudice à autrui énoncé à l’article 1457 C.C.Q. (paragr. 202-378).
Par ailleurs, les défenderesses ont conspiré pour maintenir un front commun visant à empêcher que les utilisateurs de leurs produits ne soient informés des dangers inhérents à leur consommation. En poursuivant cette collusion pendant de nombreuses décennies, les défenderesses ont participé à un fait collectif fautif qui a causé un préjudice, engageant ainsi leur responsabilité solidaire en vertu de l’article 1480 C.C.Q. (paragr. 439-475). Par contre, il n’a pas été prouvé que les défenderesses ont mis sur pied des stratégies de marketing véhiculant de fausses informations sur les «caractéristiques» du bien vendu (paragr. 379-438). Tel qu’il est énoncé dans Richard c. Time Inc. (C.S. Can., 2012-02-28), 2012 CSC 8, SOQUIJ AZ-50834275, 2012EXP-836, J.E. 2012-469,  1 R.C.S. 265, la sévérité des sanctions prévues à l’article 272 de la Loi sur la protection du consommateur n’est pas un concept variable: la présomption irréfragable de préjudice peut s’appliquer à toutes les contraventions aux obligations imposées par la loi, y compris celles qui sont extracontractuelles. En l’espèce, les défenderesses ont contrevenu aux articles 219 et 228 de la loi en omettant d’informer le public quant aux risques et dangers inhérents à leurs produits et en faisant des représentations trompeuses concernant ceux-ci. En outre, ces dernières ont intentionnellement porté atteinte au droit à la vie, à la sécurité ainsi qu’à l’intégrité des membres du groupe (art. 1, 4 et 49 de la Charte des droits et libertés de la personne) (paragr. 489-544). Enfin, un lien de causalité a été prouvé entre les maladies ou la dépendance dont souffrent les membres et les fautes commises par les défenderesses. Par contre, eu égard aux fautes de nature à appliquer les principes énoncés aux articles 1477 et 1478 C.C.Q., les membres du dossier Blais, qui ont commencé à fumer après 1976 et qui ont continué après la «date de la connaissance», doivent supporter une part de responsabilité eu égard aux dommages subis, soit 20 %. Cette conclusion s’applique aussi aux membres du second groupe, qui ont commencé à fumer après 1992 et qui ont poursuivi cette activité après la «date de connaissance» fixée dans ce dossier. Ce partage de responsabilité est inapplicable aux dommages punitifs, car ils ne sont pas fixés en fonction du comportement de la victime (paragr. 647-817).
D’autre part, la description du groupe Blais a été amendée près de huit ans après l’autorisation de ce recours. Étant donné que la description du groupe dans le jugement d’autorisation ne contient pas de date butoir, la suspension de la prescription énoncée à l’article 2908 C.C.Q. s’applique aux membres qui n’étaient pas inclus au recours avant cet amendement (Marcotte c. Fédération des caisses Desjardins du Québec (C.S., 2009-06-11), 2009 QCCS 2743, SOQUIJ AZ-50561028). Les réclamations de ces derniers ne sont donc pas prescrites. Toutefois, un «dommage continu» est un préjudice qui, plutôt que de se manifester en une seule et même fois, se perpétue, en général parce que la faute de celui qui le cause est étalée dans le temps. Cette notion est inapplicable dans le dossier Blais, car les dommages subis par les membres se sont cristallisés au moment où ils ont reçu un diagnostic d’un cancer ou d’emphysème. Il en est de même dans le dossier Létourneau, car la description du groupe permet d’établir à quel moment les membres sont devenus dépendants à la nicotine contenue dans les cigarettes fabriquées par les défenderesses. De plus, le 5 mai 2014, la requête en jugement déclaratoire de ces dernières visant à faire déclarer inconstitutionnelle la Loi sur le recouvrement du coût des soins de santé et des dommages-intérêts liés au tabac a été rejetée. Étant donné que le processus d’appel de cette décision n’est toujours pas terminé, le tribunal doit appliquer les règles de prescription prévues dans cette loi.
Quant au quantum, dans le dossier Blais, les défenderesses sont condamnées solidairement à payer 6 858 864 000 $ à titre de dommages moraux, ce qui représente 15 500 000 000 $ avec les intérêts et l’indemnité additionnelle (art. 1480 et 1526 C.C.Q. et 22 et 23 de la Loi sur le recouvrement du coût des soins de santé et des dommages-intérêts liés au tabac). L’analyse des activités de la défenderesse ITL durant la période couverte par les recours démontre que sa conduite blâmable surpasse celle des autres défenderesses sur des facteurs similaires. Elle était la chef de file dans l’industrie sur de nombreux fronts, y compris ceux de cacher la vérité et de tromper le public. Entre les défenderesses, la responsabilité de chacune est répartie comme suit: 67 % pour ITL, 20 % pour Rothmans, Benson & Hedges inc. (RBH) et 13 % pour JTI-Macdonald Corp. (JTM). Par contre, dans le second dossier, le tribunal ne peut accorder de tels dommages, car la preuve ne permet pas d’établir d’une façon suffisamment exacte la somme totale des réclamations des membres (art. 1031 du Code de procédure civile) (paragr. 911-1016).
Pendant les 50 années couvrant les présents recours et les 17 années qui ont suivi, les défenderesses ont encaissé des milliards de dollars au détriment des poumons, de la gorge et de la santé en général de leurs clients. Leurs actions et leurs attitudes, qui sont particulièrement répréhensibles, doivent être dénoncées et punies. L’attribution de dommages punitifs vise également à décourager la répétition d’un comportement semblable, tant par les défenderesses que par la société en général. En l’espèce, ces dommages doivent être évalués en fonction du profit annuel avant impôts de chacune d’elle. Si l’on considère le comportement particulièrement inacceptable d’ITL durant la période couverte par les recours ainsi que celui de JTM, mais à un degré moindre, il y a lieu d’augmenter les sommes pour lesquelles ces défenderesses sont tenues responsables au-dessus du montant de base. Ainsi, les dommages punitifs, qui sont fixés à 1,31 milliard de dollars sont répartis comme suit entre elles: 725 millions par ITL, 460 millions par RBH et 125 millions par JTM. Comme ces sommes doivent être partagées entre les deux dossiers, le tribunal tient compte de l’effet beaucoup plus grand des fautes des défenderesses relativement au groupe Blais qu’au groupe Létourneau. Il attribue donc 90 % du total au premier groupe et 10 % au second. Cependant, en raison de l’importance des dommages moraux accordés dans le dossier Blais, la condamnation aux dommages punitifs doit être limitée dans ce dossier. En conséquence, chaque défenderesse doit payer une somme symbolique de 30 000 $, ce qui représente un dollar pour la mort de chaque Canadien causée par l’industrie du tabac chaque année. Dans ces circonstances, dans le dossier Létourneau, ITL est condamnée à payer 72 500 000 $ en dommages punitifs, RBH, à 46 000 000 $ et JTM, à 12 500 000 $. Puisque ce groupe totalise près d’un million de personnes, cette somme ne représente qu’environ 130 $ par membre. De plus, compte tenu du fait que le tribunal n’accorde pas de dommages moraux dans ce dossier, il n’y a pas lieu de procéder à la distribution d’une somme à chacun des membres au motif que cela serait impraticable ou trop onéreux (paragr. 1017-1112). Enfin, le tribunal ordonne l’exécution provisoire nonobstant appel en ce qui concerne le dépôt initial de un milliard de dollars en guise de dommages moraux, plus tous les dommages punitifs accordés. Les défenderesses devront déposer ces sommes en fiducie avec leurs procureurs respectifs dans les 60 jours suivant la date du présent jugement. La manière de les débourser sera fixée à l’occasion d’une audience subséquente.
Le texte intégral de la décision est disponible ici
For the next while the Friday Fillip will be a chapter in a serialized crime novel, interrupted occasionally by a reference you might like to follow up. Both this chapter of the book and the whole story up to this point can be had as PDF files. You may also subscribe to have chapters delivered to you by email.
The Morning Aftermath
The Jack Russell, whose full name was Vicar of Swimbridge and who answered, some of the time, to Vickie, would not stop barking. A surly Reg Bettleman hauled his sorry ass out of bed in one of the wee small hours — without bothering to put on his spectacles he couldn’t nail down which until later — to go and see what all the fuss was about, fully expecting to find Vickie in a tizzy because of some brazenly mating racoons.
She wouldn’t stop even when he took her line off the stake, reeled her in, and tried to calm her. Her attention, her agitation, was all aimed over at the Tremaine house. So that’s where Reg and Vickie went, he clumping in untied workboots, she thrusting on the line, rising into the air at times like a kite in following gusts.
It took him a good twenty minutes to persuade himself that he should enter and then that he should climb the stairs, even though his halloos were met with ominous silence. He knew it would happen one day. He would have to find her dead. Who else would do it? But he shied away from the task.
Not so Vickie.
And so it was that Reg called 911 in a lather while Vickie sat up like best of breed, all proud and unmoving on the floor by the bed, silent while Gladys Tremaine cried.
“SHE’S FINE.” AN exhausted ER nurse coming off night duty put on a reassuring face for the trio: Constable Leroy Stetch, Rangel, and Backton volunteer firefighterWilliam Otis. It was 6:35 according to the wall clock in the waiting room. The sun wouldn’t be up for another hour and more. Weariness abounded.
“She’s sleeping,” the nurse said. “The doctor gave her something just now. There was a lot of blood to clean up. None of it hers. She has a small tear in her right hand where the yarn bit into it at some point in her . . . struggle. And we were concerned about shock, though that seems to be past. We’ll keep her sedated for a bit yet, see if we can’t get her vitals to come just a bit closer to what we’d like.” The nurse wiped his forehead with the sleeve of his blue scrubs. “We’re not worried. That’s the best way I can put it.”
Stetch moved forward half a pace. “When can we talk to her, do you think?”
The nurse sighed. “You’ll have to ask the doctor. Doctor Wawrzyniec.” The name came out as vahf-ZHIN-yets.
“How are you spelling that?” asked Stetch.
Rangel went to sit down on one of the plastic chairs. A yellow one. She thought they were uncomfortable. She was wearing the first thing she’d put her hand to when she’d got the call from Jeannie Pastor. The pants were silk and she slid around on the seat. The firefighter followed her and hesitated a bit over the pink chair next to hers, before dropping into it. The metal rivets in his chinos clicked against the plastic. She took his hand. And then she let it go.
In a while Stetch left the nurse and came to tell them more about the genuine, period piece, plug-in IBM wall clock and about the very chairs under their butts, which, he’d already announced, with some wonder, were real Eames side chairs with the stacking base. Although he wasn’t a hundred percent certain because of something about the base. He stroked the purple one and talked about fiberglass.
“A SIX MILLIMETER steel Inox Prym. Single point. Sucker’s about a foot long.” The provincial cop held his hands wide apart as though he were a young man at a bar, boasting.
The other provincial cop lit a cigarette, sucked on it, and rubbed the back of his vest up and down against the nearby tree, going for an itch. He’d just arrived in the third wave of officials, authorities, support personnel, and media, all of whom now crowded a few safe rooms in the Tremaine house.
The two cops were in Tremaine’s back yard, standing in a patch where the sun, still hostage to the horizon, had managed to dry some of the dew on the grass. “That’s a size ten in the US system,” added the knowing cop.
“Manitoba maple,” said the other cop, turning to look briefly at his scratching post and needing to contribute some knowing to the exchange. “Weed tree. Stinks.”
“Oh yeah? I never noticed. So anyway, these puppies are pretty sharp-pointed. And the steel?”
“You have to cut ‘em down or they’ll just blow down in a good wind. Fall on your house.”
“Are you listening, asshole? Steel on that thing’s really shiny, highly polished and slipperier than hell. I guess so that the yarn gets on and off it easy. Gimme one of those,” he said, pointing to the late-comer’s cigarette.
“You knit, Stan?” said his buddy, flicking his ash downwind and then hauling out the pack, tapping out the head of a fresh one.
Stan took it, lit it, managing to talk all the while. “Go fuck yourself. Got it from an EMF chick. Piece of fucking luck for the old lady, let me tell you. He had her head under this plastic bag with his down jacket in it. So anyway, her arm comes up. Like a reflex, right? And, bingo, the point hits the sweet spot.” He tapped his belly just below the sternum and slightly to one side. They both smoked and frowned quietly for a moment, reflecting perhaps on life’s various sweet spots. “Asswipe had this cheap shirt. Anyway, gaping at the buttons. Too much of the good life. And the damn thing gets right at the skin, you know? Slips in easy as you like between strands of muscle. And then he falls and hammers it home.”
“Still,” said the other, wincing a little, “could’ve just, you know, put a hole in his gut. Takes a while to bleed out like that. Hurts bad. But takes a while.”
“Mmm,” his friend agreed, busy drawing on the cigarette. Exhaling in a cloud, caught and backlit by the low sunlight. “That’s the thing,” he said with smoke. “Hit the wha’d’you call it aorta. Thu . . . thra . . .”
“Thoracic,” the other man supplied. “Descending thoracic aorta.” They were square now.
“Never could say that word,” said the first man. “Boom. Blowout. He’s out of juice. Flat tire. Dead.”
A metallic screeching noise and the cop facing the back of the house said, “Oh, shit,” and dropped his cigarette in a hurry. The screen door shut with a bang and a small aftershock. “Fuck, it’s the DC.”
And indeed it was. “Gentlemen,” said the Deputy Commissioner, Making his way slowly down the rickety wooden steps. He came up to them in no particular hurry — it’s never wise to charge the rank and file — and pulled a silver cigarette case out of a pocket. The officers had their lighters out in a flash. “Something of a curious case, wouldn’t you agree?” said the DC, leaning forward slightly. Stan, the knit-knowing cop, lit him.
VINH HAD GONE SO cold that the air around him seemed to gel. Phang shivered and felt his skin turn to gooseflesh. There was a ghost standing beside Vinh, Phang was certain. Not the ghost of the dead Calabrian. That piece of excrescence wouldn’t be allowed within a thousand miles of this place, would spend eternity as a perpetually unsatisfied hungry ghost, was damned. No, this was someone powerful, someone who had been — was — even harder than Vinh, so hard he would squeeze the life out of the Buddha if he felt it would gain him even some small advantage. Alas, there was no shortage of such terrible ghosts in Vietnam, thanks to the decades of constant war.
“All of them,” said Vinh and the ghost in unison.
Phang hesitated. Not because it would be difficult to carry out the command, but because carrying out the command would run the risk of creating further, perhaps intractable, problems. Karma was like that. Many-armed, sticky. Yet, you didn’t challenge the command of a ghost. “If I may,” said Phang, “I say it is my great honour to be permitted to do as you command. If I may further, I would . . . enjoy a methodical, deliberate approach, rather than a sudden scattershot solution. Fear will increase. It will be most satisfying.”
Vinh, who was no fool at all, saw the wisdom in his lieutenant’s veiled correction. “As you wish. But all of them.”
Phang bowed and backed away from the ghost. He had the thought for the first time, perhaps, that he was glad he was not Vinh.
“MAKES NO SENSE,” said Dabord, for the umpteenth time. “A Mafia hit man coming after Gladys? It’s got to be some kind of mistake.”
“Not Mafia. ‛Ndrangheta. Calabrian.” The organized crime specialist from the provincial police kept correcting Dabord.
“Same diff,” the chief snapped. They were all gathered in the largest space in the Backton PD building, an area formed from the locker room and a couple of adjoining supply rooms with their double doors propped open. It smelled of feet and A535 muscle rub. “Doesn’t make any sense whatever name you give it. Are we sure it’s not some crazed sex maniac from . . . from . . .”
“Reggio?” the specialist proposed.
Dabord let show the wisp of a grim smile. “I was thinking more of Seminara,” he said. The specialist’s eyebrows rose fractionally, and he gave Dabord a small nod of his head: message received; assessment revised.
The DC’s aide said, “We’re a hundred percent sure. He was there to kill. And it seems certain he knew who his target was. That she was an old woman, I mean.”
“Yeah, yeah,” Dabord conceded. “Plastic bag. Asphyxiation. Wanted it to look natural.” He got up and put more coffee into his cup from the big box provided by the Tims out near the highway. “Jesus,” he said, straightening up. “What a thing.” He looked at all the provincial cops in the room and settled his gaze on the Deputy Commissioner, who was keeping his counsel in a corner, leaning back under an old Don’t Drink and Drive poster that someone had altered to read Don’t Think and Thrive, which no one understood. Dabord tasted the coffee still on his tongue. Then he announced, “I’ll say it one more time. Gladys Tremaine is a fine, upstanding citizen of this town. She could no more be involved in criminal activities than any of your sainted mothers or grannies.”
A number of people in the room reflected evidently on whether their mothers and grannies could in fact be absolved of criminal tendencies.
“You think it might be the business with . . . with . . .” The DC snapped his fingers softly a couple of times.
“Dean Nabel,” said his aide.
Dabord gave a reluctant, expansive shrug. His coffee slopped over a bit.
The DC tapped his right thigh. “We’ll take this, Chief,” he said.
Dabord shook his head. “Be my guest,” he said. “Be my . . . guest.”
The District Commissioner stood up, which made everyone else get to their feet. Dabord, still shaking his head, sat down and looked into his coffee.
“WAKE UP, WALLY, we’ve got some work to do.” Rangel had the phone tucked between her shoulder and her ear. She was pacing in her small office, sorting furiously through papers in a file as she talked. Her tone was sharp, her motions jerky, abrupt.
“Good morning to you, too.” Mitman was puffing into the phone. He sometimes ran in the mornings, often came in late on Thursdays. “What’s up?”
“Get here ASAP. I’m . . . mad as hell. I’m . . . freaking out. Someone tried to kill —” She stopped, hearing dead air. He was on his way already. Releasing her pent-up fury and fear, she hurled the file and its contents across the small space.
Paper is not so easily bullied. Sheets settled gently like gliding birds. Rangel panted for a moment and contemplated pitching her phone at the wall. But then, rolling her shoulders, she bent to the methodical task of picking up the pages.
Thinking: she needed to shower, change her clothes.
Feeling: her muscles flex and draw power to themselves.
Setting her jaw.
© Simon Fodden
In the Wake of Life
We haven’t reflected on death yet in one of these addenda to the current chapter, but, like taxes and that other thing, it’s inevitable that we do so at some point because the novel’s a Krimi (to use the handy German term for a crime novel). There are, thankfully, ways and ways. One of the more welcome approaches to the topic is music — more pleasure, less grue. And to help us with that I offer up Greg Garrett’s “Death and all of his tunes” on the ever-stimulating OUPblog. (The devil may think he has the best tunes . . . ) Greg’s a prof in theology and also in pop culture (!) at Baylor, and he’s put together a great playlist of 18 tunes that, well, that touch on the afterdeath — or what we prefer to call the afterlife.
In his blogpost he talks a bit about each of the tunes, so if you’re a tip-toe-er when it comes to unfamiliar music, you can read it there first — though you’ve likely heard half of his list at one time or another. His playlist is constructed for Spotify, and I’ve embedded it below. Those of you who don’t use Spotify or don’t want to open an account can use the YouTube playlist I’ve put together for the same 18 tunes — though YouTube sound quality may be less than you could get from Spotify.
Are you keeping track of the law on digital currency such as Bitcoin? Are your clients using it, or wanting to? Are you?
Objects in the future are closer than they appear (sometimes).
I recently took a course on copyright law. A number of the questions that came up during the course could not be answered with a simple yes or no; often the answer was “in this circumstance, you should talk to a lawyer.” The course made it clear that there are many misconceptions about copyright. For example, several people taking the course believed that you could freely use copyrighted materials if you were not profiting from your use of these materials.
The copyright questions that librarians have to wrestle with often fall into the grey areas of copyright law. As a result librarians tend to take a very conservative approach to copying materials. In some situations, I have talked to a publisher just to clarify whether a given use was acceptable. At work we include a field in the library catalogue indicating what an item’s copyright status is so that both the library staff and users are aware.
The trouble with taking a conservative approach to copyright law is that it results in unnecessary restrictions. One organization that my library uses for interlibrary loan will not send PDF copies of material for copyright reasons; instead the copies must be faxed to us.
A conservative approach to copyright can also prevent users from accessing materials in the public domain. Take, for example, HathiTrust, an initiative to provide “long-term preservation and access services for public domain and in copyright content from a variety of sources“. Unfortunately for Canadians, HathiTrust limits what can be accessed by users outside the United States for copyright reasons, so even though an item is in the public domain in Canada, it may not be accessible on HathiTrust. This is frustrating given that Canadian copyright law is currently lifetime plus 50, as opposed to lifetime plus 70 in the United States.
Electronic databases also have their challenges. The licence for an electronic resource may place greater restrictions on use than what would otherwise be allowed under copyright law, so licence agreements should be read carefully. (For this reason in my library we keep a binder of licence agreements for easy reference.)
Fortunately the Canadian Association of Law Libraries (CALL) has taken an active role with regards to copyright in law libraries. In 2012 Mary Hemmings, then the Chair of CALL’s Copyright Committee, spoke to the Legislative Committee on Bill C-11 about the Copyright Modernization Act. She emphasized the importance of users being able to “reproduce federal legislation for personal, non-commercial uses” and urged the government “not to restrict the public’s right to access what should be in the public domain.”
Crown copyright is a good example of a situation in which there is little benefit in restricting use. Legislation, both federal and provincial, should be freely available, and any limitations on their use should be clearly communicated. There was a non-commercial licence for government materials on the federal Public Works and Government Services website, but in 2013 it disappeared. Users now have to contact the department or agency that created the information directly to request copyright clearance: a step backwards.
While it is important that content creators are fairly compensated fairly for their work, copyright law should not be penalizing users when there is no corresponding benefit to copyright holders. Clearer copyright law benefits both creators and consumers. Alas, it seems unlikely that the current copyright regime is going to get simpler any time soon.
Two weeks ago, I wrote about the Truth and Reconciliation Commission’s (TRC) many calls to action that focus on the information management community (museums, Library and Archives Canada, archivist associations, vital statistics agencies, etc.).
Earlier this month, the TRC released its findings after its years-long investigation into the many abuses against Aboriginal children at Church-run Indian Residential Schools in the 19th and 20th centuries.
This week, the ActiveHistory.ca website published an article by Krista McCracken, Archives Supervisor at Algoma University’s Shingwauk Residential School and Wishart A. Library.
“The report features 94 recommendations to facilitate reconciliation and address the legacy of residential schools, including a set of recommendations relating specifically to museums and archives. Given the challenging past relationship between the TRC and archival institutions these recommendations are perhaps not surprising.”
“The TRC went to court in 2012 and 2013 to gain access to archival records relating to residential schools held by Library and Archives Canada. The Commission’s recommendations go beyond the issue of access. It also includes calls to action relating to best practices, commemorative projects, public education, and compliance with the United Nations Declaration on the Rights of Indigenous Peoples (…)”
“The executive summary pointedly notes that museums and archives ‘have interpreted the past in ways that have excluded or marginalized Aboriginal peoples’ cultural perspectives and historical experience….as history that had formerly been silenced was revealed, it became evident that Canada’s museums had told only part of the story.'(p. 303) (…)”
“Archives also have a crucial role to play in the preservation of a representative and accessible history of Canada. Holdings need to be described in a way that is respectful to Indigenous worldviews, Indigenous people have a right to access material created by and written about them, and that access should not involve insurmountable barriers. Archives play a crucial role in ensuring all sides of the past are documented and archivists need to look at their practices to ensure Indigenous voices are being preserved in a complete and respectful way.”
“Archives and museums which hold material created by Indigenous people or who create exhibits on the history of Indigenous people need to look toward better models of collaboration. Not simply token collaboration which sees an elder opening meetings but collaboration which involves First Nation, Métis, and Inuit people in a meaningful and respectful way. The creation of best practices and guidelines for archives and museums that are developed at a national level would be a huge step forward in the heritage field. I hope that the heritage profession at large takes heed of the TRC’s words and thinks carefully about how it can help work toward reconciliation.”
ActiveHistory.ca describes itself as a “website that connects the work of historians with the wider public and the importance of the past to current events.”
Some of you may have seen the Canadian Legal Digital Survey report (or the infographic that gives you the highlights) that was released by my firm, fSquared Marketing, last week. If so, you may have realized that something was missing. But before I get into that, for those of you unfamiliar with the report, here’s some background.
In recent years, we’ve seen various reports and analyses that seek to understand the needs of in-house counsel. However, the majority of these surveys are initiated by, and focused on, the US market. This implies, perhaps incorrectly, that Canadians both find and consume legal services and information in the same manner as their American counterparts.
We wanted to see where the truth lay and so the first annual Canadian Legal Digital Survey was born. The focus of the research was traditional digital interaction, web and social media engagement and related areas such as content marketing, client feedback programs, electronic billing, client portals, and directories. The targeted participants were in-house counsel at companies across Canada, and managing partners at Canadian law firms and Canadian offices of non-Canadian law firms.
We set out to compare the usage and views of both constituencies. But there was something missing from our research – the managing partners. The survey was sent by e-mail which was followed up by a phone call encouraging participation. Marketing Directors and Managers were contacted to encourage their MP’s to participate. The survey responses were anonymous. And yet, only 8 managing partners, out of the 208 that received the survey, participated.
So why did so few managing partners participate in our survey? Is it a lack of understanding, a lack of experience or simply a lack of time? Could it be that they, like many lawyers, are not entirely enamoured with the idea that social media, content marketing and the internet are tools to be used in their practice development?
I honestly don’t know the answer to the why, but I do believe they should be more engaged in their digital strategy based purely on the survey results from their in-house colleagues, the highlights of which include:
Given that so many in-house clients find digital to be a credible source of information we can hope that maybe next year managing partners will participate in our survey and tell us what they really think.
If you’d like to read the full report, go to canadianlegaldigitalsurvey.com.
Last June 5th, the Office of the Privacy Commissioner of Canada (OPC) issued its findings (Complaints against Globe24h.com, 2015 CanLII 33260 (PCC), the “Findings”) in relation with the activities of a Romanian entrepreneur who illegally downloaded a large number of Canadian decisions in order to commercially exploit the desire of the individuals named in these decisions to maintain some degree of privacy. The story of Sebastian Radulescu, the operator of the Globe24h.com website, has been reported by news organizations such as the Financial Post, the CBC and the Globe and Mail. See our summary at the end of this post.
The OPC Findings offer a revealing description of the various schemes used by the Globe24h operator to extract money from the Canadian people named in the decisions. Essentially, those decisions were made searchable via Google, and then money was asked for (19 Euros) to have the decisions redacted. In its Findings, the OPC recommended “that Globe24h delete from its website and servers all Canadian court and tribunal decisions that it republishes which contain personal information and take the necessary steps to remove these decisions from search engine caches” (Findings, par. 95). The OPC concluded that the some 30 complaints were well-founded under PIPEDA. Furthermore, the Office stated its continuing interest in the matter and its intent to further collaborate with relevant Romanian authorities towards securing an appropriate resolution.
The OPC investigation and the resulting Findings constitute an important step towards a solution for all those who complained or even those who did not complain but discovered that court or tribunal decisions in which they were mentioned could be searched with Google and other popular search engines.
The analysis followed by the Office of the Privacy Commissioner is largely based on the “Model Policy for Access to Court Records in Canada” (the “Model Policy”) prepared by the Judges’ Technology Advisory Committee of the Canadian Judicial Council (the “CJC”) in 2005. Noting that the document was the result of a public consultation concerning electronic access to court records and its impacts on the open court principle, individual privacy and security rights, the Findings cite the Model Policy’s guiding principles:
With regard to the use of the Internet for disseminating decisions, the Model Policy goes on to state:
However, if the judgments are posted on the Internet, it is a good practice to prevent indexing and cache storage from web robots or “spiders.” Such indexation and cache storage of court information makes this information available even when the purpose of the search is not to find court records, as any judgment could be found unintentionally using popular search engines like Google or Yahoo.
This good practice had been widely adopted in Canada by those who publish court and tribunal decisions on the Internet: the courts and tribunals themselves but CanLII and Lexum as well.
With the OPC’s Findings, the wisdom of the CJC’s advice can be fully measured today. This Canadian-designed balance between transparency and access on the one hand and individual privacy and security rights on the other hand proves to be adequate. The Findings are eloquent in this regards, at para. 32, the authors remark that:
“a number of complainants explicitly recognized the importance of the open court system, which meant that the decisions in question would be made available through online repositories. However, they did not feel that allowing broad availability of decisions containing their personal information through search engine results was necessary to ensure the transparency of the legal system – particularly given the associated emotional and reputational harms caused.”
The OPC clarifies the stakes:
The Office of the Privacy Commissioner’s findings are good news in many quarters. Those who justly resent the dissemination of their personal information entailed by the Globe24h scheme will find hope in the work and the announced continuing interest of the Office. The work done by the Judges Technology Advisory Committee of the Canadian Judicial Council, after having been used for ten years, has now been examined by a specialized authority and seems to constitute the balanced solution sought after in 2005. The CanLII policy in matter of access and the similar policy followed by various courts and tribunals across the country also seem to be validated in the Findings.
It remains to be seen how things will end up with Globe24h. One can only wishes that this shabby business will disappear soon.The Globe24h Story
Having accumulated a nice lot of decisions, Mr. Radulescu turned his attention to monetization. The scheme finally chosen was to set up a site called Globe24h and to reference it on Google and some other search tools. From that point, when the name of a person was searched on Google, and if this name was present in one of the stolen decisions, a copy of this decision published by Globe24h appears in the search results. This result leads to a Globe24h copy of the decision where the user was invited to send 19 Euros to have his/her name redacted. The racket slightly evolved over the last two years while remaining essentially the same. More recently, the main business angle seems to have become a combination of using the content as a tacky advertisement support and a “spamdexing” basis.
By Daniel Poulin and Frédéric Pelletier
On June 11, the Manitoba government introduced proposed amendments to the Public Interest Disclosure Act to protect whistleblowers from reprisal, prevent disclosure of identities and give designated officers greater powers to investigate wrongdoing.
The proposed amendments are based on recommendations resulting from a comprehensive review (log in required) conducted by Dianna Scarth, former executive director of the Manitoba Human Rights Commission, as well as recommendations from the ombudsman.What is the purpose of the amendments?
Specifically, the amendments would:
Disclosures would be handled by a senior official within the government entity (referred to as a “designated officer”) or by the ombudsman.
If enacted, the amendments would come into force January 1, 2016.Why are these amendments needed?
According to the Scarth report (In PDF), since the Public Interest Disclosure Act (PIDA) was proclaimed in 2007, the vast majority of disclosures have been made to the ombudsman. The only recourse for whistleblowers who face reprisals from their bosses is through the Manitoba Labour Board. That process involves the complainant revealing her or his identity.
In 2013, there were 42 disclosures under PIDA made to the ombudsman (with a number dealing with the same matter) and three made within government. But in most years since the legislation was proclaimed, total disclosures have numbered in the single digits.
The proposed amendments make for a very strong piece of legislation. By increasing identity protection for so-called whistleblowers, the effectiveness of the whistleblower protection and management of the public sector should improve since people who want to report government wrongdoing may also remain anonymous.
In addition, by giving more power to the provincial ombudsman to investigate and report on complaints, transparency will increase.
The Internet is full of lawyers trying to grab the attention of clients. It’s difficult for even the savviest consumers to tell one firm from another. The best way to get more clients to choose you is to distinguish your firm from the others, emphasizing the points that will appeal to the clients you want to attract.
Think about what your firm offers that others do not. What values do you and your employees find worthy of your support? Why should a client hire you instead of your competition? Your target clients are wondering about the answers to these questions, so be prepared to deliver an argument on why they should select you over your colleagues.
In previous posts in this series, we identified your ideal client and niche and performed a SWOT Analysis. The work you did in the previous posts will help you define your unique competitive advantage. In your SWOT Analysis, you figured out your strengths and weaknesses. Take a look at the strengths and consider how you can emphasize those points when advertising and in all of your interactions with clients — not just any clients, but the ideal client you envisioned in Step 1.Step 3: Competitive Advantage
Your competitive advantage is the story of your best firm.
A unique competitive advantage is similar to a unique selling proposition. It answers two questions:
Surely, you have areas of specialty that make you exceptionally qualified and where your experience is deep. Show clients how you resolve issues more efficiently or better than anyone else based on this experience.Don’t Get Mired in the Obvious
One tripping point for companies in developing a unique competitive advantage is focusing on all of the things they do, rather than focusing on what they excel at. You are looking for things that make you stand out, not blend in. It’s not enough to meet the status quo. You need to find ways that you are head and shoulders above the rest.Tailor Your Message
Present yourself as an expert in specific areas. People want to hire experts, especially when making important decisions such as representation. Do not worry about pleasing everyone. Defining your competitive advantage is about pleasing your ideal client so that you can earn what you are worth.
Note what your competitors are known for when you begin to shape your competitive advantage. Consider what benefits you can offer clients that other law firms cannot, even if the benefit is a result of something as arbitrary as location. Anything that provides an advantage — location, parking, price, quality of offices — should be considered. Notable cases you have tried and famous clients can also be a part of your competitive advantage.Look At Yourself From All Angles
If you have a hard time seeing yourself as better than average, look at yourself from the viewpoint of one of your satisfied clients. Even if you were just doing your job, estimate the value of your services from the point of view of a client whose life you have changed. Focus on the positive results you produced, and the problems you’ve solved for others.
Consider value rather than price. People can always find services cheaper, but savvier clients know that they get what they pay for, and they are willing to pay more to receive the qualities of service that are important to them. Can you survey your clients about what they enjoy about having you as their lawyer?
The answers could help you get a better perspective on what you do particularly well.Be a Good Neighbor
One way to build your competitive advantage is to marry your firm to an important cause or issue that you and your colleagues and employees support together. The cause should reflect something that your firm holds dear, such as family issues or education. In step one of this marketing plan series, you envisioned your ideal client. Which causes are most important to that demographic? How can you show your clients that you understand their values through your philanthropic work?
You should also do all that you can to be a good neighbor to the residents and business around your firm. Supporting community efforts such as town clean-ups, little league teams, and art events gives your clients a valuable benefit. By giving you business, they are supporting their own communities. Being community-minded greatly improves the public perception of your business.Be Natural
Remember that you are a person, not a billboard. You want to find ways to spread the word about your competitive advantage, but you do not want to sound like a traveling salesman. So practice delivering your information, be ready to seize the opportunity to sing your own praises.
The next article in this series will focus on marketing strategies and actual marketing practices you can use to grow your business.
Featured image: “What Makes You Unique?” from Shutterstock.
5-Step Legal Marketing Plan, Step 3: Competitive Advantage was originally published on Lawyerist.
Some Australian universities warned students this month not to wear wristwatches during final exams, amid concerns that increasingly popular wearable technology, like the Apple Watch, could foster cheating.
La Trobe University, in Melbourne, and the University of New South Wales, in Sydney, both issued warnings at the start of their final-exam periods that students would have to remove their watches before testing began. The University of New South Wales required students to put all wristwatches in clear bags under their desks. La Trobe students could place traditional watches on their desks while taking exams, but they could not have smart watches in an exam room.
Such policies are likely to be in place soon at American universities, said Eric Klopfer, director of the Scheller Teacher Education Program at the Massachusetts Institute of Technology.
It is becoming increasingly more difficult to distinguish a smart watch from a traditional watch, he said, so if colleges don’t want students to wear smart watches during exams, they’ll probably have to ban all watches.
There has also been a push to create tests that would be immune to students’ efforts to store answers on their phones or watches, Mr. Klopfer said. He compared the approach to open-book exams, which focus less on memorization and more on analysis.
“As we get better at our educational system, it will seem less like we need to ban these things,” he said, “because the kinds of things we’ll be putting on an exam students won’t be able to store on a watch.”
The Australian universities aren’t the first to ban smart watches from exam rooms, though. The Educational Testing Service, which administers the Graduate Record Examination and the Test of English as a Foreign Language, started using wands years ago to ensure that test takers didn’t carry cellphones into exams, said Ray Nicosia, executive director for ETS’s Office of Testing Integrity.
Proctors can use the same wands — similar to those seen at airport security lines — to check whether test takers are wearing watches. So now the proctors can ask to inspect the watches and store them in a locker, if necessary. The company wants to “stay ahead of anyone taking an unfair advantage,” Mr. Nicosia said.
“The test takers comply,” he said. “They want to get in, take their test, and move on.”
Does merit trump diversity? Can’t both coexist and in fact, isn’t it possible that an individual’s merit is enhanced by that individual’s background, skills and experience?
These questions rolled through my brain as I read yesterday’s Financial Post article, Firms adopting diversity policies but few commit to targets for women on boards. The suggestion is that increasing diversity in membership of corporate boards may have a negative impact on the effectiveness of those boards. Some corporations are hesitant to set targets for gender diversity on their boards, the lawyers interviewed explained:
…the most common reason given by companies for not having a policy or targets to encourage gender diversity was that there was a commitment to selecting candidates based on merit.
There it is: the underlying belief that merit is incompatible with gender diversity.
It’s no secret that I firmly believe the legal profession would be greatly strengthened and more effective in delivery of legal services if it were more representative of the diversity of skills, backgrounds and experiences of Canadian society. (I’ve previously written about it here, here, here and here.)
I believe it because there is good evidence to suggest it is true. I believe it because I see it around me. I believe it because I am a woman in the legal profession. I believe it because I need to as the mother of a daughter.
Last week I was fortunate to attend the swearing in ceremony for Manitoba Provincial Court Judge Lindy Choy. These issues came to the fore through a number of remarks made by those congratulating Judge Choy on her appointment.
But it was Sofia Mirza, President of the Manitoba Bar Association, who directly addressed the link between diversity of the legal profession and merit in her remarks to Judge Choy:
Your appointment to the bench is also an important example of the diversity in leadership in our Province which supports that representation on the Bench, reflects the diversity of the citizens of Manitoba.
As the MBA’s first visibly ethnic president, and as a first generation Canadian myself, you are an inspiration to me, of the leadership advancements that can be achieved in our profession. We are blessed in an exciting year where the CBA President, MBA President, Past President of the Law Society, CEO of the Law Society, Dean of the law school, her Associate Dean’s, and the last four appointments to the bench are all women. We have come a long way in our profession and have much to be proud of.
In closing, there is one more important point that I would like to share with the example that your appointment has set for all of us. Appointments are based on education, communication skills, employment skill sets, and experience, to name a few of the factors that are considered. The point I am trying to make is that appointments are based on merit, not gender or the color of one’s skin. Those characteristics did not serve as barriers in the advancement of your career. Your merit is what spoke. You are an example of what shattering the glass ceiling is all about.
I couldn’t have said it better myself.