bob tarantino

Entertainment, Media and IP Law 03.15.09

New techniques: A couple of interesting stories this past week about emerging Canadian talent - David and Ian Purchase used YouTube to get noticed by Hollywood, and one-eyed Toronto filmmaker Rob Spence is planning on using a camera embedded in a fake eye to film a documentary about "the rise of global surveillance" (also here).

Flashpoint opens the door: One of the funny things about Hollywood is the herd mentality - if something works once for one guy, everybody's got to follow suit.  Thankfully, this time the trend is working in favour of Canadian film and television producers.

Defamed today, defamed forever: An interesting discussion over at slaw about whether the time period for launching a defamation action over an online publication should begin running from the first time it was placed online or whether it should start afresh every time the online publication is accessed regardless of how long that is after initial publication (in England, the answer is evidently the latter; in the US, the former).

New Media Fund? Meh: Concerns are expressed about the newly constituted Canada Media Fund and conflicts of interest.

Backstage blogging: Gordon P. Firemark muses on the dangers of letting talent talk about their work experiences while still on the job.

Fairey Use?  More discussion on the AP/Richard Fairey copyright dispute here (Knopf) and here (Wired).

ImageStamper: Plagiarism Today provides some in-depth coverage on an interesting new service which "stamps" a Creative Commons license onto digital images.

Inaccurate sales figures? Surely you jest: Clive Cussler ordered to pay nearly US$14 million to production company over misrepresentation of the number of copies his novels had sold.

The children are our future: Fascinating interview with Terry McBride of Nettwerk Music Group here.

CLB Media Presents

Cripes.  Step away from the blog for a few days to concentrate on writing an article, and everything goes completely bonkers.  Canadian Lawyer magazine and Law Times each have a whack of interesting things in them:

• "War of the Words" - a cover story on Richard Warman, Doug Christie and the ongoing battle against Section 13 of the Canadian Human Rights Act.

• A nice expose on the machinations behind changes to the governance of the legal profession in Ontario, shining a light on just how obstructive those intent on keeping things exactly the way they have been are willing to be (random examples: the task force created in 2006 to study the matter still hasn't delivered its report; reactionaries in the system are now fighting tooth and nail over the order of the process - debate issues and then solicit views, or solicit views and then debate the issues?).  The best moment is when a current bencher argues that the current governance structure is too complicated for even the lawyers who it governs to understand.  That such a conclusion is an argument in favour of its reform seems to have eluded everyone.

• Two really good articles on the future of lawyers and technology: "Lawyering for the Future" and "Lawyer strikes chord with online DIY divorce"

Lawyers and Professionalism

Christopher Whelan has published an interesting article about the confluence of "professionalism" and the business realities of practicing law (particularly at large commercially-oriented firms) in the 21st century.  The abstract:

This article outlines the contrasting 'professional' and 'business' visions of legal practice and the lawyer's role in society. It sets out the regulatory 'maze' that had developed in the UK prior to 2007, reflecting the unresolved business/profession dichotomy. In 2007, radical and revolutionary reforms were introduced in the Legal Services Act. The reforms appear to signal an end to professionalism, the final intrusion of the marketplace into legal services, and the victory of the business vision of legal practice. However, I argue that a closer analysis suggests that a new vision of legal practice has been created specifically - and paradoxically - with global law practice in mind. Law should be both a business and a profession because professionalism is good for business! Global law practice has been reconstituted as a hybrid: business and profession.

The article also provides an excellent primer on the recent history of regulatory reform of lawyers in England.

"the answer is likely to hinge"

It is heartening to read of the efforts being made to "restore" (perhaps properly rendered as "imbue") an ethic of professionalism to the practice of law:

The story is symptomatic of a worrisome trend – the erosion of professional standards as billings take precedence over the long-term development of proficient, ethical, well-rounded lawyers. With public criticism of the legal profession on the rise, a call for more exacting professional standards has taken on new urgency.

The first task for proponents of the professionalism movement has been defining what they mean. By consensus, it appears to boil down to civility; mentoring; continuing education; maintaining client confidentiality; avoidance of conflicts; and maintaining independence.

“It has to do with the notion that being a lawyer does not mean simply holding a job,” said Ontario Court of Appeal Judge Stephen Goudge, a moving force in the campaign. “This is about being part of a profession that is given a stature and a certain prestige and, in return, includes a significant service component.”

Evidence is mounting that the movement is more than hot air. The Law Society of British Columbia recently became the first regulator to mandate compulsory continuing education for lawyers. Others intend to follow suit, including the Law Society of Upper Canada, which will make extra training compulsory for lawyers in their first two years of practice.

Institutes have also sprung up, such as the Chief Justice of Ontario's Advisory Committee on Professionalism and the University of Toronto's Centre for the Legal Profession.

... Those who are pushing professionalism must come to grips with a business model of law that places a premium on retaining clients. As Cornwell University law school professor Brad Wendel told a U of T symposium on professionalism last week, sharpening your ethical acuity can be difficult when you are “maniacally billing 2,200 hours a year.”

... Notwithstanding the professionalism movement's focus on lofty motives, there is also a defensive undertone to it all. The profession is undeniably under siege.

... The profession is fighting a potent narrative line alleging that the practice of law has declined from a golden age – when lawyer-statesmen operated with a communal sense of honour – into a grubby little trade whose practitioners scrap for the right to gouge clients.

While the effort is admirable, I can't help but envision it as an exercise in pushing a very large boulder up a very steep incline.  Practicing law has always been, in part, a business endeavour, but what is particularly troubling is the privileging of the business component over all other considerations - which, to be clear, is really the only way to account for the mega-firms which lumbered across the terrain over the last thirty years.

As many concerns as that development raises, however, there is a much more erosive factor at work - the same corrosive mentality which prompts a "deep spiralling funk" on the part of Ontario Court of Appeal Judge Stephen Goudge, one which the profession is in danger of completely overlooking.  And it is this latter matter which is much more important for the future of the profession - the public standing of lawyers (see this [pdf] 2003 Ipsos-Reid survey for a sense of how low public trust in lawyers and the judiciary is) is impacted hardly at all by the "work-life" balance maintained by lawyers, how civil they are to one another or whether the bizarre intricacies of conflict interest rules are observed in the types of corporate cases which impact a marginal handful of clients.  Which isn't to say that the foregoing items aren't worthy of attention - but if you want to address the plunging level of public confidence in the profession, if you want to ensure that self-regulation continues, then effort needs to be expended on what actually tends to enrage individual members of the public (the very people, it unfortunately needs to be repeated, whose best interests the profession is charged with protecting): lack of access to legal representation at affordable prices; the perceived coddling of incompetent, untrustworthy and outright criminal lawyers; and the lack of innovation, transparency and accountability in the governance of the profession.

The Transformation of the Legal Journal

The Durham Statement on Open Access to Legal Scholarship (signed by law librarians at some of the largest US law libraries) calls for the transition of all law school legal journals from print to digital publication.  There are a variety of rationales for this (cost savings, shelf room) but the obvious one is that there's simply no need to retain the print version of law journals: most titles are available via online sources (HeinOnline, LexisNexis, etc.) and those online sources are vastly preferable to paper versions for research purposes (searchable, accessible anywhere, etc.) - if you need a paper copy, just print it up at your desk, rather than lugging a small brick over to the photocopier and trying to get the margins correct so things don't cut off 3/4 of the way through the page.

This also follows a "dramatic decline" in the number of paid subscriptions to some law journals.  The Law Librarian Blog posited a number of likely causal factors for the decline, of which online availability is only one: falling alumni subscriptions, lack of relevance to practitioners and declining subscriptions from courts and law firms (which themselves are likely prompted by online availability).  As noted by the Law Librarian Blog, the sheer ubiquity of law journals perhaps plays some role as well: it is absolutely staggering how many law journals are out there, and how many articles are published each year.  There may be a psychological factor at play in some cases: devoting funds to a particular journal can seem almost futile.

Bu the greatest potential in the nascent movement heralded by the Durham Statement is actually buried a bit in the Statement itself:

Additionally, and potentially most importantly, a move toward digital files as the preferred format for legal scholarship will increase access to legal information and knowledge not only to those inside the legal academy and in practice, but to scholars in other disciplines and to international audiences, many of whom do not now have access either to print journals or to commercial databases.

I think that's actually a little bit coy: the goal should be to increase access to everyone outside "the legal academy and practice", not just "scholars" or "international audiences" - laypersons right here in Canada or the US should have free access to journal articles as well.  The unspoken problem with just moving publications to digital formats is that access writ large is not addressed: even if articles are on HeinOnline or LexisNexis, having an academic or firm subscription is still critical in order to get inside the walled garden.  Which is why this statement by Wendy Reynolds at slaw is so critical:

I’d also love to see the functionality of CanLII extended to include secondary literature - either by scraping websites, or by functioning as a permanent repository for this material.

Now that would be revolutionary (for those who aren't familiar with it, CanLII (the Canadian Legal Information Institute) is a website which provides completely free access to Canadian caselaw, statutes and regulations (including powerful search functions and noting up features).  Run by the Federation of Law Societies of Canada, CanLII's goal is "to make Canadian law accessible for free on the Internet".  There are, of course, immense cost, time and copyright issues which would come into play in the endeavour of making journal articles available on CanLII, but hopefully we are moving in that direction.

"the battle lines have been drawn"

The latest installment in Maclean's magazine's ongoing look at the legal profession in Canada is here, and it's an absolute must-read for anyone interested, even marginally, in issues surrounding the future of the legal profession, self-regulation and legal ethics.  Excepts really just won't do it much justice, but here's something worth pondering:

Law societies don’t just restrict other providers; they do it to their own members, too. Lawyers’ ability to advertise, for example, is limited. As noted in the Competition Bureau report, the Law Society of Newfoundland and Labrador forbids its members from advertising discounted prices. Yukon’s law society prohibits lawyers from using photos, logos or symbols, and restricts the size of lawyer advertisements (their restrictions are currently under review). In several provinces, lawyers can’t advertise their fees compared to other lawyers. Not only do such rules hinder the public’s ability to shop around, “they create less incentive for lawyers to be innovative” in the services they offer, says Chris Busuttil, director of advocacy coordination at the Competition Bureau.

This, however, remains my favourite quotation from the piece:

Just like government, law societies work in the public interest, says Derry Millar, treasurer of the Law Society of Upper Canada: “We elect politicians to sit in Parliament, and [they] run programs for the public benefit.”

They sure do.

A variety of works from Wesley Pue, who is cited in the Maclean's article, can be found here - many of them relate to self-regulation, which is really the central locus of the debate; helpfully, Wue provides comparative analyses to other common law jurisdictions (which, it should be noted, with the exception of the US, have been moving away from allowing lawyers to regulate themselves).

U of T Centre for the Legal Profession

Like a big dope, when I wrote this post and queried where the Canadian equivalent of Stanford's Center on the Legal Profession was, I completely managed to overlook the University of Toronto's own Centre for the Legal Profession.  The U of T CLP has lots of good stuff at its website, including this paper by Adam M. Dodek, which surveys academic writing on Canadian legal ethics (which includes lots of jumping-off points for anyone looking to do graduate work in that area).

The U of T CLP is also hosting (on Friday, February 20, 2009 - i.e., today) a Symposium on Lifelong Learning in Professionalism which will be webcast.  (Personally, I think that for purely alliterative purposes it should have been called the symposium on "Lifelong Learning in Lawyering".)

'left really with no other option"

An excellent illustration of just how tenuous the grip of "legislation" is on the behaviour of governments:

B.C. Liberals rewrite vaunted balanced-budget law

The B.C. Liberals returned to the legislature Monday to rewrite their championed balanced-budget law to clear the path for a deficit budget next week.

Yes - because when the law says something inconvenient, it's awesome to just, you know, change the law.  It must be nice to have the ability to alter the rules governing the performance of your job as you see fit and when you see fit.

Photographs and Privacy

Via the Canadian Privacy Law Blog, news that the European Court of Human Rights has ruled (in Reklos and Davourlis v Greece) that a minor's right to respect for "private life" was violated when a hospital hired a photographer to take pictures of a baby without first obtaining the consent of the parents and then also refusing to give possession of the negatives to the parents. 

The decision itself is available here (only in French).

The press release (in English), which includes a description of the facts of the case, is available here.

The privacy right which was violated is contained in Article 8(1) of the European Convention on Human Rights:

Everyone has the right to respect for his private and family life, his home and his correspondence.

That right is subject to the limits contained in Article 8(2):

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

No similar decision is possible in Canada pursuant to the federal Charter of Rights and Freedoms (which doesn't recognize an explicit right to privacy), but the ECHR decision is very similar to that in the Supreme Court of Canada decision in Aubry v. Éditions Vice‑Versa, [1998] 1 S.C.R. 591, which recognized that the right of privacy accorded pursuant to section 5 of the Quebec Charter of Human Rights and Freedoms includes a right of control over the use of one's image, even if, as in Aubry, that image is photographed in a public place:

The right to one’s image is an element of the right to privacy under s. 5 of the Quebec Charter. If the purpose of the right to privacy is to protect a sphere of individual autonomy, it must include the ability to control the use made of one’s image. There is an infringement of a person’s right to his or her image and, therefore, fault as soon as the image is published without consent and enables the person to be identified.

In Canadian jurisdictions outside Quebec, I'm not aware of any similar decision based on their provincial privacy statutes (the existence and extent of coverage of which varies from province to province) (though certainly the wording of some of the statutes is broad enough to contemplate a similar result), and no similar decision could be made under PIPEDA.

UPDATE: I should probably clarify what it is that is so, to use an imprecise term, radical about the ECHR decision from the standpoint of Canadian law (outside of Quebec): the breach of the privacy right is evidently not predicated on a "commercial use" - in other words, it appears to have been the taking of the photograph itself, and not any subsequent use of the photograph, which violated the privacy right.

"this course is unique"

Jeremy de Beer offers a look at the kind of innovation which can be unleashed when a motivated prof meets enabling technology.  Looks awesome.  What's particularly interesting is that the course he is offering ("Global Intellectual Property Policy and Social Justice") is a first year course, part of "an innovative curriculum reform at the University of Ottawa" - whereas traditionally first year course offerings are limited to "black letter" law (e.g., contracts, torts, criminal, etc.), it looks like Ottawa is trying to broaden the palette.  It will be interesting to see how that works out (assuming any kind of programmatic review is being undertaken).

Hit by the Bus

Dan Pinnington, over at slaw, has a useful post containing some links with tips on matters to consider if the unthinkable happens and you (in this case, you being a lawyer) "become disabled or pass away unexpectedly".  Unfortunately, most of the tips and hints contained in the links really consist of "big picture" advice - winding down a practice, transferring clients, etc.  They don't take into account the most immediately pressing matters when a lawyer suddenly becomes incapacitated: what do we do about this file/transaction which is occuring right now?

I've thought for a while now that this is a prime function that internal wikis could perform.  The title of this post comes from a thought, admittedly morbid, which sometimes strikes when you're in the middle of a transaction, whether complicated or not: what happens if X gets hit by a bus?  Particularly in a law firm environment, where multiple lawyers are working on a single file, each individual inevitably builds up a collection of "soft" knowledge about the file - impending deadlines, who to call at the client to get instructions about particular matters or obtain particular pieces of information, the exact status of negotiations on a particular agreement, etc.  If one of the lawyers suddenly drops off the file (i.e., gets hit by the proverbial bus), what happens to all that knowledge?  How do the other team members try to re-assemble and take advantage of that knowledge (which might be scattered through various hand-written notes, emails, draft documents or, even more likely, just "held in the head" as it were)?

Internal wikis can try to plug that gap - if all members of the team are disciplined about contributing to the wiki, it can form at least part of a common knowledge repository which all team members can rely on in the event something goes awry.

Choosing a Law School

Olaf, he of The Prairie Wrangler, has options to attend at a slew of law schools, prompting the question(s):

I need to know which one is better.  In particular, would obtaining a degree from one or the other help smooth my transition into furthering my education?  So, if I wanted to apply to Harvard or Oxford three years down the road, would it make any difference whatsoever which of the two Canadian schools I chose?  Conversely, I’ve gotten a bunch of fee waivers from some US top 14 law schools: which would be considered more prestigious/substantial in an international setting: a University of Michigan or Northwestern JD degree, or a University of Toronto Degree?  Would it even make any difference?  And so on.

A flood of comments, including one from me, ensues.  A number of pertinent considerations are raised by a variety of commenters, so for anyone who is in a similar position, i.e., trying to decide amongst which law schools to attend - or graduate schools more generally, it's well worth a gander.

"fielding desperate calls"

One of the consistently amazing things about the ongoing debate in Canada regarding access to justice is the absolute insistence of the organized legal profession that they have virtually no responsibility for addressing the matter - or at least no responsibility which would extend to impinging on the protected privileges of the profession.

This Maclean's story is telling: as the article details, part of the cause of increasing (and increasingly unaffordable) legal fees in Canada is the artificial restriction on the supply of lawyers - as even the Chief Justice of the Supreme Court of Canada has repeatedly stated, the lack of affordable lawyers is an "acute" crisis.  The numbers are restricted by the provincial law societies, who impose the regulations which admit individuals to the practice of law.  One of the mechanisms used to artificially depress the number of lawyers is the number of law students graduating each year: as the Maclean's piece notes, the number of law school places available in Canada on a per capita basis is significantly below the numbers in comparable countries, and worse, the number of places hasn't meaningfully budged in decades.  This is hardly unique to the legal profession - Canadians are now in the throes of a similar healthcare crisis because our governments made the brilliant decision about twenty years ago to drastically limit the number of doctors graduating, evidently not accounting for the fact that populations in industrialized liberal democracies have this bizarre tendency to increase as the years go on.

The response of the profession?  "Pfffffttt - not our problem."  The Law Society of Upper Canada harrumphs that it is "simplistic to think that the high cost of legal services and problems of access to justice can be solved by simply adding more lawyers to the market" - it's a bit unclear who is saying that the problem could be solved by adding more lawyers, but surely the onus is on the Law Society to demonstrate why it would be a bad idea to add more lawyers.

And buried in that last sentence is the core truth of what this is really about: dereliction of duty on the part of the legal profession.  Over at slaw, the point manages to get entirely overlooked:

"controlled entry can make sense (whether or not it’s fair to entrants or the public) to the regulators"

No - controlled entry cannot make sense "whether or not it's fair to entrants or the public".  The entire animating purpose of the legal profession, of any profession, is that it act in the public interest.  If something is "unfair to the public" then it is not a course of action which the "regulators" (i.e., the law societies) are entitled to undertake.  This is not an option - it is an obligation.  The protection and promotion of the public interest is the entire animating principle for the privilege of self-governance accorded to the legal profession.

Section 4.2 of the Law Society Act (Ontario) provides as follows:

In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:

1. The Society has a duty to maintain and advance the cause of justice and the rule of law.

2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.

3. The Society has a duty to protect the public interest.

4. The Society has a duty to act in a timely, open and efficient manner.

5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.

Notice anything missing there?  Right - there's nothing about protecting the market position of current lawyers.  Zero.  Full responsibility for the regulation of the legal profession has been devolved to the profession itself on the condition that it exercise it's responsibilities in accordance with its fundamental duty to protect the public interest.  The public interest is manifestly not being served - every piece of empirical evidence indicates this, the clamour from the public, the judiciary and members of the bar itself keeps increasing and yet... and yet.  The acute crisis continues on.  Obvious and easy solutions, even if only partial solutions, are dismissed out of hand.  At some point this will all catch up with the profession - continued dereliction of duty by the organized bar will be met with the response that the principles of governance in a liberal democracy demand: the privilege of self-regulation will be revoked.

Police Misconduct and Evidence

A judge of the Ontario Court of Appeal said he worries Canadians will treat the Charter of Rights and Freedoms with disdain if courts routinely throw out evidence of serious crime because it has been obtained through police misconduct.

Speaking at a legal symposium in Toronto yesterday, Justice Michael Moldaver said it's time for courts to develop a more "nuanced" approach to deciding whether a prosecution should grind to a halt when police break the rules.

The article goes on to describe the response of Frank Addario, president of the Criminal Lawyers' Association, thusly:

... unless judges are prepared to make the tough calls and throw out evidence obtained in violation of a suspect's constitutional rights, there's little chance police will stop breaking the law.

Instead, "the message (from the courts) is, 'Whenever police are going to investigate a serious crime, take chances with civil liberties, cut corners – if you hit the jackpot, we will reward you by admitting the evidence,' " he said.

Both concerns are absolutely correct.  Both concerns are also absolutely incorrect in their proposed solutions to the issue.  What is happening is a disconnect between the policy goals and incentives which are being offered and the impact on society - namely, the mechanism devised to keep police officers "in line" is directed not towards police officers, but towards society at large.  In other words, if a police officer violates the Charter, does the police officer face any direct sanction from the court or his or her employer?  No.  Instead the evidence is excluded and the case usually collapses.  Does that affect the police officer in any meaningful way?  No.  But it does mean that potentially dangerous individuals, i.e., the accused in the case, are let off with no sanction.

Arguing that this is a non-sensical result is hardly restricted to one or the other side of the ideological divide.  Whatever else someone wants to say about Alan Young, "raving rightwing lunatic" doesn't often enter the conversation.  In his book Justice Defiled: Perverts, Potheads, Serial Killers and Lawyers, Young makes a similar argument to that offered by Justice Moldaver: why should the rest of us have to pay the cost in terms of diminished security because some police officer screwed up?  Shouldn't he or she be the one held responsible?  Why should a(n accused) criminal garner a windfall (in the form of a stayed prosecution) if the Charter was violated during the course of an investigation?

The resolution to this issue lies not with the judiciary but will instead be a political one: Charter violations should result in sanctions against the officer who committed the infringement - that helps root out officers who aren't respecting Charter rights and preserves the ability of the courts to effectively try suspects.  Heck, if necessary expedite private rights of action against the government for Charter violations - but don't let a broken mechanism act to the discredit of the entire apparatus.

Illegal Sex in Canada

As the Globe reports, effective Thursday, May 1, 2008, the age of consent for sexual intercourse in Canada will rise from 14 to 16.  Unfortunately, the government missed an opportunity to rectify a glaring incongruity in the Criminal Code: the criminality of anal sex.  As I detail in Chapter Four of Under Arrest (*ahem*), Section 159(1) of the Criminal Code makes it a crime (punishable by up to ten years' imprisonment) to engage in anal sex.  Which, if I might be permitted some bluntness, is retarded.  I digress. 

In addition to being nonsensical on its face, the law then gets wince-inducingly complicated.  Introduced in 1969, Section 159(2) carves out certain exceptions to the general prohibition: anal intercouse between (a) husband and wife or (b) two people both of whom is over 18 years of age.  Which means it is still illegal for two people under the age of 18 to engage in anal sex.

There's no apparent justification for this prohibition.  When the issue was last addressed by Parliament in 1988, the only pseudo-argument the government was able to come up with was that the prohibition was required to assist in preventing the transmission of the AIDS virus.

To make things even more absurd/interesting, Section 159 has been declared unconstitutional and of no force or effect in at least two provinces.  In Ontario, the Court of Appeal (in R v M(C) (1995), 98 CCC (3d) 481 (Ont CA)) declared the section to be unconstitutional and of no force or effect.  In Quebec, the Court of Appeal (in R v Roy (1998), 125 CCC (3d) 442 (Que CA)) declared the section to be unconstitutional and of no force or effect.  In Alberta, a decision of the Court of Queen's Bench (R v Roth, 2002 ABQB 145) declared the section to be unconstitutional and of no force or effect.

And yet the law remains on the books.  To summarize, Section 159 is of no force or effect in Ontario, Quebec and most likely in Alberta.  Elsewhere, homosexuals under the age of 18 (or heterosexuals under that same age (or even a 19 year old and a 17 year old) who are inclined to... er... explore) still face the very real possibility of criminal prosecution.  Quite why that should be the case is something that no federal government, Liberal or Conservative, has been forced to answer.  Which is a shame.

"ensure that the present opportunity to become more seriously democratic is not lost"

As noted over at The Court, the question of the judicial appointments process to the Supreme Court of Canada will shortly be engaged yet again.

"[the] pertinent question is by what process will the selection be made? The answer could have a profound effect on the future of Supreme Court appointments in Canada, and more broadly on the relationship between the judiciary, the legislature and the public."

We should be so lucky.  To my eye, no one in Canada does a better job of articulating the deficiencies in the current appointments process, and explaining the fundamental democratic criteria which mandate an overhaul to make it more participatory, than Allan C. Hutchinson.  This piece, penned nearly three years ago when the appointments issue was being (badly) addressed by the Paul Martin government, is worth clipping and saving - read the whole thing, but here's a taste:

The Canadian process is much more low-key, bureaucratic and impersonal. The Prime Minister still has the final say, but, under the newly-reformed process, he or she has a limited list of candidates to choose from as a result of parliamentary and broader consultations. However, once a decision has been made, there is no opportunity for the public quizzing or rejection of the selected judge. It is a done deal with the empty and belated gesture of the Minister of Justice vicariously facing questions about the new judge.Yet the appearance of democratic input in the Canadian process is belied by the reality of the closed-doors decision-making which actually shapes the process and ultimately controls it.  It is thought that the dignity of the appointment and general judicial process is too seriously jeopardized by a more open process; judges and the legal system generally must be protected from a more robust and public scrutiny which the American appointees and courts must undergo.

This is a sad state of affairs by any lights, let alone in the actual conditions of the contemporary Canadian polity and the increasingly central role of its courts. If democracy is about anything, it is about increasing public involvement in the exercise of political power. While there are a few occasions in which confidentiality and even secrecy are justified, the appointment of powerful and unelected officials is not one of them. Democracy demands more and its citizens should expect more.

Despite Canadian contentions, the Supreme Court of Canada is as political and its decisions as controversial as those of its American counterpart. The divisions may not be as stark, but that is more a matter of style than anything else. Canadians, especially the judicial community, are much more polite and backroom in their disagreement; not washing dirty linen in public remains a guiding principle of too much Canadian politics.

Launch of Osgoode Hall Review of Law and Policy

Shouts to the Osgoode Hall Review of Law and Policy, which recently launched an "online legal journal", which aims to "highlight jurisprudential and legislative activities in Canada and other parts of the world".  The inaugural issue can be viewed here (.pdf), and includes a piece from David Vaver doing what he does best (i.e., offering his incisive and comprehensive thoughts on IP law).  What makes the OHRLP particularly note-worthy is its commitment to taking advantage of the technology available to it: online, searchable, RSS feeds, a discussion forum - some of the features aren't yet functional, but it augurs well for the future.  The ability (and apparent commitment) to publish material "without the delays associated with print publications" is just one of the exciting aspects to be celebrated.