It was December 1984, and Rickey Henderson was in his prime at the Oakland As. And just like that, he was traded to the New York Yankees. So, of course, where else would he make a cameo but the David Letterman show (around minute 3):
If you fast forward to minute 14, there is also another baseball great mentioned.
Last Thursday, Premier Jim Prentice delivered a remarkable speech in Calgary to a room filled with defeated candidates, soon-to-be ex-cabinet ministers, disenchanted party supporters, and disappointed corporate donors. The mood was grim. "None of this is at all easy," Mr. Prentice conceded. While bravely taking responsibility for the party's spectacular electoral loss, he also stated the obvious: "we were defeated in this election for a number of reasons."
Many of those reasons, of course, lay beyond Mr. Prentice's control. He could not dictate the international price of oil, or re-write the unpopular history of the Redford government. He could not stop the public's healthy appetite for political change, or the successful NDP campaign. And yet, Mr. Prentice and the PCs bear responsibility for one set of avoidable errors that directly contributed to their downfall: in the critical months leading up to the election they often seemed to forget the fundamental principles of Canadian parliamentary government.
Looking back, there were troubling early signs of confusion. During his campaign for the leadership of the PC Party, Mr. Prentice floated the idea that there should be American-style term limits for premiers and members of the legislature. Although probably contrary to the Charter’s protection of democratic rights, the proposal also seemed to overlook the possibility of short term minority government, discount the fundamental principle of responsible government, and fly in the face of parliamentary tradition. The proposal was quickly dropped.
Mr. Prentice’s second error proved more costly. Lauded at the time as a strategic masterstroke, when Danielle Smith, Leader of Her Majesty’s Loyal Opposition, and eight other Wildrose members crossed the floor to join the PC caucus, Alberta’s legislative assembly lost the leadership and heart of its Official Opposition.
A combination of constitutional convention, procedural rules of the assembly, and legislative enactments grant the Leader of the Official Opposition a critical role in Alberta’s parliamentary system of government. More than a government-in-waiting, the Official Opposition promotes democratic accountability in its role as government critic and by promoting alternative policies.
The constitutional position of the Official Opposition emerged organically in British parliamentary practice. According to Murray Scott, former Speaker of the House of Assembly of Nova Scotia,: “The title ‘His Majesty's Opposition’ was first used in debate on April 10, 1826, by John Cam Hobhouse (later Lord Broughton) in the British House of Commons.” The practice of recognizing an Official Opposition and its Leader migrated to Canada over the course of the nineteenth century and continued to evolve in the twentieth to form a foundation in Canadian parliamentary government.
In his speaker’s ruling designating the Official Opposition in the House of Commons 27 February 1996, Speaker Gilbert Parent put it well:
"It is a cornerstone of our democratic tradition that government rests on the consent of the governed. This means that the minority accepts the right of the majority to make decisions provided that the right of the minority to be heard, to dissent, to air grievances and to promote alternative policies is respected.
The role of an opposition in our form of parliamentary government is therefore fundamental. Its leadership is equally important.
For this reason, Parliament has seen fit to acknowledge the importance of the individual holding the position of Leader of the Official Opposition by providing this person with support and allowances similar to those granted to the Prime Minister. As well, in its procedures the House recognizes the significance of this position, despite the lack of any official definition thereof.
The position of Leader of the Official Opposition is firmly anchored in our parliamentary system of government through practice and the implementation of various statutes and rules of procedure. The importance of the Official Opposition and its leader has been commented on both in Canada and in other countries with Westminister style Parliaments for well over a century."
A weakened and leaderless Official Opposition offered the PCs the prospects of short term political gain, but at the cost of the democratic flourishing of Alberta’s legislative assembly. Albertans noticed.
Finally, there was the fated election call itself. Mr. Prentice spent a considerable portion of his Calgary speech last week defending his much criticized decision to call an early election. It is worth quoting his justification fully:
"Let me return to the election itself, and I want to begin with the question of: why we had an election. A decision for which I have taken a fair bit of criticism and I suspect that will continue. And as I said earlier I accept full responsibility for that decision.
You know it’s clear to all of us that the Alberta government faces very serious challenges over the next five years. I remain optimistic certainly that we will overcome those challenges.
But my friends they can only be overcome by a government that has the moral authority to make tough choices. And the purpose of the election was to equip Alberta’s government with the moral authority to do what needs to be done.
And to put simply: I won the leadership of our Party last summer, but the Alberta public did not at that time confer on me the authority to do or to make any of the things that were outlined in our fiscal plan and in our strategic plan that were tabled in the legislative assembly this March."
More than a political miscalculation, Mr. Prentice’s explanation for calling the election rests on a flimsy grasp of the core principles of responsible government. Elections provide us with legislative assemblies to govern in good times and bad, in financial circumstances anticipated and unforeseen. As long as he held the confidence of a majority of the elected members of the legislative assembly (no foregone conclusion as Ms. Redford’s experience revealed), Mr. Prentice possessed all the constitutional, political, and moral authority he needed to govern, including in passing a sensible budget mixing modest tax increases and spending restraint.
Time in the private sector may have dulled Mr. Prentice’s campaign skills, and deafened his political ear, but most detrimentally, his time away from politics seems to have led him to overlook, disregard, and forget Alberta’s most important parliamentary traditions: the need for an effective Opposition to hold the government to account and the principles of responsible government.
Ms. Notley will be sworn in as premier on Sunday. She has admitted that she and her new cabinet and caucus will have much to learn as they prepare to form government. In her preparations, it may be worth providing a reminder of the principles and practices of parliamentary government. The success and longevity of her government may depend on it.
I recently participated in the Estey Symposium on Experiential and Active Learning in Business Law at the University of Saskatchewan, organized by Professor Rod Wood, in his capacity as visiting Estey Chair in Business Law at the U of S, and I wrote about it for the Blog of the Canadian Association of Law Teachers. You can find the post here: http://www.acpd-calt.org/?page_id=2357.
For students, my presentation at the Estey Symposium focused on my course at the law school titled Advanced Topics in Corporate Law, which was offered for the first time in Winter 2015, and the student feedback I received on what they thought they got out of the course. This course is discussed briefly in the blog post, but if you are thinking of taking this course next year and have questions, feel free to ask them in the Comments section below, and I will attempt to respond.
A version of this post appeared in The Globe and Mail on Monday, May 4, 2015.
As voters across the province prepared to cast their ballots, they had to wonder: would this spring election end a Conservative political dynasty of over forty years? Would there be a minority government? If so, who would lead it: the venerable Tories with their new party leader, or either of the two opposition parties vying for power? Could the NDP emerge with the balance of power, or, shock the country, and actually win?
These were the questions Ontarians asked themselves May 2, 1985 as they headed to the polls. Sound familiar?
Albertans are justifiably skeptical of polls given the confident predictions of experts in 2012 of a Wildrose victory that never came to pass. And yet, across Alberta there are signs (literal and figurative) suggesting that this provincial election may end Alberta’s status as the only Canadian province never to have experienced a minority government. One would be foolish to discount the capacity for electoral success of Alberta’s Progressive Conservative Party, but equally is it difficult to deny the plucky surge of the NDP, and the hardy resilience of the Wildrose Party. By all accounts this remains a three way race for the 87 seats in Alberta’s legislature.
These are heady times, then, for partisans of all stripes across Alberta’s political spectrum, not to mention the columnists, pundits, and twitterati who live for this stuff. But if the election does result in a minority government, it will also compel into the spotlight less familiar figures to the political stage, Alberta’s Lieutenant Governor, His Honour, Col (Ret’d), the Honourable Donald S. Ethell, and the murky often misunderstood constitutional conventions that will guide him.
As the Queen’s representative in Alberta, and possessing the executive authority granted by the constitution, it is the lieutenant governor tasked with the responsibility of selecting the premier after an election. As has often been said, and seems so often to require repeating, in our parliamentary system, we elect legislatures not governments. From that elected legislature, the lieutenant governor will ask an individual to form a government. Constitutional conventions guide and constrain the Lieutenant Governor’s choices. Constitutional conventions are those unwritten constitutional rules – like responsible government – developed over centuries of government practice which fill in the gaps and flesh out the skeleton of our constitution. Like the oxygen we can’t see around us, constitutional conventions sustain the life of our constitutional democracy.
But conventions, as the prorogation episodes in 2008 and 2009 made clear, can sometimes be unclear, obscure, or subject to disagreement among political actors and constitutional scholars.
What is uncontroversial is that, by convention, the incumbent premier will resign if a different political party wins a majority of the seats in the legislature. Alberta’s magic number to obtain a majority is 44 seats. If no one party wins a majority of seats (imagine, for example, a not totally implausible scenario of 28 seats for the PCs, NDP, and Wildrose and 3 for the Liberals), by constitutional convention, Premier Prentice has the option of meeting the newly elected legislature to try and secure its confidence. Indeed, by convention, he has the option do so even if the NDP or Wildrose win more seats, but something short of a majority.
The potential role for Lieutenant Governor Ethell arises if either Premier Prentice resigns immediately after losing his majority government, or if Premier Prentice is not able to maintain the confidence of the legislative assembly and then resigns. In either of those scenarios, the Lieutenant Governor must ascertain which party leader is capable of governing with the confidence of the legislature. That choice may not always be clear.
Which possibly brings Alberta back to Ontario in the spring of 1985. After winning a plurality of seats, but not a majority, Premier Frank Miller was defeated in a vote of non-confidence by the Liberals and NDP just over a month after the election. Simultaneously, the NDP and Liberals had agreed to an Accord, by which the NDP agreed not to bring down the Liberals in a confidence vote for two years. While political opponents and some scholars questioned its constitutionality, and its impact on existing constitutional conventions, the Accord paved the way for Lieutenant Governor Aird, after consideration and consultation, to call upon David Peterson and the Liberals to form government. Back to the Future hit theatres weeks later. Like Marty McFly, constitutional conventions exist in two time periods at once, drawing their content from the past in order to apply to new contexts of the future.
Alberta’s upcoming election results may well be unprecedented from the provincial point of view, but they will not be unknown in our longer and broader history of parliamentary traditions. It is precisely that history and those traditions which may well determine Alberta’s next premier.
As my students will tell you, I am on a continuous quest to combine pro-sports and law. My students might be surprised to learn that I have personal interests beyond professional sports! One of those is contemporary art. So, I was thrilled to see contemporary art and law collide in the experimental short film “Sara Nokomis Weir” by law professor and filmmaker Brian L Frye. The film was part of The Festival of (In)Appropriation #7, curated by Lauren Berliner, Greg Cohen and U of A’s own Jaimie Baron. The Festival showcases short films based on “previously shot” or archival footage. This was my second year attending the Festival (its third year showing in Edmonton), and once again I walked out of the Garneau theatre exhilarated and inspired by the wide range of clever, beautiful and challenging films.
“Sara Nokomis Weir” was one of the heavier films in Festival #7. In 1993, serial rapist Douglas Oliver Kelly was accused of raping and murdering Sara Nokomis Weir. A jury convicted Kelly, and imposed the death penalty. The visual element of Frye’s film is the “victim impact video” shown at the penalty phase of Kelly’s trial. The purpose of such videos is to demonstrate the impact of the loss of life on the victim’s family (see Justice Stevens’ statement on the SCOTUS decision denying cert in this and another death penalty case). The sound that plays over this archival footage is the lawyers’ argument on appeal of the death sentence in front of the California Supreme Court. Kelly’s lawyer argued that the emotional power of the victim impact video was prejudicial and should not have been shown to the jury. The prosecutor disagreed, simultaneously suggesting that the video was necessary to show who Ms Weir was as a person, but that given the graphic testimony of other women Kelly had raped, the video likely had no effect on the jury’s decision to sentence Kelly to death.
The victim impact video is twenty minutes long, and shows still photos and home movies of Ms Weir from infancy to 19 years, her age when Kelly murdered her. The power of putting the legal argument over the film is that while the lawyers are arguing over whether the emotional impact of the footage is prejudicial to Kelly, the viewer is experiencing that emotional impact. As I watched the film, I found myself – a life-long opponent of capital punishment – thinking ‘why shouldn’t this guy pay for this crime with his life?’
In this way, the film forces the viewer to confront the legal debate playing simultaneously as the film’s soundtrack: what is relevant information for a jury deciding whether to impose the death penalty, or any penalty? The viewer is also confronted with the juxtaposition of the very personal film footage and the impersonal discussion of the legal argument – the precedents, what the Court said in those cases, and how the cases are analogous or distinguishable.
Contemporary art can be confusing and exclusive. It can often be bad. But by using different media in a creative way, it can also put a legal question – is a twenty-minute victim impact video covering a victim’s entire life set to music admissible evidence in the penalty phase of a murder trial? – in a form that gets past the legal precedents to the real social questions underlying the law.
New reports are suggesting that the Government of Canada plans to extend the term of copyright monopoly from 50 years to 70 years for sound recordings. I will give you 4 reasons why this does not further any legitimate public policy goal but rather is mere rent seeking (a money grab) by copyright owners (in particular the record companies):
1. Ever since the Statute of Anne (a mere 12 year term I believe), copyright terms have creeped higher and higher without any empirical reason to support a public policy benefit, e.g. increased incentive to create more or better art or in this case music. In the absence of such data, does anyone really think that artists, or more particularly the record companies that own the sound recordings, will create more or better music if the monopoly is extended yet another 20 years?
2. Most of the money made on a sound recording happens shortly after its release. For some classic songs and albums, significant streams of income still happen several decades down the road. However, by that time, the copyright holders have made bundles and bundles of money, and much more than could ever be justified by the incentive copyright is suppose to provide creators to make art.
3. Despite the apparent support of the extension by Canadian luminaries Bruce Cockburn, Gordon Lightfoot, and Leonard Cohen , each of these artists probably receives about 10-15% (the industry standard) royalty on all sales of sound recordings - meaning the other 85-90% goes to the record companies. What did they do to justify a 20 year term extension? They lobbied long and hard!
4. And even though, as Leonard Cohen is purported to have claimed, some of his sound recordings from the 60s would go off copyright soon if it were not for this extension, his composition or song writing rights will be with him to the end of his days and then another 50 years thereafter (this is a separate copyright with an even longer term). So while he would not receive a cent for the sale of sound recordings if these were to expire soon, he would still receive his royalties (again probably less than the music publishing house) every time someone else played one of his songs.
Over the past 3 months, our team of 5 U of A law students have been blogging every weekday about the Magna Carta in celebration of its 800th birthday. We started with a history of the document and summarized how it was shaped by the conditions of 1215. We then provided numerous connections to modern day legislation, and questioned whether or not the modifications have stayed true to the Magna Carta’s original intention. It is important to consider the roots of legal tradition and the effects it has on legislation, values, and justice in the present. While freedoms and restrictions often seem novel, we have demonstrated how some significant pieces of democratic society (such as the rule of law and habeas corpus) can be traced back at least 800 years. We also had the privilege of gaining insight on the Magna Carta and it’s legal ramifications by interviewing Dean Paul Paton, U of A law professors (Vice-Dean Moin Yahya, Erin Nelson, David Stam, Brian Kash, Cameron Jefferies, Eric Adams, Peter Carver, Patricia Paradis, and Ubaka Ogbogu), legal professionals (Justice Clackson), and other professionals (Dr. Jim Bell, Melanin 9, Brett Wilson, and Luciano Anselmo).
We hope that you have gained something over the last few months – whether it be learning about the origins of some basic rights, discovering modern policy that you didn’t know existed, discovering a new artist you’ve never heard of, or simply a 5 minute break from your daily grind. We are also fortunate to announce that we will be continuing this project through the fall, since the Magna Carta will be visiting Edmonton from November 23 - December 29. We will continue to post sporadically throughout the spring and summer, and in the fall we will be hosting several Magna Carta related events to continue to bolster excitement leading up to the exhibit.
We would like to extend great thanks to Vice-Dean Yahya for his guidance and unwavering support throughout the semester – without him this project would not exist. We would also like to thank all those who were willing to give us their time for interviews and insights, and to the media outlets and Magna Carta Canada who put our project in the spotlight. Finally, a special thank you to our families and friends, for their unconditional support. We appreciate everyone who sacrificed their time to contribute to a greater understanding of the Magna Carta, and we look forward to continuing to generate critical analysis and discussion.
Twitter account: @msmagnacarta
For our last substantive post of the semester, we had the opportunity and privilege to interview Dr. Paul Paton, Dean of the University of Alberta Faculty of Law. We would like to thank Dean Paton for his unequivocal enthusiasm and encouragement for our Magna Carta blog. Without such support and dedication from Dean Paton and our Faculty, this project would not have been possible. Dean Paton will be travelling to London this summer, so look forward to a potential guest blog post on his visit to the British Library to see the Magna Carta!
Please see below for our interview with Dean Paton, where he discusses the importance and relevance of the Magna Carta in modern times, along with his thoughts on our Faculty’s unique Law & Social Media course.
The Magna Carta coming to Canada is a rare, commemorative event - one which no Canadian is likely to experience again. The exhibit has taken great effort by two individuals, Len and Suzy Rodness, the Co-Chairs of Magna Carta Canada. We would like to thank them for their hard work and dedication, which allows Canadians to experience this once-in-a-lifetime opportunity to celebrate and view the 800-year-old document.
We have had the privilege of getting to know both Len and Suzy Rodness over the last few months, and we are grateful for their support and enthusiasm for our project. Mr. Rodness has graciously agreed to be interviewed regarding the Magna Carta and its journey to Canada. Please see below for our interview!
If you would like some more information about the Magna Carta’s visit to Canada, please visit, http://www.magnacartacanada.ca. You can also follow Magna Carta Canada on Twitter @MagnaCartaCAN.
1. Why did you decide to initiate efforts to bring a 1225 copy of the Magna Carta, as well the Charter of the Forests, to Canada? What were some challenges that you have faced in bringing the Magna Carta to Canada?
I would like to be able to say that we conceived of the plan to commemorate the 800th anniversary of the issuance of Magna Carta by bringing an original copy to Canada. That is not quite the case. Rather, we were in the right place at the right time to receive the opportunity to borrow Durham Cathedral’s original copies of both the Magna Carta and the Charter of the Forest and bring them to Canada. But, regardless of how the opportunity arose, the reason why it is such a compelling idea remains the same; the principles contained within Magna Carta from the core principles upon which our governance and society in Canada have been built – no person is above the law, parliamentary democracy, civil rights, human rights and women’s rights. We believed that it was important that Canadians be given the opportunity to participate in the world-wide celebrations of the 800th anniversary in order to help promote a national conversation about issues that are fundamental to who we are as a country and as a society.
There have been no shortage of challenges in bringing the documents to Canada. The most basic challenge we have faced is a chronic lack of knowledge among Canadians about what the Magna Carta is, and what it represents. A recent MORI survey commissioned by the Magna Carta Trust found that only 44% of Canadians known what the Magna Carta is, and fewer understand what it contains. But this challenge is also our greatest opportunity and provides the core reason for all the work we have been doing. We consider it our mission to help educate Canadians about the importance of Magna Carta to Canada and the world, and to provide them with an unforgettable experience along the way.
2. Why is the Magna Carta important to you, both personally and as a lawyer? How do you think that this document continues to impact our lives today?
As a lawyer, Magna Carta of course holds a special place of importance given its importance to several of the foundational elements of our rule of law. While the core principles of Magna Carta which continue today (habeas corpus and the right to trial by a jury of one’s peers) did not originate in Magna Carta, it was through their inclusion in Magna Carta that they came to be entrenched, and expanded upon through history. The insistence on establishment of the rule of law is essential to the orderly growth of any society, Canada included. Personally, I am fascinated by the historical side of the story of how Magna Carta came to be. Originally a peace treaty between King John and his rebelling barons, with neither very interested in upholding its provisions, annulled within weeks by Pope Innocent III, it became through some very fortuitous circumstances (including the infamous death of King John as the result of a ‘surfeit of peaches’) the illustrious document we revere today.
Magna Carta continues to be relevant today not only for the historical importance of the document itself and the power of its principles, but also for its iconic stature. One only has to look at the recent calls for the creation of a “Magna Carta of the Internet” to promote and ensure freedom of access to and use of the internet to see that the power and prestige of Magna Carta continues to resonate throughout the world. In fact, the term “Magna Carta” has become synonymous with the fight for rights and liberties around the world, and is often cited in such causes.
3. What has been the response to your efforts in bringing the Magna Carta to Canada thus far? As well, do you have any goals for the tour and what do you hope will result from it?
The response to our project has been tremendous, and has confirmed to us that Canadians do want the opportunity to participate fully in events such as this. From the many people who have e-mailed us with their family histories traced back to some of the barons who were at Runnymede on June 15, 1215, or to King John himself, to the people who have selflessly volunteered thousands of hours to help ensure the success of the project, to young people like yourselves who are engaged in the very debates about the rule of law, democracy, civil rights and human rights we have hoped to encourage, we are constantly amazed by the energy and enthusiasm which this project has attracted.
Our goals for the exhibition are simple – to create an experience for Canadians which befits the once in a lifetime opportunity to see an original copy of Magna Carta on Canadian soil, and to build upon that to spark (and continue) a national discussion about the principles and issues I have mentioned above.
Yesterday we asked several Faculty of Law professors here at the University of Alberta for their perspectives on Ms. Magna Carta’s blog. Today it’s the law students’ turn to share their thoughts on the blog! Thank you to Justin Barrie, Michelle Molineux, Ryan Bencic, David Foster, Jeff Arsenault, Scott Meyer, Samantha Barker, Megan Schaub, Sam Alzaman, Erin Kim for their comments! As well, we are very grateful for the continued support from our fellow students at the Faculty of Law!
Ms. Magna Carta visited the 4th floor of the Law Building to ask various members of the faculty for their perspectives of our blog. The Faculty of Law professors comment on how the current legal framework is connected to the Magna Carta, discuss the merits of Jay Z’s album, and even reference Game of Thrones! Please see the video below to check out the professors’ take on the Ms. Magna Carta blog!
Thank you to Eric Adams, Peter Carver, Patricia Paradis, & Ubaka Ogbogu for their comments! We would also like to take this opportunity to thank all professors at the Faculty of law for their support of our project by providing interviews for the blog, and for support via readership and providing information on some of the topics we have covered.
The Magna Carta may be viewed as one of the first codifications for environmental types of protection, however there has clearly been massive revolutions in environmental legislation since 1215. In our previous post we discussed how Fisheries laws can be traced back to the Constitution signed 800 years ago. Although clearly not contemplated by the Magna Carta, Canadian environmental law is vast in scope. We are fortunate and grateful to have Professor Cameron Jefferies respond to some questions about environmental legislation and it's relation to the Magna Carta:
Questions: How do you think the 800 year old Magna Carta influences environmental policy today, if at all? Is Canada's current environmental legislation heading in a positive direction, or is there still a significant amount of reform that is necessary in order for the environment to be sustained another 800 years? More specifically, in which areas are laws successfully or unsuccessfully achieving their goals?
"It may be correct to note that the Magna Carta contained some of the first environmental-type restrictions insofar as it helped to protect Baron’s privately owned forests from Royalty and in that it demanded the removal of Royal fishing weirs from certain watercourses. That said, the environmental problems of the 21st century are much more complex than those experienced some 800 years ago and, accordingly, they demand a much more sophisticated regulatory response. Can it be said, then, that the Magna Carta influences Canada’s present environmental laws? The answer must be “no” in the conventional sense; however, the Magna Carta does serve as an early and important model of the need to equitably manage competing uses of our natural world.
When the Magna Carta was signed, “the environment” as we currently understand it had yet to be recognized. It wasn’t until the second half of the 20th century that we started to meaningfully re-conceptualize the natural world and our complicated relationship with it. Therefore, modern environmental law is actually quite a new development and both our appreciation for the natural world and our obligation to preserve and protect it are very much still evolving.
Assessing the efficacy of Canadian environmental law is not an easy task. We like to think of ourselves as world leaders in this regard but the reality is that we are far, far from it. The last 5 years have been particularly troublesome for Canada’s federal environmental law regime. Successive omnibus budget bills have re-shaped longstanding federal environmental laws, significant Executive inaction has hindered progress in administering and implementing existing laws, and we became the first country to formally withdraw from the Kyoto Protocol to the United Nations Framework Convention on Climate Change. In short, there is room for significant improvement and recent events suggest we are committed to proceed in the wrong direction.
Sustaining our world for another 800 years will require significant adjustment to many facets of society. Given the current rapid rate of change and growth and its corresponding environmental degradation, it is hard to imagine that the status quo can persist. If longevity and sustainability is the goal against which we measure the adequacy of today’s environmental regulation, it is obvious that it is wanting and falls woefully short. However, I am confident that significant improvements must and will be made over time and that society’s recognition and appreciation for some of today’s most pressing problems will eventually translate into a robust regulatory scheme that moves us closer to sustainability and ecological integrity."
Thanks to Professor Jefferies for his insight, and stay tuned for future interviews on environmental law topics.
Last week we posted about ethics within the legal profession (here and here), and discussed how lawyers are regulated by the Law Society of Alberta and must follow the rules of the Code of Conduct. The Code of Conduct, however, makes no direct mention to ethics on social media, nor has there been any direct guidance from the Canadian Judicial Council. American case law has provided Canadians some direction as to how social media misconduct should be disciplined, but there is no Canadian disciplinary decisions to this bloggers knowledge. After combining multiple sources and reviewing the Code of Conduct, several rules are applicable in the social media context.
Rule 2.01 - 2.02 – Competence
Rule 4.01(1)-(3) – Communication with tribunals
Rule 2.02(9), 4.03, 6.02(8), 6.02(10) – Communication with opposing parties
Rule 4.05(1) – Communication with Juries
The Law Society of British Columbia has created a model social media & social networking policy which also provides some general guidance. Overall, a conservative approach should be maintained until there is official direction on communication appropriateness for the above listed groups. Always remember that everything online is public, and it is written in ink.
The Magna Carta is regarded as one of most influential documents in the world. It is arguably the foundation to many of the rights and freedoms that we enjoy today. However, it also must be acknowledged that our world looks much different than it did 800 years ago. With advancements in technology, it can be said that our reality is turning into a digital universe. This begs the question, what would a Magna Carta look like in today’s digital world? What clauses would such a Magna Carta contain?
Principles of privacy are one potential area that could be explored in a new Magna Carta scheme. As technology evolves our privacy rights are infringed more and more, and the danger with this is that we may get used to it. Just like any human system, technology also needs to be regulated.
The introduction of police worn body camera technology is an example of the benefits of law enforcement, and the risks of a possible infringement on privacy. Currently the Edmonton Police Service is testing this technology. If proper policies and procedures are not in place, this type of technology has the potential to cause serious violations of the privacy rights of not only citizens but also police officers. The use of “body cameras means police capture lots of video and audio of their interactions with the public-mostly identifiable individuals. That means they contain personal information, and must comply with Canadian privacy laws governing the protection of peoples information.”  According to privacy commissioners, there are many concerns that need to be addressed such as, “warning citizens they are being recorded, deciding when or if recordings will be made in private spaces like homes, protecting the privacy rights of officers whose every word could be captured by the devices, and ensuring the security of the recordings.” 
On another note, police body cameras also pose many other challenges. This technology can add many costs and time constraints to an already burdened system, which may potentially result in charges being withdrawn or an individual’s right to a speedy trial being infringed. For example the devices, software licenses, maintenance, warranties, and storage, costs in the tens of thousands. As well, the request for full disclosure of all video footage can also “create a crippling workload for agencies with limited staff and technology…video files can amount to hundreds of hours of footage and often need to be redacted to blur faces and other sensitive information, or to mute audio.” 
As society progresses so will technology, and we need to ensure that our fundamental rights are not slowly being eroded. As a continuance of this example, do you think the web needs its own Magna Carta? Tim Berners-Lee, the inventor of the World Wide Web sure thinks so. Mr. Berners-Lee stated in a conference last year, “the freedom of the internet is under threat by governments and corporations interested in controlling the web. What sort of web do we want. How about we decide, these are, in a way, becoming fundamental rights, the right to communicate with whom I want. What would be on your list for that Magna Carta? Let's crowdsource a Magna Carta for the web." 
Over the past few months, we have praised the Magna Carta again and again for its plentiful contributions to the law as we understand it today. We have the Magna Carta to thank for habeas corpus, rule of law, human rights, environmental legislation, and the list goes on. We understand the Magna Carta to be a document which inspired much of our current legislation, including our Charter of Rights and Freedoms. But not all people think of the Magna Carta as just a model for present day legislation. Many arguments have been brought to the courts which seek to rely on the provisions of the Magna Carta as currently operating and governing law!
For example, in Harper v Atchison, the plaintiff filed a statement of claim which alleged that prior to being arrested by the defendants (police) for failing to respond to notices of traffic violations, he had given notice to each defendant “that by the terms of the Magna Carta, he was a ‘freeman on the land’ and consequently immune from ‘all statutory restraints, obligations and restrictions’” . His allegations were of negligence and breach of duty because the defendants arrested him in spite of the “treaty”.
What exactly is a “freeman on the land”? Chief Justice Rooke of the Alberta Court of Queen’s Bench explains, “Freemen-on-the-Land believe they can ‘opt out’ of societal obligations and do as they like.... A common theme in Freeman arguments is that state and court action requires the target’s consent” . He goes on to state that “Courts have encountered claims that Freeman-on-the-Land status, or the Magna Carta nullifies government or court authority” .
Clause 61 of the Magna Carta (which was only included in the original document and not revised editions) allowed 25 barons to distrain the King’s property if he was determined to have breached the Magna Carta. Purported to stem from Clause 61 of the Magna Carta is the concept used by freeman on the land of lawful rebellion: “Lawful rebellion in British freeman theory holds that one can lawfully choose to cease abiding by the laws, rules and statutes of a country by simply opting out of society” .
So how did the plaintiff in Harper fare? The justice on the case explained that while many arguments have been raised which rely on provisions of the Magna Carta as law, the courts:
have been unanimous in determining that the Magna Carta, albeit an important historical step in the development of the rule of law as practised in our parliamentary democracy, has no independent legal significance or legislative weight in the scheme of current Canadian legislation. Consequently claims asserting rights arising from the Magna Carta have not succeeded .
Before striking the plaintiff’s statement of claim, he goes on to hold that, “[i]n any event even the most generous reading of the Magna Carta does not lead to an interpretation that individuals may declare themselves free from all governmental and legislative restraint as is sought by way of relief by this plaintiff” . Despite multiple attempts to rely on the Magna Carta in the courts, it cannot be cited to legal arguments, even though it is credited with developments in modern law,
 2011 SKQB 38 at para 6 [Harper].
 Meads v Meads, 2012 ABQB 571 at para 174 [citations omitted].
 Ibid at para 407 [citations omitted].
 Harper at para 9.
 Ibid at para 14.
In a previous post we discussed the ethical standards that lawyers in Alberta must adhere to, and how that obligation can be traced back to the Magna Carta of 1215. We also discussed how in modern times, the profession is self-regulating in regard to the "discipline, admission, and regulation of lawyers" . In follow up to that post, we are privileged and grateful to have Brian Kash, a law professor at the University of Alberta & practicing lawyer, weigh in on the value of self regulation within the legal profession, along with the importance for those within the profession to maintain a high standard of integrity.
Question: What are the benefits and pitfalls of self-regulation?
In many ways – Lawyers are the best choice to govern Lawyers. Who understands Lawyers better than other Lawyers? There is a certain logic that people who understand the business of Lawyers (ie other Lawyers) are best equipped to monitor and guide other Lawyers and their conduct. By analogy, we don’t want a group of lay-people / non-Doctors evaluating the conduct of how a Doctor removed a spleen; we want people who themselves know how to remove a spleen – evaluating and monitoring a doctor’s conduct. The same logic applies to Lawyer’s governing other Lawyers.
The alternative to self-governing is a state governed model. Self-governing allows for our system to operate with less political influence than if our profession was state governed.
One of the benefits of self-governing is consistency. Although Alberta may be the wrong province for this example because the same political party has governed for a very long time; however, in theory, if the political power changed regularly and there was a state governed model in place, then how this model would be administrated could change with each changing of whichever party is in power. Self-governing avoids this issue.
There are public perception issues with self-governing. The public often believes that Lawyers will protect other Lawyers and that a self- governed system will not protect the client’s interests only the Lawyer's interests.
There is a perceived inherent conflict of interest when Lawyers govern Lawyers. Whether there is an actual conflict, may be less relevant.
Question: Why is it important for Lawyers in particular to maintain a high ethical standard?
Most people are Lawyers because they want to help others. When you break down what a Lawyer does into the simplest terms, you see that the profession is a helping profession. This puts Lawyers in a position of trust and power with clients who are dealing with legal issues. As Spiderman fans will all know "with great power comes great responsibility". Because of this position of trust and a Lawyer's "power" in the legal system, a Lawyer's conduct must be of the highest ethical standard. This position of trust and power brings with it certain duties that are owed to clients; these duties do not sit in isolation; they sit in a balancing act of a Lawyer's duty to himself or herself, the Law Society, to other Lawyers, to the public and society, to the Courts, and to all participants in the legal system. The balancing of these duties can only be achieved, if a Lawyer maintains a high ethical standard.
The topic of Lawyers maintaining high ethical standards fits in well with the debate about self-governing. Recently, in jurisdictions where Lawyers have been accused of not meeting this high ethical standard or where this high ethical standard was not enforced by the self- governing body, there has been a shift to removing Lawyer's ability to self-govern. Recently, parts of Australia moved from a self-governing model to a state regulated model. Jurisdictions in the United Kingdom are also looking at this type of a move.
In my view, if Lawyers want to have the trust of the public, then ALL Lawyers must – without exception – conduct themselves with the utmost integrity and in compliance with the code of conduct. If a Lawyer does not, then the self-governing body must act and the public needs to see the swift actions of the governing body. This is critical for self -governing to continue and is a critical element for the public to have confidence in Lawyer’s ability to self-govern themselves.
 Alice Woolley et al, Lawyers' Ethics and Professional Regulation, (Toronto: LexisNexis, 2008) at 52
The Supreme Court of Canada released today its long-awaited decision in the Loyola High School case, 2015 SCC 12, and I’m looking forward to an informal discussion on the case this afternoon with some University of Alberta faculty colleagues during one of the latter days of my visit here. And there will be much discussion of this case in the time ahead, but I am going to put down some preliminary thoughts right now:
In the case, the Supreme Court holds that there was a violaton of religious freedom rights when Quebec refused to grant an exemption to a Catholic high school from a requirement to teach a secular religion and ethics course in an entirely neutral manner. The case marks a significant vindication for religious freedom in a case where many were not sure where the Supreme Court would go in light of its own past decision in S.L. concerning a differently framed challenge by individuals in a public school to the same legislation.
However, there is a complex split in the case, with the reasoning split between a four-judge majority judgment of Justice Abella (with LeBel, Cromwell, and Karakatsanis JJ. suporting it) and a three-judge concurring judgment by Chief Justice McLachlin and Justice Moldaver (with Rothstein J. supporting their judgment). [As a footnote, I might note that the case was heard in March 2014 a few days after the Court had ruled Justice Nadon’s appointment to their Court invalid, so the Court had no reasonable option but to sit as a panel of seven – what would have happened with nine justices will remain forever unknown.]
The ways the two groups diverge are complex, interesting, and may impact on future cases (and require more argument to sort through):
(1) Justice Abella is able to strongly reaffirm her previous case law in support of a collective dimension to religious freedom with extra material in support (passage around para. 60), while the other judgment is trying to piece through various strands of case law, including Justice Abella’s previous dissent, to try to show that they are reaffirming a support for collective dimensions to religious freedom (around 92-93).
(2) However, Justice Abella does not go so far as to recognize religious freedom held by corporations, suggesting that this is unnecessary to decide for the case (33), while McLachlin CJ and Moldaver J are ready to affirm that some corporations hold religious freedom rights (95), though subject to a test that offers this right mainly to corporations with a religious purpose and acting in accord with that religious purpose (100, with 138 making clear they don’t necessarily see other corporations having such rights).
(3) Justice Abella tries to deal with the case in terms of the Doré analysis of uses of statutory discretion (36ff), while Chief Justice McLachlin and Justice Moldaver go directly to a freedom of religion analysis of the decision made (113).
(4) Justice Abella would actually allow more balancing of considerations and suggests that a requirement to teach about other religion in a neutral way may not actually be unconstitutional in every circumstance (71) whereas Chief Justice McLachlin and Justice Moldaver see a requirement that Catholics teach about Catholicism neutrally as a more direct freedom of religion violation (143).
(5) As a result of these differences, Justice Abella would send matters back to the Quebec Minister for reconsideration in light of the reasons, whereas Chief Justice McLachlin and Justice Moldaver would immediately grant an exemption for Loyola High School so as not to impose further delay on it having a remedy (165).
There will be more to sort out in the time ahead, but these are some thoughts on some differences in the judgments. That said, importantly, all the justices are effectively aligned in strongly affirming that a religious community has a right within freedom of religion to continue its existence through education and teaching and that a secular state must respect religious communities.