Earlier this week, Tech Vibes reported that as worldwide Twitter subscribership crossed the half-billion mark, Canadian accounts were shown to account for 2% of that total, placing Canada at 8th spot among all countries in total Twitter subscriber numbers. Canadians, of course, were also among the early adopters of Facebook and routinely top the rankings of ComScore and similar reports for such things as time spent online, so our collective Twitter presence is not actually all that surprising.
The surprise comes courtesy of some recently completed but not-yet-released research conducted by CanLII. Over a 6 week period in June and July, CanLII ran its largest-ever survey of users. This particular survey was directed solely to Quebec notaries as well as lawyers from all Canadian jurisdictions and asked, among other things, about social media use. From the over 4000 responses received we learned that 22% of those surveyed have a personal Twitter account.
When you stack that 22% number up against the Canadian total, it leads to the unmistakable conclusion that the Canadian legal profession is much closer to the leading than the trailing edge of the Twitter revolution. Consider the math:
2% of 500,000,000 = 10,000,000 Twitter accounts which, when divided by 34,000,000 million of us occupying this space, equates to roughly 29% of Canadians with an account. But when you consider the number of Twitter spambots, parody accounts, corporate Twitter accounts, and multiple automated Twitter accounts managed by a single person (Slaw.ca, for example is responsible for over 10 Twitter accounts), the actual percentage of individual Canadians with a Twitter account would be well below 29%. By some estimates, fake/spam accounts represent at least 10% of all Twitter accounts – this alone would remove over 1 million from the Canadian total.
But the 22% of notaries and lawyers with Twitter accounts is a true number that does not lend itself to overstatement or understatement as each survey participant was presented with a simple yes/no question as to whether they had a personal Twitter account.
I should mention that the 2012 ABA Tech survey provides another point of reference. In that report (available for a fee), 11% of respondents reported that they used “Twitter or similar microblogging services for professional purposes” and 21% reported use of the services for “personal, non-professional purposes”. In the spirit of the Olympics, where victory can be measured by 1/100th units, I hope our American friends will forgive me for awarding Canadian lawyers the gold.
So if Canadian lawyers are in fact leading adopters of this particular technology, what does it mean? I’ve previously offered suggestions, but I’m curious to know what you think.
I met with my client after supper on a Friday in the vestibule of a church. It was near my place and, it being a pleasant spring evening, I walked there, pushing my then-infant daughter in her stroller. He was a regular at this particular church, and Fridays were reserved for family social events. His young children were also at the church – a rare and special occasion, authorized in this instance by the family court. The child welfare officer was due to return shortly so we chatted only briefly before he signed over his $2700 tax return and rejoined his children for the hour that remained.
The money, as you might have gathered, was to keep his account with our firm current so that we would continue to represent him and his wife in their efforts to block the province’s request to amend its protection order from temporary to permanent guardianship of the children. That was 14 years ago. I was an articling student at the time and while so much of the 9 months in which I was involved in that case is burned indelibly in my mind, for the purpose of this column I offer the anecdote as an example of how fully and unreservedly people can find themselves surrendering to the operations of the justice system when circumstances bring them within its orbit.
This man was not wealthy and, as a skilled labourer, often had to travel for weeks at a time to where the work was. His wife, not long before temporarily resident in a psychiatric facility and still under periodic observation from her supervising physician, was doing well, but not yet re-employed. By the accounts of their many professional supporters (clergy, medical and other), they, individually and as a couple, were making excellent strides and demonstrating stability and capacity previously considered by the authorities to be well beyond their grasp. But it was not enough. In light of their prior lows, the recency of their turnaround and the perceived fragility of their situation (in part having regard to the potential impacts of his work-related absence on her state of being), the province and its representatives remained convinced that the best interests of the children would be served by securing permanent guardianship as a precursor to facilitating the adoption of the children by the couple who had for over a year served as foster parents.
During the term of my involvement, dozens of players came and went. Court clerks, child welfare staff, lawyers, doctors, motions judges, therapists, neighbours, interveners and more. The only constant was the “system”. At its best, the system ensured that the best interests of the children remained at the forefront while allowing fair comment and fresh evidence from all sides. At its worst, the system would either grind down or strengthen the resolve of individuals, resulting epic battles or even dramatic capitulations in cases where simple conversation might have spared significant time and expense. Did we really need an emergency motion to determine whether the children should go trick-or-treating on Halloween?
For my clients, the system would consume all financial and most of the emotional resources at hand. There was some measure of satisfaction to be found when, following a 4-day trial, the judge determined that there were insufficient grounds to grant the province’s request and, further, that in light of the demonstrated improvement of the parents, the province should assist in re-integrating the family unit.
That result was rendered on a Thursday afternoon. The following Monday, I started my new job as telecom policy analyst with TELUS and two weeks later I was called to the bar. From that point and for the 13 years that followed, I was employed only by multi-billion dollar companies and, for a period, an association that represented several multi-billion dollar companies. This provided me with the professional luxury of looking at the “system” as a playing field on which to gain advantage or, occasionally, to do battle. Professionally, I did not need to see it as something that overwhelms the participants or that compels complete surrender. I’m proud of the work I did and the results I achieved in that environment, but from a distance and with the benefit of hindsight, I’m better able to recognize that, professionally, I had become a stranger to the justice system as it is known and most commonly experienced by the vast majority of Canadians.
In our personal capacity, most of us will not find ourselves demonstrating our fitness as parents before a court, defending ourselves against serious criminal charges, or even involved in a large and complex civil litigation matter. But the probability that we, or those close to us, will have a brush with the justice system is reasonably high. Contested support or child custody matters, probate, tax, real estate, employment or property disputes, and certainly traffic matters, can all personally ensnare us in the web of the justice system. These first hand experiences, perhaps more so than our professional experiences (which may not be the case for all, but is certainly the case for me), provide the insight into the system as it truly is. When your personal affairs get enmeshed in the justice system, escape or even separation is not simple. From this vantage point, we begin to recognize that facilitating access to justice is not about making things better or easier for other people. There are no other people. There is just us.
A year after that 4-day trial, I ran into the crown counsel who argued opposite. He told me that a month earlier my former clients voluntarily relinquished their custodial claim to the children and acceded to the province’s request for permanent guardianship. Their personal progress stalled and their resources depleted, the couple had apparently come to the conclusion that the best interests of their children could be met by the long-time foster family.
As a father, I often think about that day in the church vestibule and the struggles of parents that have to seek approval for the chance to spend mere hours with their child. As a lawyer, I’m getting reacquainted with the idea that life, law and engagement with the justice system isn’t academic and isn’t just something that other people deal with or that we deal with on behalf of other people. Finally, as a person – as one of us – I’m beginning to ask myself what I can do to ensure the justice system becomes more about justice and less about the system. No easy answers, but a goal worth pursuing nonetheless.
[This post originally appeared on Slaw.ca. See the comments here.]
For over 30 years, every first-year Canadian law student has read these words: “Mr. Pettkus and Miss Becker came to Canada from central Europe, separately, as immigrants, in 1954. He had $17 upon arrival. They met in Montreal in 1955. Shortly thereafter, Mr. Pettkus moved in with Miss Becker, on her invitation. She was thirty years old and he was twenty-five. He was earning $75 per week; she was earning $25 to $28 per week, later increased to $67 per week.” To protect their privacy interests, is it too late to re-style the case P (L) v. B (R)?
I ask this question because we at CanLII regularly receive requests (occasionally accompanied by promises of legal action) from people named in decisions to remove, redact or otherwise obscure the information to protect their privacy or the privacy of their children. They do not want their most painful moments or their dirty laundry topping the list of a Google search of their name. It is not inconceivable that the next request could come from Mr. Pettkus.
On occasion we also receive calls from the Courts in circumstances where they have been alerted, for example, that someone’s divorce decision has shown up on a Google search. Whether we hear about the concerns directly or indirectly, a review of the underlying case often reveals anonymization was requested and expressly rejected.
Can you un-ring a bell?
Pettkus v. Becker,  2 SCR 834 is a foundational case on the concepts of unjust enrichment and constructive trusts, particularly in the context of domestic partnerships. Cited, as of June 2012, by Canadian courts in 880 decisions appearing on CanLII, its influence continues apace. The day after Pettkus v. Becker was argued, the case was reported in the Ottawa Citizen under the headline: “Supreme Court to decide on divorced women’s property rights”. While headlines may have varied, details of the case were no doubt widely reported across the country at the time and in countless academic and professional publications ever since.
As is common in family law matters, the personal details of the litigants in this case are laid bare, touching not only on financial and property matters, but also on behaviours, personal relations and allegations of physical abuse (which, interestingly, were mentioned in the SCC decision and not in the judgment below).
Needless to say, through the awareness of the case and the widespread availability of the details – including, as shown, in contemporaneous press reports – it is too late to put the privacy genie back in the bottle for Lothar Pettkus and Rosa Becker. But for family decisions falling short of this level of notoriety or influence, is it desirable to attempt to un-ring the bell in the name of privacy protection through ex post facto anonymization of family law decisions?
The end of “practical obscurity” and new implications to “open court”
Over recent decades as law inexorably moved from print to digital and from “reported” to a state where effectively all cases are reported, “practical obscurity”, as some have called it, associated with limited access to legal decisions is no longer assured. You could argue that the pursuit of “practical obscurity” was always inconsistent with the open court principle, but, now lost, does that mean any hope of widespread protection of privacy for litigants has been lost with it?
Litigants, in family matters or otherwise, can seek publication bans or request that a Court require that reporting of cases be done with initials only. In circumstances where none of the many statutory directions to preserve anonymity apply, the Court must balance the interests of the parties against the imperative of open courts so that justice may be seen to be done.
A.B. v. Bragg Communications Inc., 2011 NSCA 26 offers a good summary of the open court principle and its application in family matters. For purposes of this column, I will draw on one part of that summary:
 The application of the open court rules to family law matters, where privacy concerns are often paramount, was considered in one of the earliest articulations of the open court principle. Almost a century ago in Scott v. Scott,  A.C. 417, the House of Lords gave strong effect to the open court rule in the context of a matter arising under the Divorce Act. Lord Atkinson recognized the privacy concerns which arise in divorce and matrimonial cases, but nevertheless re-affirmed the public interest in open court proceedings. He said at p. 463:
The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.
Immovable object, meet irresistible force
The open court principle is, and should be, an immovable object in the service of the administration of justice. Protection of personal privacy interests may not yet be an irresistible force, but momentum is undoubtedly building.
While it may be hard to tell from the non-stop “voluntary” sharing of personal information through Facebook, Twitter, Tumblr and the like, we have never been more collectively concerned about the protection of personal privacy. In a prior Slaw post, David Canton directs our attention to a December 2011 op-ed from the Ontario Privacy Commissioner that succinctly captures why we are, or should be, concerned. The op-ed states, in part as follows:
In this day and age of 24/7 online expanded connectivity and immediate access to digitized information, new analytic tools and algorithms now make it possible, not only to link a number with a name, but also to combine information from multiple sources, ultimately creating an accurate profile of a personally identifiable individual.
One month later, a unanimous Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32 recognized the tort of “intrusion upon seclusion” and, alluded to the guardian role of the Courts and the common law to “evolve” in the manner in which it protects privacy rights.
 For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially. […] As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.
 It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order. [emphasis added]
Where do we go from here?
No answers from me following this cursory overview (indeed, I’ve only spoke of published decisions and haven’t weighed in on electronic access to court dockets or on reporting on in-progress matters), but I would like to hear your thoughts.
- Does the current model where adjudicators address the issue on a case-by-case basis suffice?
- Should all courts pursue a Quebec model where effectively all family cases are anonymized?
- Does anonymization of the published judgment matter if the court file remains accessible?
- What other considerations are relevant?
I look forward to your comments and insights.
[This post originally appeared on Slaw.ca. Check the comments here]
To have a country governed by the rule of law and not the rule of man requires that the law be known. As few communication networks are as efficient for disseminating information as social media networks, it should not be that surprising that Twitter, Facebook and other networks can very effectively serve that objective.
Twitter and Facebook will not and should not supplant the role of government and the courts to make the law known, but even the law makers themselves can and are making increasing use of social media to augment their efforts.
Before adopting too pious a tone in this column, I should note that I love a good Twitter meme as much as the next person and I too use Twitter for frivolous and self-aggrandizing purposes. My point is merely that Twitter as a platform enables so much more. David Bilinsky wrote on Slaw about the Nova Scotia courts and their use of Twitter to broadcast the availability of new decisions and of other important details pertaining to the activities of those courts. Over at the Supreme Court of Canada, while not itself tweeting, we can easily see that every one of its rulings are now tweeted by someone. Not just links, but editorial comment as well, delivered in 100 character snippets by many prominent twittering others. In fact, constitutional scholars and leading Canadian appellate advocates regularly delve into extended twitter debates about the meaning of any given ruling.
Look, for example, at the 21 French and 39 English language tweets linking to the SCC.lexum.org presentation of S.L. v. Commission scolaire des Chênes. Or the 90 tweeted links to the English language version of Reference re Securities Act. Bear in mind also that CanLII’s presentation of these decisions will drive additional tweeted links. And the twitter conversation around the issues will be comprised of still hundreds more tweets that either eschew links or offer links to media or other analysis of the issues raised by the case or legislative source.
These activities are fully consistent with the sentiment behind the preamble to the Reproduction of Federal Law Order which provides as follows:
Whereas it is of fundamental importance to a democratic society that its law be widely known and that its citizens have unimpeded access to that law
To reinforce the rule of law and for the law to be widely known it must be openly and frequently brought into public view and made part of public discourse. It will be a long time before we see Donoghue v Stevenson “trending” on Twitter, or receiving tens of thousands of “likes” on Facebook. But sudden changes or dramatic turns in legal understanding brought about by a court judgment will and frequently do attract significant attention in both venues. And it is this attention, whether triggered by a court’s own twitter account or the accounts of court observers that enhance awareness of the changes and facilitate the process for understanding “new” law.
When you learn from Twitter, don’t forget to cite the source
As mentioned, we see examples of this with every new Supreme Court decisions, but one of the most dramatic examples in recent months came out of the Ontario Court of Appeal with the release of Jones v. Tsige and the introduction into the legal canon and popular vernacular of the “tort of intrusion upon seclusion”. True understanding of the implications of this ruling will take analysis and further judicial consideration by subsequent courts faced with new actions, but a significant amount of discussion was triggered through Twitter alone within hours of the decision hitting the Ontario Courts website.
The twitter-tracking site Topsy.com shows 81 separate tweets with links to the Ontario Courts presentation of the decision.
Among those doing the tweeting were leading technology and privacy law academics and practitioners, alongside dozens of twittering lawyers, media and more, all with a collective “follower” reach of over one hundred thousand individuals (not quite @AplusK numbers, but still not too shabby in a Canadian legal context). These tweets spawned, countless blogs which themselves included links back to the cases. All in all, Twitter likely had a significant hand in facilitating public awareness and understanding of an important development in the law.
If a tweet falls in the forest…
The foregoing examples might begin to convince you that Twitter is a useful broadcast medium for court decisions, but to begin to buy-in to the idea of Twitter have a role in fortifying the rule of law, there should be evidence that people are in fact following the links.
So are people clicking through? I can’t comment on the Twitter click-throughs experienced by the Ontario Courts or the SCC in the examples mentioned above, but I can talk about CanLII’s experience.
It starts in 2008. We think we have managed to identify Tweet-zero: the first time a tweet linking to CanLII content resulted in someone reaching the site. If we are correct, tweet-zero occurred in May 2008 and was courtesy of a long-time Slaw contributor.
In 2008, twenty-seven CanLII page views are attributable to links contained in Tweets. In 2009, that number was 911. It grew to 2591 and then 9206 in 2010 and 2011, respectively. Forecasting 2012 results on the number and growth in page views over the first three months of the year, it’s reasonable to predict that totals will top 25,000.
Add to CanLII’s 25K+ page views the thousands (tens of thousands?) more that will be experienced by Canadian court websites and it becomes increasingly evident that Twitter has the potential to be a potent medium for raising awareness and promoting understanding of Canadian law.
And Facebook? Well, CanLII’s internal statistics indicate that over twice as many page views originate from Facebook as from Twitter links, but as this example shows, the circumstances that attract attention on that network may tend more to the peculiar or salacious than the comparatively erudite debate found on Twitter. [Again, mea culpa. I like reading and talking about peculiar decisions] So while its influence can’t be denied, the case for its contribution to the rule of law may be a little harder to make at this time.
I am lawyer, hear me tweet
Tweeting is easy because even in the absence of a “Tweet” button, web-based content can be pushed to Twitter with a simple cut-and-paste of the URL, so the only function of Tweet buttons on sites like Slaw or even CanLII is to make that process even easier. Content is pushed, in the form of links, to where the conversation takes place, and links serve the function of bringing the individual, not the conversation, back to the content.
And finally, because a tweeted link to primary law is only valuable if read, one might ask what methods are likely to encourage that action? I hesitate to offer a list of “best practices” but I will offer examples of tweets I find compelling.
- Slaw’s own trailblazing CanCourts twitter feeds, naturally!
- The “Wow! This is neat” tweet.
- The “#CDNPOLI” tweet.
- The “this is new, have you seen this?” tweet.
- The “I think this is what you are looking for” tweet.
- The “allow me to correct your misunderstanding” tweet.
- And the most popular and (in my view) most effective, the “100 character headnote” tweet:
Where does CanLII fit in all of this? Naturally CanLII encourages it. In fact, in September of last year, we added Tweet buttons to all our decisions. Yes, we do benefit from the increased traffic and awareness of our service that comes from the tweeting, but our decision to include the buttons was more a reaction to behaviours that we already observing rather than an attempt to engineer a paradigm for expanding juridical awareness. We are happy to facilitate the activity but we do so only as a small part of a much bigger trend and a much bigger purpose.
At publication of this column @CanLII will have just marked its one year twitterversary and hopefully welcomed its 2000th follower.
So…do you tweet law links or follow those who do?
** This post was written in March and first published on Slaw.ca on April 16th: http://www.slaw.ca/2012/04/16/twitter-facebook-and-the-rule-of-law/ More recent cases, including R. v. Tse, have shown even greater use of Twitter to spread awareness than the examples offered here.
Inspired by all the coverage this week about the 30th anniversary of the Canadian Charter of Rights and Freedoms, I offer this look at Canadian judicial consideration of the Charter.
- Number of times the Supreme Court of Canada has referenced the Charter in a ruling: 912
- CanLII’s databases show total consideration across all courts and tribunals as exceeding 13,000 (shown here, sorted by date), but actual consideration would be much higher as not all CanLII databases extend to 1982 and although CanLII has all Canadian courts within its database, it does not have all tribunals and other bodies that might make rulings informed by the Charter. See here for scope of databases (breadth and time).
- Section 7 (right to life, liberty and security of the person) is by far the most referenced section: 6293 results on CanLII
A newly released feature on CanLII allows you to note up statutes at the section level. It works quite well. Give it a try and come up with your own set of “did you know?” facts on judicial consideration of the Charter.
This is a story of fascinating facts captured in a legal judgment and of the power of Facebook to circulate legal information. It was first published in slightly modified form on Canada’s preeminent legal blog: Slaw.ca
* * * * *
Lacking The Right Stuff, Sylvio Langevin finds his Galaxy Quest over just as he launched his Mission to Mars. With the prospect of A New Hope subject to leave of the Men (and women) in Black, perhaps he should seek Serenity, abandon his quest and make The Voyage Home.
In a Langevin (Re), a decision issued on February 22nd but published on CanLII on February 29th, the Quebec Superior Court declared Langevin a “quarrelsome litigant” and barred him from bringing any further action without leave.
That order alone, though infrequently issued and a factually and legally interesting part of the judgment, was not the reason the decision became – in a matter of hours – the most consulted case on CanLII for 2012. No, the reason for the instant notoriety was the pleadings filed by Langevin that prompted the Court’s action.
In a nutshell, Langevin claimed ownership of Earth.
And Mercury, Venus, Jupiter (and its four largest moons), Saturn and Uranus as well.
Recognizing a gap in his request, he sought at the hearing, to amend his pleading to include a claim for Neptune, Pluto and all the space in between each planet across the galaxy.
Finally, he invited the Court to take the opportunity to overturn a December 19, 2011 ruling wherein his prior claims of ownership over Mars and the moon were found to lack legal basis and summarily rejected.
Despite being unopposed (Langevin submitted that the only suitable respondent, God, being incorporeal, was not “invitable” as a respondent), the Court denied the appeal and dismissed all the new claims.
Finally, as these were but the latest in a long line of “vexatious or quarrelsome” applications (to borrow from the language of Quebec’s Code of Civil Procedure), the Court found no difficulty in barring Langevin from instituting further proceedings.
Captivating content aside, how did word of the case spread?
From the moment it was published on CanLII, Langevin (Re) had been racking up page views on CanLII all day. One thousand by 2:00 p.m., nearly three thousand by 4:00 p.m. It ended the day with a remarkable 9,007 page views! In 2011, that would have been sufficient to make it the 4th most consulted case of the year.
Later that evening I turned to the task of preparing this article, convinced that in addition to discussing the highlights of M. Langevin’s efforts to secure dominion over our solar system, I would also cast a light on the role Twitter played in spreading awareness of the decision. Earlier in the week, I was able to trace nearly one third of Richard v. Time Inc. 2012 SCC 8 (CanLII) page views to Twitter links, so surely it had to be a factor here.
Making use of online toys Revisit and Screencast-o-matic, I created this 2 minute video demonstrating how 6 hours worth of tweets (27), retweets (12) and mentions (9) containing links to the decision contributed to the public’s enormous interest. [Note: 10 seconds of the video gives you the idea]
But when I looked at CanLII’s internal referrer site and page view stats, the facts didn’t bear out the theory. Despite attaining “tweet” levels between 1:00 p.m. and 7:00 p.m. generally only seen for the hottest Supreme Court of Canada decisions, actual page views of the decision were several orders of magnitudes higher than growth in referrals from twitter would suggest.
Then I remembered Hubert David’s piece in Slaw from couple months ago discussing Educaloi’s social media experience. Hubert pointed out that Twitter usage in Quebec is well below national levels and that Facebook reigns supreme. Sure enough, that was the key.
In all of January 2012, there were 2,851 CanLII page views attributable to Facebook page referrals. Between 7:00 p.m. and 11:00 p.m. on February 29th, the day the decision was posted, 2,201 CanLII page views were derived from people clicking links from within Facebook. Over that same time period total views of Langevin increased by 2,691.
This was no coincidence.
Over the next two days as total page views of the judgment approached 15,000, Facebook referrals to CanLII grew at a rate that would imply at least a two-thirds contribution.
Facebook was unquestionably the single most important factor in leading the public to the text of the decision.
So in the final analysis Langevin (Re) taught us the following:
- You can’t claim ownership of the solar system.
- At the very least, should you attempt to do so, try a common law jurisdiction where you might be able to base your case on equity. Alberta, perhaps? Try the Judicature Act, ss. 8 or 15.
- If you poke a Court enough times, they will poke back.
- Social media in general and Facebook in particular can play a significant role in spreading legal information and awareness.
The Canadian Legal Information Institute was officially founded in 2001. Funded by Canada’s lawyers and notaries for the benefit of all, CanLII provides free access to legal information. In 2011, CanLII received nearly 7 million site visits and delivered over 81 million page views to users. With one million documents across over 200 collections, CanLII is closer than ever to achieving the dreams of its founders to become the best place for lawyers and all Canadians to consult Canadian law.
The author, Colin Lachance, serves as CanLII’s President and CEO.