The Friday Fillip: Strong Verbs

Verbs like “heave” or “shove,” “endure” or “conquer”?

Nope. More like “be” and “do” and “let.”

I chanced on the word “gat” recently. Not the gun slang, though; rather, a past tense of “get.” It came in a passage from the King James version of Ecclesiastes (the “there is no new thing under the sun” book; a short, well-written, skeptical blast worth reading in full):

2:8 I gathered me also silver and gold, and the peculiar treasure of kings and of the provinces: I gat me men singers and women singers, and the delights of the sons of men, as musical instruments, and that of all sorts.

Of course, the cunning translators of the King James version of the Bible deliberately chose language that was even then archaic-sounding, in order to give the version the authority that sometimes comes from the past. So “gat” is long gone in favour of “got.” Even so, it caught my eye and surprised me a little. Though it perhaps ought not to have, given the famous litany of Biblical “begats,”.

This got me thinking about the way in which some verbs form their past tenses in unpredictable ways, instead of by simply adding -ed to the end of the present tense, as we do with “regular” or “weak” verbs. This is one of the things that makes English both an easy and a hard language — easy because the vast majority of verbs are of the regular kind; and hard because there’s no real way to predict how the past will look when it comes to “irregular” or “strong” verbs.
[got - got - got or gotten / think - thought - thought / make - made - made]

(English is easy as well because nouns lack gender, instead of having two like French or three like German, though pronouns are an exception. And, too, unlike those in many other languages, nouns in English aren’t inflected depending on their function in a sentence: a horse is a horse, whether you “ride the horse”, “the horse rides you,” you go “to, with, by or from the horse” or call out “Oh, horse!” Again, pronouns are different here, causing no small amount of trouble: people have a hard time saying such things as “between him and her” or “to him and me” — but that’s another story.)
[have - had - had / say - said - said]

There are lists of strong verbs in English, numbering somewhere in the low hundreds, depending on how you decide what counts as a word. (See, for example, this list.) But I’ll bet if you asked English speakers how many irregular verbs there are, they’d almost always come up blank: they’re just something you know; you didn’t have to learn a list of them, as you might if you were learning a foreign language.
[bet - bet - bet / come - came - come / know - knew - known]

To make matters more difficult, some strong verbs are growing weaker over time and there’s uncertainty about which is the “proper” or desirable form. For example, I learned to say “dived” rather than “dove,” because “dove” was old fashioned and on the way out. But you still hear it about half the time, it seems to me. And then there’s confusion at times about which form a strong verb should take. I’ll say — and regard as correct — swim – swam – swum; but you’ll hear a lot of swim – swum – swum. Similarly, I learned sink – sank – sunk and drink – drank – drunk; but others learned sink – sunk – sunk and drink – drunk – drunk.
[make - made - made / grow - grew - grown / hear - heard - heard / say - said - said / hear - heard - heard]

And sometimes a form of a relatively rare strong verb is simply unclear even to those who study such things. A while back there was a fascinating discussion over on Language Log about whether there is a past participle of the verb “stride” (in principle there has to be), and if so, what it is exactly as determined by usage. Is it stride – strode – strode or stride – strode – stridden?

Then there are the treacherous “lay” and “lie,” the diabolical cousins among strong verbs. I’m a recovering prescriptivist and I have more bite marks on my tongue from these verbs heard in the wild that from anything except for the Great I-Me-(and Myself) Confusion. There will likely be some hidden regularity to the mistakes in usage that will, eventually, reform the way everyone handles these words, but at the moment it seems to me as though confusion reigns and when most people come up hard against the past forms of either of these verbs they boggle like a frightened horse and land on a form at random. (Oh, horse!) Actually the trouble starts in the present tense, and I blame Bob Dylan (“Lay, Lady, Lay”) and Eric Clapton (“Lay Down Sally”) — which is about as much use as blaming Dickens for screwing up with “Our Mutual Friend.” In case you’re uncertain about the LIE of the land here, I refer you to this site, which might help, though my tongue and I despair. Strongly.
[lay - laid - laid / lie - lay - lain]

Do You Want to Know a Secret?

It was some time ago, while reading a few articles and columns offering opinions and insights into the legal and professional information publishing industry, that I perceived the extent to which the bonds between the employee and company appear, unfortunately, to have weakened.

Now just to put that into context, personally and subjectively, I believe that corporate loyalty can be much over-rated and more often than not is encouraged as a means by which to exploit workers. I’m much happier with the idea of a contractual relationship of obviously unequal parties in which each owes the other legal and ethical duties, with a fair day’s work for a fair day’s pay being a reasonable standard to which to operate. I suspect, however, that the sum total of all those criteria, applied to a high and consistent level by all concerned, is relatively uncommon. The ease with which so many companies, including legal publishing ones, see the laying off of their loyal staff as the first rather than the last solution to profit retention, has created a climate of fear and occasionally, hatred, so that the idea of loyalty and fidelity have little place. I think it is a pretty innocent and unworldly middle ranker who sings the metaphorical company song, cheers too readily for the team and takes enormous pride in the boss’s family name, more than to his or her own.

That said, there are proper duties of confidentiality and fidelity and it is indicative of something unpleasant when they appear so often to be avoided by either or both sides. It is sometimes even surprising to read the negative comments about the major professional publishers, when the criticisms come, of necessity anonymously, from current insiders. A regular source of such insights is, of course,, which is justifiably trusted for its standing in the market and the assurance it provides that whistle-blowers’ identities will be protected. Sean Hocking certainly is never short of existing employees, never mind the former ones, who are able to express their frustrations through him. A few references below are as typical as any:

It would be easy to dismiss all this, and to some extent this must be done, as just a few sad, bitter and twisted, low-ranking third-raters having a go at the system but in my opinion, to do so would be disingenuous. I have no difficulty myself in encountering professional publishing industry current employees at many levels of seniority, who are desperate to find an outlet for their frustration, in the hope that their voices will be heard and improvements will be made. The era of trade unionism has gone, to a great extent, in UK legal publishing, though Lexis-Nexis UK’s National Union of Journalists’ chapel remains a negotiating entity. The extent to which such a channel to senior management has reduced may have created a need to find other ways to express opinions. Not that there were especially better times in the past, I would stress. They were just differently challenging and at the same time rewarding.

Another extremely important change has been the shining of light into dark places in the professional publishing industry thanks to Slaw and other media. As has been pointed out elsewhere, a positive aspect of the past few years has been the focus on poor customer service, pricing policies, profitability and strategic decision making. These seem to me to be areas in which the views expressed by those who care about the legal publishing industry have been most beneficial, particularly when combined with highlighting, in a positive way, areas of best practice that can be identified.

In my experience, with few exceptions, those who make their criticisms known, even covertly and who take the time and trouble to express them in an analytical, structured and balanced way, as is usually the case, really care about their industry and companies. Now and again, at the very top of their hierarchies, where there is less to be gained from going off-message, there are critics who tend to be senior executives who have taken financial and other rewards from their careers, but at a cost. They see how much better things could be for the majority of stakeholders and that incompetence, inefficiencies and bad practices serve in the interests of very few people, not including employees, ordinary shareholders and customers. As one insider reminded me, if all that matters is maximizing the share price and you hold a great number of shares and options, your primary focus will probably be on that protecting and growing that price.

There is no doubt that such comments and the practices to which they relate do not apply exclusively to the legal and professional publishing industry. However, the fact that and extent to which they do, serves in part to measure any malaise that exists within it. Whereas, up to, say, the early-1990s when legal publishing delivered greatly above average profitability and solid growth that resulted in little fear of redundancy derived from financial downturn, since then, some employees’ uncertainty and anxiety have persisted, arguably for understandable reasons. For example, David Worlock, the respected digital strategy advisor and consultant, imagines that the large legal information providers will seek to migrate through acquisition into the workflow outsourcing business, even though they are inclined also to outsource all their own internal functions, presumably contracting publishing industry jobs even further. In the earlier days in question, the problem was often one of old-fashioned and simply bad management that may sometimes have been abusive, criminal, stupid, secretive, greedy and discriminatory, thereby requiring the checks and balances of trade unionism and protective laws. Once the laws were to a certain extent in place but times became tougher, sometimes the management tactic became to use such tolerances and, arguably, weaknesses in them against employees, hence avoiding any notion of job security. Combine this with senior management that comes and goes with frightening regularity, the latest being there to pretend to clean up the mess of the previous one, until they too are found out and the circle continues. No wonder the only course of action is to keep one’s head down, retain an inane corporate smile and quietly spill the beans and air the concerns in the vain hope that positive changes might someday occur.

It would be nice to think that in a relatively civilised industry such as is legal and professional publishing, where most people are thoughtful, intelligent and decent, that there would be little place for behaviours that may be considered sneaky and underhand. The problem is, in an industry in which, especially in consequence of takeovers, skills can be sold to only a few employers, when you witness the mad, bad, sad and latest bonkers fad that’s driving your business and realise you’re being had, what else can you do?

UofT Professor Kent Roach on Canadian Counter-Terrorism Law

Well-known University of Toronto law professor Kent Roach has reacted to this week’s two terrorist attacks in St-Jean and Ottawa with a post about The Canadian Terrorist Attacks and Canadian Counter-Terrorism Law on the US-based Just Security website.

Roach’s text examines some of the existing powers in the Criminal Code that can be used against suspected terrorists, and discusses the issues surrounding proposed amendments that would expand powers of Canadian intelligence services.

Roach is the author of The 9/11 Effect: Comparative Counter Terrorism Law (Cambridge University Press, 2011).

He served as research director for the commission of inquiry into the 1985 terrorist bombing of Air India Flight 182 and on the research advisory committee of the commission of inquiry into the extraordinary rendition to Maher Arar to Syria.

Just Security is based at the Center for Human Rights and Global Justice at New York University School of Law.

Thursday Thinkpiece: Oliphant on Creeping Monism in Charter Interpretation

Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.


Benjamin Oliphant
APPEAL: Review of Current Law & Reform Vol. 19, no.1 (2014): 105-129

Excerpt: Part II

(Footnotes omitted. They are available in the online version via the link above.)


A number of critics have suggested that the Court’s use of international human rights law is often confined to those provisions and interpretations that appear to support a conclusion at which the Court has already arrived. The Court’s framework for the use of international law has been called “imperfect at best, and improvised at worst,” “inconsistent and even unintelligible,”90 “troublesome and confused,” and “unpredictable.” In fairness, it should be noted that the Court’s reasoning might have reflected the various emphases on the importance of international human rights law and norms by counsel, the different approaches of different judges, or principled distinctions lurking in the background that have not been systematically revealed in the written reasons. Whatever its source, the apparent inconsistency identified in the case law cannot help but sow confusion; it is not clear from the outset whether the Court will consider such laws and norms to be irrelevant, conclusive, or somewhere in between. It seems clear that this inconsistency is sustained by the confusion surrounding the theoretical basis for the use of international law in the context of Charter interpretation. The remainder of this paper will attempt to identify the potential fault lines in the debate over the use of international law in the context of Charter interpretation, and propose some principles and guidelines that may lead to the more consistent use of such materials in the future.

A. Abandoning Presumptions of Compliance

From the outset, it should be emphasized that there is a potentially large conceptual gap between suggesting that the courts must apply a ‘presumption’ that relevant international human rights norms are effectively incorporated into the Charter, and considering international laws and interpretations relevant and persuasive as the context warrants. In the former case, it would be incumbent on courts to identify any germane international human rights documents, apply that meaning to the relevant Charter provision, and then either accept that definition or seek to rebut it by meeting an unknown standard. By contrast, where international human rights norms are considered ‘relevant and persuasive,’ they may simply be among the matrix of factors that the court might consider helpful in the course of resolving issues involving the content of specific Charter rights and freedoms. The survey above suggests that the Court has tended towards the latter in practice, but has at least rhetorically adopted the former.

Stephen Toope has argued that this tendency is unfortunate, and suggests that the distinction between the two standards—a presumption on the one hand and persuasive sources on the other—was quite deliberately made. According to Professor Toope:

In the 1987 Labour trilogy, Dickson attempted to introduce a distinction between general international human rights law which served as the context for the Charter’s adoption and was therefore “relevant and persuasive” in Charter interpretation, and human rights treaties to which Canada is a party, which would serve as the benchmark for all Charter rights. The Charter should be presumed to guarantee protection “at least as great” as that afforded under Canada’s treaty obligations. The Court subsequently ignored this distinction. This is a loss, not only in Charter cases, but also in all cases where international law is invoked. That part of international law that is “inside” Canada is not only persuasive, it is obligatory. When we fail to uphold our obligations, we tell a story that undermines respect for law internationally.

In line with this observation, various commenters have endorsed some sort of presumption of compliance in the context of Charter interpretation. For instance, Professors A.F. Bayefsky and M. Cohen have suggested that some of Canada’s international commitments should be seen as effectively implemented through the Charter, while other laws or norms should be seen as presumptively incorporated. Chief Justice Lamer has stated extra-judicially that “[t]he Charter can be understood to give effect to Canada’s international legal obligations, and should therefore be interpreted in a way that conforms to those obligations.” Consistent with these positions, Patrick Macklem has recently identified what is effectively a form of ‘creeping monism,’ whereby various international obligations have been imported into the domestic legal order through judicial interpretation of the Charter.

While the notion that international human rights norms have been implemented or otherwise incorporated into Canadian law through the Charter was “enthusiastically advanced” by scholars in the early years of the Charter, such an approach has been largely resisted by the courts. At first blush, any doctrine of incorporation or compliance would appear to run headlong into the reality that the Charter could only with great difficulty be read to include every international human rights document assented to by the Canadian government. It would indeed be a remarkable single page document that would, by necessary implication, incorporate the commitments found in the nearly forty international human rights treaties and declarations to which Canada is a party, much less the full spectrum of international law, norms, protocols, and decisions available. However, even if we were to accept that a presumption of compliance is plausible, there are good reasons to not adopt it. In particular, the meaningful application of such a presumption would undermine two important pillars of the Canadian constitutional order: federalism and the separation of powers.

From the outset, it should be noted that such a presumption runs contrary to the rules that treaties are not self-enforcing in Canada,103 and that customary international law can be displaced by legislation. It also undermines the clear direction from the Court that Canada’s international law obligations are not incorporated into the Charter. Although some countries have adopted a monist system, or have explicitly incorporated international law into the domestic law through a constitution or quasi-constitutional legislation, Canada has not done so. It therefore remains for all intents and purposes a dualist jurisdiction in which those international treaties requiring domestic implementation must be adopted by the relevant legislature before becoming binding in Canada.

This dualist approach to international treaties is required by the logic of the Canadian constitutional structure with regards to both the division of powers and separation of powers. In brief, the Governor General, acting on the advice of the Prime Minister and Cabinet, possesses the constitutional authority to enter treaties binding Canada internationally. However, in order for such treaties to have the force of law in Canada, they must be adopted by the relevant legislature. As it is the federal executive that is endowed with treaty making power, a monist structure would allow the executive to unilaterally make domestic law without parliamentary oversight, and to give effect to treaties encroaching upon provincial jurisdiction without provincial consent or participation. This logic applies a fortiori to the argument that international obligations assented to by the federal executive are incorporated into constitutional law, which limits the content of legislation passed by either level of government. Allowing past, present or future federal executives to effectively modify the meaning of the Charter is untenable given the onerous steps required to change the language of the constitution explicitly. That the Crown has affixed Canada’s name to a given treaty affects the recourse that may be had at the international level; it does not for that reason have the force of law within Canadian courts. To put the matter bluntly: “[i]f treaties are made by the executive, and the executive cannot make law, treaties must not be law.”

This observation brings us back to the important distinction between applying international law as a statutory presumption or as a matter of common law development on the one hand, and presumptively applying it in construing the Charter on the other. The relevance of this distinction is left unaddressed by many commenters, and some courts, who seem to operate under the belief that the presumption should naturally apply in the context of constitutional interpretation, just as it applies in the course of statutory interpretation. In my view, this approach does not adequately reflect the substantial difference in interpreting legislative acts in light of textual ambiguity and permanently rendering those acts of no force and effect. In the former event, where the court ‘gets it wrong’ in imputing to the democratic branches an intention that is not present, or by developing the common law in a way contrary to the will of elected bodies, the legislatures can correct such an interpretation through the passage of legislation. No such recourse is available where the Court is interpreting the meaning of a constitutional document.

This leads to difficulties for the ‘presumption of compliance’ school of thought with respect to Charter interpretation. For instance, Professor Bayefsky relies on the “timeworn presumption and resulting admonition to bring Canadian law into conformity with international legal obligations where possible.” However, she also notes that when the courts apply this time worn presumption in the normal course, there is “no doubt” that unambiguous domestic legislation will prevail where it conflicts with international law. Put differently, the corollary of the presumption of compliance is that “courts will apply the law laid down by statute or common law, even if it is inconsistent with a treaty which is binding upon Canada.” I would suggest that the reason that the presumption is relatively uncontroversial with respect to statutory interpretation and common law development is because it can be ousted by clear legislative action that derogates from the international law or agreement. In stark contrast, the Charter is applied to abridge legislative authority, however clearly it is expressed. In the context of the Charter, the logic of the presumption is turned on its head: it does not operate in this context to ensure the relevant legislative body remains vested with its constitutional authority, but rather to divest it of authority.

Other difficulties arise if the presumption is applied to constitutional interpretation. For instance, it might be noted that the Supreme Court has consistently stated that all decisions of the executive—including those stemming from the royal prerogative—are subject to Charter scrutiny. Thus, the effects of treaties must be consistent with the Charter, and executive efforts to generate legal results through treaties “are as much subject to the required conformity with the Charter as are legislative efforts.” If this is true, how can it also be that the proper interpretation of the Charter can be discerned with reference to an exercise of that same executive power? The analytical approach is entirely circular: the executive must act in accordance with the Charter, which must in turn be interpreted in accordance with a product of that executive action, that is, international treaties.

None of which is intended to suggest that it is illegitimate for the courts to abridge legislative authority, which is the very purpose of the Charter. Rather, it is simply to note the inaptness of applying statutory presumptions to constitutional interpretation without considering the important distinctions between the two exercises. As Chief Justice Dickson once observed, “[t]he task of expounding a constitution is crucially different from that of construing a statute.” I think that distinction requires careful attention in this context.

As a result, I prefer the position adopted by Chief Justice McLachlin, dissenting in R v Keegstra. The Chief Justice argued that while international human rights law may be helpful when interpreting the Charter, it would be wrong “to consider these obligations as determinative of or limiting the scope of those guarantees”; the Charter is a uniquely Canadian legal instrument, whose protections may depart from international covenants. The Court’s role here is, in a sense, to ‘translate’ relevant international norms “in a way that forwards a unique Canadian vision of law.” In my view, a meaningful presumption resulting in a form of ‘creeping monism’ is only slightly less troubling than a de jure monist system in the Canadian context, and for the same reasons: it would effectively permit the federal executive, in executing its power to adhere Canada to international legal obligations, to unilaterally modify, expand or contract the meaning of Charter guarantees. Along with the other difficulties raised above, I think any notion of a presumption of compliance should be avoided. Fortunately, there is an alternative approach that would avert these problems without losing the benefit of international human rights norms entirely.

B. The Relevant and Persuasive Approach

On the analysis above, the more rigorously any constitutional presumption of compliance or doctrine of incorporation is applied, the more constitutionally objectionable it becomes. However, there seems to be no compelling justification for excluding international sources from the matrix of factors that elucidate the purpose, meaning and scope of Charter rights and freedoms. In my opinion, the justification for the use of international legal sources in the context of Charter interpretation is rather straightforward, and indeed is well accepted in our legal culture. It is simply that “the search for wisdom is not to be circumscribed by national boundaries.” To the extent that international human rights laws and norms are helpful in construing the meaning of Charter provisions, it should only be to the extent that they are considered relevant and persuasive on a given point of interpretation. As others have observed, this ‘relevant and persuasive’ approach was indeed the principal thrust of the Chief Justice’s reasons in the Alberta Reference, his invocation of a ‘presumption’ notwithstanding. The approach envisioned here would, generally speaking, resemble the Court’s use of comparative law sources: for elucidation where considered persuasive, as opposed to commanding statements of constitutional meaning.

Amongst others, Gib van Ert has criticized the relevant and persuasive approach as evincing an “ultimately weak approach to international law,” and one that departs from the common law system of reception, discussed above. He suggests that the relevant and persuasive approach upsets the balance between self-governance and respect for international law “by empowering Canadian courts to ignore or depart from international conceptions of human rights with relative ease.” However, as noted above, courts are already permitted, and indeed required, to do so, if by “with relative ease” we mean upon clear direction from the relevant legislature. Respectfully, the argument that this approach is “too much self-government and too little respect for international law” appears to be based on the idea that the Charter operates like any other domestic legal document. To the contrary, unlike a common law or statutory presumption “reserving to our laws the power to depart from international norms by explicit action,”such an approach may serve to prohibit explicit legislative action, and invalidate laws that are not in conformity with international obligations.

I do not mean to suggest that advocates of a presumption of compliance are without strong reasons for their position. Undoubtedly, ensuring adherence to international commitments is an objective to be lauded, and our elected representatives should take such obligations seriously. The more a considered opinion of the Court dovetails with Canada’s international obligations, the better. In my view, however, the difficulties with the presumption raised above weigh heavier in the balance, and the fact that the relevant and persuasive approach is “unobjectionable” seems to recommend it. The courts’ responsibility in this context is to interpret the constitution, not to bend it to ensure compliance with international agreements entered into by the Crown. The hard task will be in constructing a framework for a principled approach to the use of relevant and persuasive international legal materials, a point to which I now turn.

Don’t Let Your Strategic Plan Become a Very Expensive Bookend!

My firm was recently retained by a client to assist with their Strategic Planning process. During the “interview stage” of our relationship, the Managing Partner went to great lengths to have me explain my process and style. We had numerous meetings (more than I believe any lawyer would think was reasonable if the situation were reversed) but still I persevered. I knew that there was a reason underlying their reluctance to sign on the dotted line although I understood that it was not about my firm (they had already told me that we were the consultants with whom they wanted to work.) So we all took a leap of faith and we were retained for the strategy project (plus a lot more.)

So once the confidentiality agreement was signed, as we do with all of our clients, I requested as much background material as they could provide so we could understand where the firm had been, and where they were now, so we could assist them with discovering the road to where they should go next. To say I was surprised when I received over six inches of paper in binders labeled “Strategic Planning” is an understatement. I was told that this was the final work product of the numerous consultants they had retained over the past two decades to help them to come up with their strategic plan. Please believe me when I say that this “work product” must have cost them a hundred thousand dollars in fees not including the opportunity cost of the time of the partners involved in the process.

And where had these binders been kept? Well where many law firm strategic plans find themselves – sitting on a shelf gathering dust. A glorified bookend!

And then I understood to what the fear related and why it had originated it in the first place. They were suffering from the symptoms of going through the strategic planning process again and again without true implementation. They knew that the future success of the firm was reliant on developing a meaningful plan but were gun shy to go through the process again. To say the rest of the partnership was skeptical is an understatement. Clear action items, accountability, measurability and quick successes were going to be key.

So how can you ensure that you will successfully implement your strategic plan? A good place to start is with the following:

  • Ensure commitment at the most senior level to developing AND implementing the firm wide strategic plan.
  • Work with a professional resource (whether internal or external) who has not only experience in high level strategic planning but an ability to demonstrate long-term implementation success.
  • Make certain that all partners understand that success lays with each of them not just those on the Executive or Strategic Planning Committee.
  • Ensure a cross section of the partnership is at the table, not just the firm executive committee, as they may be cognizant of issues that may not be top of mind for you e.g. succession planning or recruiting.
  • Include your Director of Administration (or equivalent) in the process. Many of the goals may impact the day to operations of your firm and their insight (and commitment to execution) may be the difference in the success or failure of your plan.
  • If you have a business development or marketing resource, ask for their input into the plan. Clients will be at the forefront of your growth and you’ll need their experience and assistance with execution.
  • Build a list of specific action items out of your goals and ensure that partners are accountable for them within a given timeframe.

If you already have a strategic plan but like many others, it’s sitting on a shelf somewhere gathering dust for a number of years, pick it up but don’t throw it out. There may be some good starting points for your business planning. If not, make sure you share it with any consultants you work with so they have a jump on firm thinking at the start of the process.

Remember that a strategic plan is a living document that should evolve over time as both internal circumstances and external market drivers change. A Strategic Plan is never “finished” – it’s just ready for implementation.

Does #A2J Need a Strategic Plan?

I’m in the midst of preparing a presentation for Manitoba’s upcoming Pitblado Lectures describing various online and new media approaches to access to justice. In doing so, I have been struck by the range and variety of players in this game. Though they may be providing access to justice services and supports for different reasons (whether for profit, for the public good or as a public service more generally) the resulting innovations show great promise to enhance access to justice and reduce gaps.

Groups like HiiL based in The Hague, are supporting innovative approaches to access to justice worldwide. Technology firm Modria is developing tools to assist both corporate giants like eBay and PayPal and small local governments with dispute resolution. For-profit firms like LegalZoom and Rocket Lawyer are delivering lower cost legal service options to consumers and in doing so, are effecting increased access to justice.

Margaret Hagan, through Stanford’s and her Open Law Lab blog is contributing to projects across North America using a design-based approach to access to justice problem solving. Hagan this week posted a(nother) terrific graphic on Open Law Lab with this comment:

Right now, there are many stakeholders & experts working in this area, but there is not a clear agenda or priority hitlist. That is what I want to see, and contribute to: a more defined Access Innovation movement.

Screen Shot 2014-10-20 at 7.58.51 PM

She makes a keen observation and one that has been confirmed by the resources I’ve recently been reviewing and pulling together. Innovation in access to justice is happening everywhere it seems, but like Hagan, I’m seeing little evidence of either coordination or collaboration toward what seems to be a common goal, at least at some level.

Perhaps the scattershot approach reflects that the access to justice innovation “movement” if indeed there is one is still in early days. But maybe it reflects what Hagan suggests — that there is no clear agenda or strategic plan for innovation in access to justice. If she’s right, then I won’t be at all surprised if the outcomes of those innovations are likewise sprayed all across the map, assuming they are tracked and measured at all.

A complex and multi-faceted issue like access to justice requires a clearly defined, coordinated and measured response. So long as financial resources for access to justice remain in short supply most everywhere, there is a great need for efficiency and collaboration in developing innovative, cost effective responses. Any other approach will only result in half-measures and ongoing gaps.

All of which leads to the further question of how that can happen most effectively. I’ll be interested to hear the answer Hagan comes up with, but in the interim, I’d love to hear what you think.

Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. Miller v. Carley, 2009 CanLII 39065 (ON SC)

[1] After a busy day conducting illegal drug transactions, the plaintiff, the defendant and a mutual friend stopped at a corner store where the defendant purchased some “scratch” lottery tickets. One of the tickets proved to be a $5-million winner.

[2] The parties dispute ownership of the winning ticket. If the ticket were a child and the parties vying for custody, I would find them both unfit and bring in Family and Children’s Services.

[3] The case is awash in untruths and curiosities. It is a study in good fortune squandered and generosity abused.

2. R. v. Denis, 2014 ONSC 5987

[1] The Crown has brought an application to remove Ms. Calvinho, as solicitor of record for the Accused for the following reasons:

(a) Firstly, the Crown submits that Defence counsel established a solicitor-client relationship with the husband of the Accused, Robert Joachim, by allegedly advising him and his son Raymond Joachim not to give a statement to police in the phone call between them on Friday September 5, 2014;

(b) Secondly, the Crown submits that even if a solicitor-client relationship was not established, there is a realistic risk that a jury could make a negative inference about the Accused, if they became aware of Ms. Calvinho’s conversation with Mr. Robert Joachim. The Crown submits that this is the case even if I find that Ms. Calvinho only told the Accused’s husband he was not obliged to give a statement to the police or anyone else; and

(c) Thirdly, the Crown submits that Ms. Calvinho may be in a position of conflict in her duty of loyalty to the Accused, as she may be tempted not to call Robert Joachim for the defence to avoid raising the issue of her conversation with him.

3. R v Hordyski, 2014 SKCA 102

[7] Mr. Hordyski contends that his trial counsel was incompetent because he for failed to call corroborating evidence to bolster his theory that his relationship with Ms. Peters was dysfunctional and to confirm the extent of his debilitating back injury. That evidence, according to Mr. Hordyski, would prove he did not have the intent to commit the offence.

[8] There is a two-step process involving an allegation of incompetent trial counsel. The first step is to establish that trial counsel’s failure to call corroborating evidence constitutes incompetence and second, that a miscarriage of justice resulted. This test is set out by the Supreme Court of Canada in R v B.(G.D.), 2000 SCC 22 (CanLII), [2000] 1 SCR 520.

The most-consulted French-language decision was Kanavaros c. Artinian, 2014 QCCS 4829

[61] Il n’y a pas dans le présent dossier une réponse scientifique ou judiciaire au fait qu’une personne est atteinte de dommages plus gravement qu’une autre. Le Dr. Côté ignore pourquoi Madame Kanavaros souffre autant d’avoir vu sa réputation être attaquée et bafouée. Consentir à la proposition des défendeurs serait d’accepter qu’ils se sont attaqués à une personne plus fragile qui doit alors seule en porter la conséquence. Un tel énoncé est mal fondé dans les faits.

[62] Ceci étant, il n’y a aucune raison et aucun fait qui militent à l’encontre du droit de Madame Kanavaros d’obtenir une pleine réparation monétaire pour compenser le dommage causé par les défendeurs. De ce qui précède, le Tribunal retient qu’il existe un lien de causalité direct entre le libelle et le trouble de dépression dont souffre Madame Kanavaros.

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

A National Holiday, a Sports Team’s Name, and Researching Native American Law

In the United States we recently celebrated Columbus Day on October 13th. The day was established in 1934, as a national holiday to celebrate the Italian-American heritage of exploration; then was moved to the second Monday in October in 1968. Its celebration has become controversial, however, because Columbus did not in fact discover America and his arrival unleashed genocide against the indigenous people already living in the Americas.

This year both Seattle and Minneapolis celebrated the day as “Indigenous People’s Day”. Since 1990 the state of South Dakota has called this second Monday in October “Native Americans’ Day” and since 1994 the state of Tennessee has celebrated “American Indian Day” on October 31st. In 1998 California formalized their September celebration of “Native American Day”. Also in 2008 the federal government established “Native American Heritage Day” to be celebrated the day after Thanksgiving in November. Unfortunately that day is also celebrated by many as a “Black Friday” shopping extravaganza.

All of this variety of names and dates is due to federal, state and local jurisdictions all trying to find ways to celebrate Native American heritage. I hope that eventually this ongoing debate will lead to some consistency among the various times and ways to honor the rich and diverse indigenous Native American history and culture.

Another current controversy will be in the spotlight again on November 2, with a massive demonstration in Minneapolis when the Washington Redskins football team plays the Minnesota Vikings. The “Redskins” name is extremely controversial, both here in Washington, DC, and throughout the rest of the US. The name is generally regarded as derogatory and demeaning to Native Americans, but the owner of the team refuses to change it. There have been a series of demonstrations, but the one in Minneapolis may be the largest one. Additionally there are now petitions to the Federal Communications Commission (FCC) which attempt to ban the use of the word on broadcast media.

I don’t often cite Wikipedia, but their entry for Washington Redskins name controversy appears to be a thorough discussion of the origin of the word, its subsequent use in naming sports teams and the opposition to its use. Both sides of the controversy include Native Americans who either object to or accept the use of the word. There is a growing consensus however, that only Native Americans should be able to use the word for their teams or any other purposes they wish.

These and other similar controversies may lead to research on the interrelations between federal, state and tribal law. A good place to begin this research on the various aspects of Native American law is the National Indian Law Library (NILL). Their website states that “The National Indian Law Library (NILL) of the Native American Rights Fund (NARF) was founded in 1972 as a public law library devoted to federal Indian and tribal law. NILL serves the public by developing and making accessible a unique and valuable collection of Indian law resources and assisting people with their Indian law-related information needs.”

The NILL website collects a wide variety of online resources that are available on the Internet. The NILL site includes a number of very useful online research guides, a catalog of the NILL print collection and a link to submit research requests. One of the many strengths of this site is its extensive collection of tribal law resources. David E. Selden, the law librarian of the NILL, has written “Researching American Indian Tribal Law” which is a comprehensive, current guide to using these resources In the introduction to the guide he states that: “The ability to research tribal law is becoming increasingly important as 566 sovereign Indian nations and Alaska Native villages exercise their powers of self-governance. “Tribal law” comprises the laws developed by tribes or Indian nations, which apply within their territories and to their members.” The NILL Tribal Law Gateway collects links to many primary law materials.

Another good collection of Native American law material, the Indigenous Law Portal, was recently added to the Law Library of Congress’s Guide to Law Online. This site includes links to general resources and an interactive map of the US with links to tribal websites and to material scanned from the Law Library’s print collection. These links include scans of treaties.

Just down the street from the Law Library of Congress, the National Museum of the American Indian has mounted a new exhibit: “Nation to Nation: Treaties Between the United States and American Indian Nations.” The description of the exhibit includes this statement: “Treaties—solemn agreements between sovereign nations—lie at the heart of the relationship between Indian Nations and the United States. Native Nations made treaties with one another long before Europeans came to the Western Hemisphere. The United States began making treaties with Native Peoples because they were independent nations. Often broken, sometimes coerced, treaties still define mutual obligations between the United States and Indian Nations.” The exhibit includes eight original treaties and will be open until fall of 2018.

Thanks to the power of the Internet, we continue to have more resources available to research all facets of this fascinating and complex area of the law.

Simple Questions in Complex Situations

How many lawyers consistently use a checklist of questions to ask clients at the beginning of a personal legal matter? Many customize the checklists published by provincial Law Societies for a particular practice area, client service style or matter management process. The focus is often on quality assurance, risk mitigation and scope of work. Is there a way to include the human element too?

I attended a lecture by Atul Gawande in New York a few weeks ago. Gawande is a surgeon who teaches at Harvard Medical School, writes for The New Yorker and leads two health care organizations. He is also the author of bestselling books about public health systems, including The Checklist Manifesto and, recently, Being Mortal: Medicine and What Matters in the End.

At the lecture, Gawande discussed a checklist of questions that he and other health care professionals can ask patients facing serious, life-threatening illness. The purpose is to ensure that patients’ points of view are taken into account by the medical experts who will treat them.

Gawande said that earlier in his career, he was so focused on developing expertise and competence that he wouldn’t have thought to ask these questions (although subconsciously, he knew they mattered):

  1. Do you understand the situation you’re in?
  2. Do you understand what it means?
  3. What are your goals, not just for your medical treatment, but for your life?
  4. What are your fears if the situation gets worse?
  5. What are you willing to sacrifice or trade-off in order to reach your goals?

When a patient is facing mortality, these questions seem obvious. And yet they aren’t always asked.

I wondered if lawyers helping clients in tough predicaments could modify these questions to ensure that client objectives are understood. Legal problems obviously rank lower than medical issues on the scale of tough issues a person will face. Although, some legal problems are terrifyingly stressful with life altering implications. Contentious wills, estates and family matters were the ones that immediately came to my mind while listening to the lecture. Others, such as civil litigation and Charter issues would probably benefit too.

The research for Being Mortal shows that patient outcomes are actually improved when these questions become a regular part of health care provision. Patients feel they have been fairly treated. Physicians are given an opportunity to be straightforward and to express empathy.

Many of the experienced lawyers I work with already include similar questions as part of their intake process. They know the answers matter – clients are more satisfied and the ‘right’ work is done, not just the best work. I suspect that the lawyers themselves find a greater sense of meaning in the work done. Perhaps this is a function of life experience combined with practice experience. Perhaps it is a function of focusing on communication as a means of earning trust. Perhaps it is simply a function of remembering to “be human” in an increasingly complex business and legal environment.

Statistics Cheat Sheets

In my spare time lately, I have been studying. My partner Patric deserves special recognition for handling the bulk of homestead related activities as I park myself in front of the computer each evening to delve into the specifics of Z scores, standard deviation, degrees of freedom, probability and regression analysis.

It is interesting and also quite challenging to be facing an exam with the practice question: “43.5% of students pass this certification exam. The department head is sending 12 people from your company to take the exam and says that if you all pass you will each receive a bonus trip to Hawaii. What is the probability that you will be travelling?”

Low, very, very low.

A working knowledge of statistics is a very useful item for your legal business toolbox. For example: Business question: Do we need another printer? A predictable answer based on applied statistics might look something like: What is the mean time to failure for the models of printers in this area, the probability of down time for all the printers in this corner of the office, the relationship between ‘missing’ print jobs and the number of people printing to one device.

If like me, you haven’t used applied statistics lately and you need a little help there are resources available. Your local public library probably has Statistics for Dummies or another readable primer. The site offers some cheat sheets so that you can remind yourself of basic rules and formulas for business statistics, common statistics, and probability. I am usually just offended by the title of this series of books, but these tools are very handy.

We have mentioned the Khan Academy previously on Slaw. Khan Academy offers tons of learning opportunities in math and sciences in their library of content.