Paths to Success: As Varied as the Lawyers Who Follow Them

slaw - Mon, 10/20/2014 - 14:03

“Diversity” describes the characteristics of a group. When we examine how diversity influences the profession as a whole, it’s easy to lose sight of the experience of being an individual lawyer, with specific identity characteristics, practising law in Ontario. While cultural sensitivity benefits all lawyers, what is it like to practice law when, at least with respect to some aspect of your identity, you are in the minority?

We posed that question to the four lawyers profiled in the in the newest issue of LAWPRO Magazine. While their stories are very different, all four agreed that success depends on building meaningful relationships – whether with mentors, colleagues, or the young lawyers who will eventually follow in your footsteps.

Categories: Teknoids Blogs

Ga. State’s Loss in ‘E-Reserves’ Case Might Actually Be a Win for Librarians

The Chronicle Wired Campus - Mon, 10/20/2014 - 13:56

In May 2012 fair-use advocates celebrated a federal judge’s decision in a high-profile copyright case. The ruling was seen as a decisive victory for Georgia State University, whose librarians wanted to be able to make freely available as much copyrighted material as possible to students via its electronic reserve system.

On Friday a federal appeals court ended that celebration by reversing the judge’s decision and sending the “e-reserves” case back to the lower court for further action.

At a glance, the latest ruling looks like a loss for Georgia State and its allies, and a win for three academic publishers that had sued it. But was it, really? In the days since the ruling was issued, several university-based copyright experts have argued that the reversal is not as bad as it might seem.

Kevin Smith, a scholarly-communications officer at Duke University, argued in a blog post that even though the publishers had revived their case, the appeals court had ruled against them on several important points:

  • The court agreed that potential copyright violations should be addressed on an “item by item” basis, rather than a “big picture” approach that would probably require Georgia State to purchase a “blanket license” to post e-reserve materials.
  • The court agreed that when evaluating whether e-reserve copying counts as fair use, it should be relevant that university libraries are nonprofit, educational institutions.
  • The court rejected the lower court’s “10 percent rule,” which drew a bright line on how much of a copyrighted work the university could make available free. The appellate judges instead advocated for “a more flexible approach that takes into account the amount appropriate for the pedagogical purpose.”
  • The court agreed that if a publisher had not made it possible for libraries to license excerpts of a copyrighted work, then libraries do not harm the market for the publisher’s products by copying the desired excerpts and making them freely available.

“These losses, which constitute the heart of what the publishers were hoping to achieve when they brought the lawsuit, are probably final,” wrote Mr. Smith.

Nancy Sims, a copyright-program librarian at the University of Minnesota Libraries, also cheered the court’s ruling, even as it reversed the previous decision in favor of Georgia State.

She cited the court’s opinion that the Classroom Guidelines, a set of rules written nearly 40 years ago by the U.S. Copyright Office, should not be treated as gospel by universities that maintain e-reserves. Ms. Sims wrote:

“Maybe this isn’t great news to the many folks who have (quite correctly) long-since abandoned applying any mental energy to the outdated Guidelines. However, I regularly encounter librarians, library workers, teachers, and other educators who have received no other information about fair use—and often, these folks have explicitly been trained that the Guidelines are the One True (and complete maximum) Way to Know Fair Use in classroom contexts. (Oddly enough, many of them have also received their only copyright training at no cost, from generous publishers …) Having an affirming court opinion to refer to that clearly refutes the applicability of the Classroom Guidelines is quite a blessing, from my perspective.”

Georgia State, which will now have to continue to litigate the case while paying its own legal fees (the lower court’s decision to make the publishers pick up the tab was vacated), responded tepidly to the new ruling.

“Georgia State will continue to defend the rights of universities in this complex digital environment and protect access to information for our students,” said Kerry Heyward, the university’s lawyer, in an email to The Chronicle. “This decision, while not the outcome we had hoped for, supports the lower court’s ruling on fair use.”

Categories: Teknoids Blogs

The Honourable Louise Arbour Inducted Into Canada’s Walk of Fame

slaw - Mon, 10/20/2014 - 13:04

On Saturday The Honourable Louise Arbour‘s star was unveiled on Canada’s Walk of Fame along with those of the other inductees The Band, Jeff Healey, Rachel McAdams, Ryan Reynolds and Hayley Wickenheiser.

#CWOF2014 Inductee @louise_arbour stopped by the #TwitterMirror on the #SunLifeYellowCarpet. Watch Dec. 19 @Global_TV

— Canadas Walk of Fame (@CWOFame) October 20, 2014

From her bio included with her webpage:

The Honourable Louise Arbour is currently a jurist in residence at Borden Ladner Gervais providing strategic advice to lawyers of the Litigation Group, in particular on issues pertaining to international disputes. Her great legal mind, the wealth of her judicial experience and her in-depth knowledge of major international issues has made her one of the most influencial legal minds in both Canada and abroad.

She sat as a justice of the Supreme Court of Canada from 1999 to 2004, on the Court of Appeal for Ontario and the Supreme Court of Ontario. She has held senior positions at the United Nations, including that of High Commissioner for Human Rights, and is a member of the Global Commission on Drug Policy and of the International Commission Against the Death Penalty. She is also a member of the Advisory Board of The Coalition for the International Criminal Court. She chaired an inquiry commission that investigated certain events at the Prison for Women in Kingston, Ontario, and has also served as a member of the Global Commission on Elections, Democracy and Security.

Justice Arbour has received numerous honorary doctorates and awards. In particular, she has been a Companion of the Order of Canada since 2007 and a Grand Officer of the Ordre national du Québec since 2009, as well as a Commander of the Légion d’honneur, and has been decorated by both Spain and Colombia.

The Walk of Fame tribute show will be televised on Friday, December 19. See the press release for more details.

Categories: Teknoids Blogs

John Oliver Finds a Way to Put Cameras in the Supreme Court — Sort Of

The Lawyerist - Mon, 10/20/2014 - 10:46

Don’t watch this unless you want to see Scalia depicted as an actual bulldog, Alito as a poodle, and the court reporter as a chicken.

Fire up your video editor, because here is Last Week Tonight‘s raw footage so you can remix the Court’s arguments yourself.

Categories: Teknoids Blogs

Supporting Open Access at the Osgoode Hall Law School

slaw - Mon, 10/20/2014 - 08:40

It’s Open Access Week this week, an opportunity to highlight efforts to promote, facilitate and otherwise support access to cultural, scientific and legal information. If you’re on campus at York University this Friday afternoon Osgoode Hall Law School professor Carys Craig will introduce the screening of “The Internet’s Own Boy” a presentation of the York University Libraries Scholarly Communication Initiative. If you can’t be there Friday I encourage you to watch this wonderful telling of Aaron Swartz’s life story which is also openly available on the Internet Archive

It’s a sad and tragic story which begins in many ways when Swartz attempts to help with Carl Malamud’s call to liberate U.S. federal court documents and other legal papers from the PACER (Public Access to Court Electronic Records) database.

PACER claims to provide “public access to court information,” and it does, but as Sarah Glassmeyer wrote earlier this year the ‘P’ in PACER doesn’t stand for “public” as in “public library” where “all the information contained within it was free to use”; it stands for “public” as in “public records” meaning “everyone is free to look at them.” So you can look, but because the U.S. Congress “directed the Judiciary to fund the initiative through user fees,” looking at these public records currently costs users 10 cents per page viewed.

Now 10 cents per page doesn’t seem like much, but as John Schwartz writes in a 2009 New York Times article:

“… Pacer adds up, when court records can run to thousands of pages. Fees get plowed back to the courts to finance technology, but the system runs a budget surplus of some $150 million, according to recent court reports.”

These access charges have been improved somewhat since that article was written. In 2011 the fee structure to access documents on PACER was changed so that users viewing less than 150 pages in a given quarter would not be charged a fee and a three dollar cap for “electronic access to any single document” was also introduced. Regardless, it makes you realize just how lucky we are to have CanLII working to provide us with such a fantastic and open service to our Canadian legal documents.

I’ve also been fortunate to work with Louis Mirando and Daniel Demanuele over the past year or so on a project to develop and implement the Osgoode Digital Commons. Officially launched on October 7th as part of the the 125th anniversary celebration of the founding of the Osgoode Hall Law School, the Osgoode Digital Commons,

“… captures, preserves and makes available to the global public the intellectual output of the law school, including faculty research, scholarship and publications; journals and research centres; selected records and archives; and digital initiatives from the Osgoode Hall Law School Library.”

This so far includes the complete runs of 4 Osgoode journals, the Osgoode research paper series, and a collection of videos documenting many special lectures and events that have taken place at Osgoode. We are currently in the process of acquiring and making available historical faculty scholarship published in many non-Osgoode publications.

In addition, the Osgoode Digital Commons provides access to the reports of the Ontario Law Review Commission, Ontario statutes, and there are plans to digitize and make other digital texts available.

So far the Commons has shown remarkable success with, at the time of this post, over 220,000 full-text downloads of Osgoode scholarship worldwide. It’s fascinating to watch this number grow on the real-time readership map found on the Osgoode Digital Commons main page that shows where in the world individual documents are being accessed and downloaded.

In the Guerilla Open Access Manifesto Aaron Swartz wrote:

Those with access to these resources — students, librarians, scientists — you have been given a privilege. You get to feed at this banquet of knowledge while the rest of the world is locked out. But you need not — indeed, morally, you cannot — keep this privilege for yourselves. You have a duty to share it with the world.”

Let’s continue to fight for open access to our public information and remember the pioneering efforts of Aaron Swartz.

Categories: Teknoids Blogs

14th Century Legislation, as Amended.

slaw - Mon, 10/20/2014 - 08:11

A distinguished Ontario litigator I know has made it a personal rule never to cite a case that was reported before the year he was called to the bar.

The British Foreign Secretary Phillip Hammond might want to enquire whether any of the lawyers he likes to retain harbour any such sentiments. Last week Mr Hammond appeared to entertain the thought of laying charges of treason against Britons who go to fight in Syria and Iraq.

The law of treason dates back to an English statute of 1351.

Guy Fawkes and his co-conspirators in the gun powder plot were convicted of it in 1605. They were hung drawn and quartered.

The last person prosecuted for treason in the U.K. was Lord Haw Haw in 1946 for his Nazi propaganda broadcasts. He got off rather more lightly. He was merely hanged.

Cabinet ministers discussed prosecuting IRA bombers for treason in the 1960’s. There were calls for treason charges following the London bombings in 2005. There were no prosecutions in either case.

Among the discussions now circulating on how to deal with British jihadists, there appear to be 3 main reasons why the existing treason law must not be resorted to.

One is the political fear that treason prosecutions will create martyrs, particularly if the death penalty were re-introduced for it, as some are demanding. A second is that the archaic language and medieval constructs in the 14th Century statute (which addresses harm to the king, his wife and eldest son and daughter, but not other members of the royal household) make it impossible to interpret in the 21 st Century. Third, the statute would have to be interpreted in conformity with the 1998 Human Rights Act.

The consensus seems to be that a new law is needed. Not surprising. Not easy either.


Categories: Teknoids Blogs

Q: Doesn’t My Password Protect My Computer?

The Lawyerist - Mon, 10/20/2014 - 06:12

A: No.

There are basically two “doors” to your computer, and you need to lock both of them to prevent someone from accessing the information on your computer. The front door is through your operating system (Windows, OS X, Linux, etc.). You can put a lock on the front door by using a password. This is the password you use to log in to Windows.

This password — your operating system password — prevents someone from using your computer as if they were you. This is a good idea, but it does not protect the back door: your hard drive.

In most computers, your hard drive is not much different from a USB drive (thumb drive, flash drive, whatever). It just plugs into your computer’s Serial ATA port instead of a USB port. Here is an $8 cable that lets you plug any hard drive into a USB port. Once plugged into a USB port, the data on your hard drive is as easy to read as any other USB drive.

Here is how easy it is to remove your hard drive:

The “hard drives” in many tablets and ultrabooks are a bit more difficult to access since they are soldered to the motherboard. That just means it takes a few more steps to read them; it does not make the data more secure.

Related“Encryption: Enabling Basic Client File Security”

There is no password that can protect the data on your hard drive. You need a different sort of security: encryption. Encrypting your hard drive scrambles the data as if every bit of information were run through a Little Orphan Annie decoder ring. Except way more complicated.

Enabling encryption is, fortunately, not complicated at all. Turning on Bitlocker (Windows) or FileVault (OS X) is just a setting. Turn it on, and your back door is locked. (If your version of Windows does not have Bitlocker, you need to upgrade to a version that does.)

Once you enable encryption, you don’t have to think about it. When you log into your computer with your password (make it a good one!), your computer will decrypt your files on the fly as you need them. You can open them, attach them to emails, and use them as usual. But when you log out of your computer, your files will be encrypted and your back door will be locked.

There are, of course, other potential “doors” into your computer, but those are a bit more complicated to deal with, so they are a question for another day.

  • 2014-07-13. Originally published.
  • 2014-10-20. Revised, updated, and republished.


Categories: Teknoids Blogs

Monday’s Mix

slaw - Mon, 10/20/2014 - 06:00

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.

This week the randomly selected blogs are 1. Slater Vecchio Connected 2. AvoidAClaim Blog 3. The Court 4. 5. À bon droit

Slater Vecchio Connected
Are Fines for Distracted Driving in BC too Low?

Immediate communication has become the norm and many feel obligated to respond to texts and e-mails while driving. Attorney General Suzanne Anton says distracted drivers aren’t taking current penalties serious enough. “I am concerned that distracted driving is the second-largest contributing factor in motor-vehicle fatalities on BC roads,” said Anton. Effective October 20, the number of demerit points associated with distracted driving will increase from zero to three. The existing fine of $167 will stay the same. Is this enough to deter drivers from using their devices while driving?…

AvoidAClaim Blog
Title insurance policies are like a box of chocolates – No two policies are the same

“The lawyer should be knowledgeable about title insurance and discuss with the client the advantages, conditions, and limitations of the various options and coverages generally available to the client through title insurance,” states Rule 2.02(10) of the Rules of Professional Conduct. This obligation was brought home in a recent malpractice case where the lawyer did not properly address the protection title insurance would afford the client and did not fully investigate the issue at hand….

The Court
Minority Language Education for Majority Students: CS Francophone du Yukon v Yukon Territory

On 26 June 2014, the Supreme Court of Canada (“SCC”) agreed to hear an appeal of Commission Scolaire Francophone du Yukon v Attorney General of the Yukon Territory, 2014 YKCA 4 [CS Francophone]. The case concerns a dispute over the control and management of the Territory’s French language education system and is the first time in over a decade that the SCC will render a decision on the scope of minority language education rights in English Canada….
Conclusions intéressantes d’une nouvelle chasse aux pourriels du CRTC

En ce mois de la sensibilisation à la cyber sécurité aux États-Unis, Larry Magid, l’un des collaborateurs de Forbes Tech , rappelle à tous les internautes l’importance de l’«hygiène de sécurité en ligne» puisqu’elle n’affecte pas que les individus eux-mêmes, mais toute la communauté numérique. M. Magid souhaite ainsi souligner l’importance de porter attention aux situations conduisant à un état de vulnérabilité, laquelle peut mener à la contamination de nos ordinateurs par certains virus et logiciels malicieux (ex : zombies et bots), voire même, à l’instar de toute maladie contagieuse, de devenir à notre tour, porteur et propagateur. …

À bon droit
Pour empêcher la reconnaissance et l’exécution d’un jugement étranger au Québec, les procédures déposées au Québec doivent être devant le bon forum

En matière de reconnaissance et exécution des décisions étrangères, l’article 3155 (4) C.c.Q. prévoit que ne sera pas reconnu le jugement étranger lorsqu’un “litige entre les mêmes parties, fondé sur les mêmes faits et ayant le même objet a donné lieu au Québec à une décision passée ou non en force de chose jugée, ou est pendant devant une autorité québécoise, première saisie [...]“. Dans Lynch Suder Logan c. Wilson Logan (2014 QCCS 4765), l’Honorable juge Catherine La Rosa souligne que cette exception ne peut trouver application que si les tribunaux québécois ont véritablement juridiction pour entendre les procédures déposées devant eux….


*Randomness here is created by and its list randomizing function.

Categories: Teknoids Blogs

Risk Management Revisited

slaw - Mon, 10/20/2014 - 06:00

In November of 2011, I wrote a column on the value of risk management for law firms and put forward the proposition that “[d]espite th[e] considerable grounding in working with risk and counseling clients on methods to minimize and avoid risk, seemingly very few law firms in Canada actually engage in any sort of structured or coordinated risk management activities for their own organizations.” I was recently contacted by a reporter for a legal industry publication to discuss risk management for law firms and thus had the opportunity to reflect on my original statement. When asked a question regarding the growth of risk management in recent years and the adoption of risk management programs by law firms I was reluctantly forced to report the fact that while risk management programs have increased in popularity and use amongst organizations in Canada in general, their adoption in the legal services sector has remained rare.

In an attempt to continue to spark interest in the legal sector in the field of risk management (and in recognition of recent shakeups such as the failure of a significant national law firm), I thought it was time to revisit the topic of risk management for law firms and set out some examples of practical steps that law firms can take in regards to risk. As a starting point for the discussion, it can be generally observed that organizations fall on a spectrum of awareness regarding risk management. At one end of the spectrum is a reactive organization that has no formalized risk management practices and is applying an ad hoc approach to dealing with unexpected events. In the middle of the spectrum is an organization that is aware of risk management and perhaps integrates some level of risk management practice into their everyday business decisions. At the far end of the spectrum is an organization that is addressing risk in a strategic manner through the adoption of a comprehensive risk management program that is addressed in their annual strategic planning process and is integrated into the everyday functioning of the firm.

While there are many different approaches to risk management, a common approach is to follow a step-by-step procedure that begins with establishing the context for the risk management program and ends with the application of what is known as risk treatment. The beginning of any risk management program should entail a consideration of various foundational considerations including establishing baseline definitions of risk for the organization and making clear the goals of the program. The next step in the process is a risk assessment that entails the identification and description of potential risks as well as their evaluation. This is perhaps the most important and time-consuming step. The final step in a basic risk management process includes the development of a plan for the treatment of the priority risks that have been identified. Common treatments include transferring the risk (for example through insurance), terminating the risk (by ceasing the risk generating activity), treating the risk (by engaging in risk reduction activity) or terminating the risk (by ceasing the risk generating activity altogether). While steps above are a considerable simplification of the risk management process, they nonetheless capture the common baseline approach to the subject.

In order to make the above discussion less abstract, it is useful to examine a few of the main categories of risk that may be applicable to an average law firm in Canada and that would be considered in the risk assessment step set out above. A sampling of four of these categories is as follows:

  • Economic – Economic risks are those that arise due to changing economic conditions. An example of an economic risk that had a significant effect on law firms throughout Canada was the crash in the global economy that occurred in 2009.
  • Regulatory – Regulatory risks are those that are associated with new or changing laws and regulations. An example of regulatory risk was the closing of the tax loophole regarding income trusts that occurred in 2006 that significantly altered many lawyers practices who focused in this area.
  • Environmental – Environmental risks are those that are faced due to uncommon, adverse or extreme environmental conditions. An example of an environmental risk that negatively impacted the operations of many law firms in Canada was the ice storm of 1998 in Quebec and Ontario.
  • Human Resources – Human Resources risks are those that arise from the management of human resource functions within an organization. The most pressing example of a human resource risk in the legal marketplace today is the failure of many law firms to adequately plan for succession.

As I stated in my original column in 2011 “..risk management has grown to become a multi faceted management discipline that is an important component of the strategic management activities of organizations both big and small.” Unfortunately, in my experience, while lawyers play the role of risk managers for their clients, the legal services industry itself has been slow to adopt formal risk management processes. While the brief comments above only scratch the surface of this complex discipline, it is my hope that they spur some readers on to research the issue further and consider the application of risk management activities to their law firms.

Categories: Teknoids Blogs

Hwang: The Legal Innovation Defense Fund

Legal Informatics Blog - Mon, 10/20/2014 - 03:44

Tim Hwang of the Data and Society Institute invites participation in a new project: The Legal Innovation Defense (LID) Fund, described in a new post at Robot Robot and Hwang.

Here are excerpts from the post:

[...] Today, I want to propose an idea [...]: The Legal Innovation Defense (LID) Fund. The idea is simple: the LID Fund will create a collective insurance program that provides a defense system against the low probability, high impact possibility that a new technology in the legal space will be later discovered to have engaged in UPL [unauthorized practice of law].

There are three components to this project. First, the money: LID would be funded by two main types of actors. There would be a set of smaller startups, non-profits, and other organizations experimenting in legal technology that would pay a small monthly fee for membership in the coalition. We also envision a group of larger institutional supporters and investors with interests in shaping the overall landscape of law around UPL.

Second, the shield: upon facing an UPL action, coalition members would be permitted to trigger the assistance of the LID Fund. The program would deploy not only a preset insurance payment to support the litigation effort, but also would supply legal experts well versed in the law around UPL to guide the challenge. The upshot of this is that the LID Fund would provide insulation to its members from the risks around UPL, and assurance to their stakeholders. Simultaneously, it would support impact litigation in the legal technology space.

Third, the research: LID would be the center of a network of organizations working in legal technology and would be an organization involved in UPL challenges nationally. To that end, it would be able to provide ongoing research and policy work on the evolving state of technological innovation in the legal industry and the landscape of law surrounding the use of those technologies. [...]

So with that, this blog post officially puts out the call for willing hands to help launch this initiative: Would you support an initiative like LID? Would you take advantage of the kind of insurance that LID would offer to pursue a legal technology project or business? Do you know of an institutional supporter that would join this effort?

RR&H is seeking any and all assistance and advice as we make a push to turn this into a reality. We also intend to convene a meeting of interested parties in the near future – so get in touch by dropping a line to Keep your eyes on this space! [...]

For more details or to contact Tim, please see the complete post.

HT @RobotandHwang

Filed under: Calls for participation, Legal defense funds, Policy debates, Projects Tagged: Innovation in legal technology, Legal defense funds, Legal innovation defense fund, Legal technology innovation, LID fund, Robot Robot and Hwang, Robot Robot and Hwang Blog, Tim Hwang, Unauthorized practice of law, Unauthorized practice of law and innovation in legal technology, Unauthorized practice of law and legal technology innovation
Categories: Teknoids Blogs

No Agreement on Legal Aid Funding

slaw - Sun, 10/19/2014 - 16:18

Justice ministers from across Canada met in Alberta this week to discuss funding for legal aid, but no agreement was reached.

According to provincial justice ministers, legal aid used to be shared equally with the federal government. However, since 2003 there has been no new funding from the federal government, meaning any shortfall is left to the province. What that means is that in some provinces like Alberta, federal contributions to legal aid have dropped to 16 per cent.

Andrew Swan, Manitoba Justice Minister, said,

I don’t understand how a government in Ottawa that claims to be in support of law and order would take away something that’s been very, very valuable.

The importance of legal aid in promoting access to justice was recently highlighted by Ed Montigny of the ARCH Disability Law Centre,

At its most basic, access to justice means an appropriate level of assistance with legal issues for people when they need help to protect basic rights or needs.

These basic rights include housing, access to social supports and assistance, education, employment, medical care, child custody, spousal or child support, defending one’s autonomy or obtaining protection from abuse.

When issues of crucial importance to a person’s basic well-being are at stake, assistance should be available regardless of a person’s ability to pay or understand the relevant legal processes. Denial or obstruction of such assistance can take many forms—such as financial, social, or systemic barriers.

Some suggest that increasing legal aid would increase unnecessary litigation in society. This does not necessarily have to be the case, as Montigny explains,

In a perfect world, everyone’s legal rights would be understood and protected by all. And if a person’s rights were threatened and they required assistance to protect their rights, they would have access to competent legal advice and support regardless of their ability to pay.

A legal professional providing assistance would have the resources to devote as much time as they need to ensure an issue was dealt with, and to feel confident in providing high-quality services to their clients. Such services would include accommodation of needs related to disabilities, and an understanding of the social and economic position of clients.

Ideally, litigation would be required in only rare instances. When problems arose there would be a variety of options available to resolve conflicts and to protect rights. Mediation and alternative dispute resolution would be available as well as counselling and other options that do not require litigation.

Fundamentally, all decision-making processes would ensure that people feel they are heard and respected and that serious consideration given to their claim.


Categories: Teknoids Blogs

My Twitter Digest for 10/18/2014

<CONTENT /> v.5 - Sun, 10/19/2014 - 14:30
Categories: Teknoids Blogs

Summaries Sunday: SOQUIJ

slaw - Sun, 10/19/2014 - 06:00

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) : Les erreurs de la juge de première instance se rapportent directement à l’évaluation des conditions d’ouverture de la légitime défense et ont privé l’accusé de ce moyen de défense; il y a lieu d’ordonner la tenue d’un nouveau procès.

Intitulé : Dyckow c. R., 2014 QCCA 1812
Juridiction : Cour d’appel (C.A.), Montréal, 500-10-005169-121
Décision de : Juges Jacques Dufresne, Manon Savard et Martin Vauclair
Date : 3 octobre 2014

PÉNAL (DROIT) — infraction — infractions contre la personne — voies de fait — voies de fait simples — voies de fait armées — chaise — victime ex-conjointe — moyen de défense — légitime défense — provocation — intrus — appréciation de la preuve — versions contradictoires — crédibilité des témoins — tenue d’un nouveau procès.

Appel d’une déclaration de culpabilité. Accueilli; la tenue d’un nouveau procès est ordonnée.

L’appelant a été reconnu coupable de voies de fait simples (art. 266 a) du Code criminel (C.Cr.)) et armées avec une chaise (art. 267 a) C.Cr.) commises à l’endroit de son ex-conjointe. Il a admis avoir physiquement maîtrisé la plaignante pour la calmer et prévenir les coups. La crédibilité des témoins était au coeur du procès. L’appelant et la plaignante étaient de proches voisins. Ils ont un fils de trois ans. Alors qu’il s’était rendu chez elle pour effectuer une réparation, il a découvert un fusil en plastique et, comme il désapprouve ce type de jouet, il en a fait part à la plaignante, qui a répliqué. Une bagarre a suivi, au cours de laquelle ils se sont retrouvés au sol. À un certain moment, l’appelant aurait pris une chaise pour se protéger de coups de pied, puis il aurait posé celle-ci au-dessus des jambes de la plaignante. La suite des événements n’est pas contestée: l’appelant a téléphoné au service d’urgence 9-1-1 pour la plaignante puis a quitté la résidence de celle-ci.

La juge de première instance a commis deux erreurs dans l’appréciation de la preuve. D’une part, elle a conclu que l’appelant était un intrus au sens de l’article 41 C.Cr. Ainsi, cela fondait tout exercice de force raisonnable de la part de la plaignante et condamnait l’utilisation de celle-ci par l’appelant, qui ne pouvait soutenir avoir agi en légitime défense. Or, la plaignante n’a jamais demandé à l’appelant de quitter les lieux avant la fin de la querelle. Ayant été initialement invité par elle, l’appelant ne pouvait devenir un intrus avant d’être sommé de partir. D’autre part, la juge a erronément conclu à la provocation de la plaignante par l’appelant, qui, dès lors, ne pouvait plus encore une fois invoquer la légitime défense. La preuve ne supporte pas cette conclusion. Par ailleurs, c’est à tort que la poursuite soutient que ces erreurs sont sans conséquence et que la disposition réparatrice prévue à l’article 686 (1) b) (iii) C.Cr. trouve application. Les erreurs de la juge se rapportent directement à l’évaluation des conditions d’ouverture de la légitime défense. Par ailleurs, concluant que l’appelant était un intrus et qu’il avait provoqué la bagarre, la juge a abordé l’évaluation de sa crédibilité avec une prémisse erronée et préjudiciable. Il s’agit d’une erreur qui a contaminé son raisonnement. Enfin, la décision présente certaines difficultés dans l’appréciation du témoignage de la plaignante. D’autre part, à la lumière de l’ensemble de la preuve, on ne peut exclure qu’un juge puisse en arriver à prononcer un jugement de culpabilité. Par conséquent, un nouveau procès doit être ordonné.

Le texte intégral de la décision est disponible ici

Categories: Teknoids Blogs

Summaries Sunday: Maritime Law Book

slaw - Sun, 10/19/2014 - 06:00

Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at

This week’s summaries concern:
Constitutional Law/ Courts / Practice/ Aliens / Civil Rights / Criminal Law

Vilardell v. Dunham 2014 SCC 59
Constitutional Law – Courts – Practice
Summary: During the trial of a family action, the plaintiff asked to be relieved from paying the hearing fees imposed by the Crown. The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 434, determined the family law issues. With respect to the plaintiff’s request to be relieved from paying the fees, the court identified a potential jurisdictional problem and invited submissions from the British Columbia Attorney General, the Law Society of …

Iyamuremye et al. v. Canada (Minister of Citizenship and Immigration) 2014 FC 494
Summary: The applicants applied to be recognized as refugees or persons in need of protection (Immigration and Refugee Protection Act, ss. 96 and 97). The Refugee Protection Division of the Immigration and Refugee Board dismissed the application. The applicants appealed. The Refugee Appeal Division (RAD) dismissed the appeal. The applicants applied for judicial review of the RAD decision arguing, inter alia, that the RAD made a jurisdictional error. The Federal Court allowed the application and referred the matter for …

R. v. Conception (B.) 2014 SCC 60
Civil Rights – Criminal Law – Statutes
Summary: An accused was found unfit to stand trial. The presiding judge made a treatment order under s. 672.58 of the Criminal Code, requiring the accused to submit to anti-psychotic drug therapy. On being informed that no mental health treatment facility beds were immediately available, the judge stipulated in the order that the accused was to “be taken directly from Court to the designated hospital . … Accused is not to be taken …

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Salamanca and van Eechoud: Open Legal Data for Europe: Report on LAPSI-openlaws workshop

Legal Informatics Blog - Sun, 10/19/2014 - 04:02

Olivia Salamanca and Mireille van Eechoud have posted Open Legal Data for Europe, a report on a workshop organized by and LAPSI, at the University of Amsterdam, 4 September 2014.

Here is a description of the report, from a post at the openlaws site:

Open Legal Data for Europe: The EC funded project and the LAPSI thematic network project joined forces for a workshop on open legal data for Europe, hosted by the Institute for Information Law of the University of Amsterdam on Sep 4 2014. About 25 participants from academia, government, business and civil society discussed what the drivers are for opening up legal data for re-use in different jurisdictions and what barriers (perceived or real) exist. The outcome of the discussion will feed into the on-going work in the LAPSI network on legal barriers to re-use, and in the vision for Big Open Legal Data that will be developed as part of [...]

HT @openlaws

Filed under: Applications, Policy debates, Projects, Technology developments Tagged: Big Open Legal Data, Chris Marsden, Free access to law, LAPSI, Law as data, Legal open data, Legislation as data, Mireille M. M. van Eechoud, Mireille van Eechoud, Olivia Salamanca, Open legal data, OpenLaws,, Public access to legal information
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My Twitter Digest for 10/17/2014

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How Universities Turn Slogans Into Cash

The Chronicle Wired Campus - Fri, 10/17/2014 - 16:55

If you want to sell a T-shirt that says “Bring the Juice”—and who among us hasn’t?—you’ll have to clear it with Robert P. Cleveland.

Mr. Cleveland is director of trademark and licensing at Ohio State University, which has owned the trademark on “Bring the Juice” since 2012, along with several dozen other words and phrases.

The Chronicle just published a poem composed entirely of college-owned trademarks. I wrote it after combing through the federal trademark database to see if I could make a list of the weirdest ones. But there were too many, and a list wouldn’t have done them justice.

Of course, trademarks are big business for some colleges. Mr. Cleveland’s office pulled in $13.6-million through trademark licenses in the most recent fiscal year alone. The biggest portion of that money went to the athletics program, but the licensing office also disbursed $2.8-million to academic programs and more than $1-million to student affairs.

Owning a trademark doesn’t mean owning a monopoly on a word or phrase. When a college applies for a trademark, it has to specify what goods and services it sells (or plans to) with that mark, explains Steven McDonald, general counsel at the Rhode Island School of Design. The college must then continue selling those things in order for its mark to remain valid, he says.

In the case of T-shirts and other apparel, Ohio State has a “master apparel agreement” with J.America, a clothing company. So anyone seeking permission to sell “Bring the Juice” shirts would be out of luck.

But for other merchandise, you can fill out forms to apply for a license to trade on the university’s marks. In an email, Mr. Cleveland describes what happens next:

On the second Tuesday of each month we gather with our review board to review the application and samples. The board comprises a number of local retail buyers and two of our office staff. The buyers score the applicant on a scale of one to 10 and give us a feel for needs and opportunities in the marketplace. Three of our office staff gather shortly thereafter to do a final scoring assessment based on opportunity, quality/risk, experience, references, and finally the scores from the buyers.

And that’s how Buckeye Tartan™ cologne happens.

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My Twitter Digest for 10/16/2014

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