2015 Grand Moot


– Welcome to the Grand Moot. I’d like to first ask
if anyone could turn off the ringing functions
on their cell phones. Second, if any of you have class, I’m staggered to find out that there are classes that are permitted to continue during this event, but apparently they are. So if you do need to leave for class, if you could wait until
after the particular speaker is done before you leave. And generally then, I’d like to welcome everyone, students, faculty, alumni, and our guests from our generous sponsors at McCarthy Tetrault. It’s a great pleasure to
have all of you here today. And with that I’ll turn it
over to Dean Yaccobucci. – Thanks Sam. Thank You. So it’s my pleasure to welcome everybody to this years Grand Moot competition, entitled Freedom of Expression and the Right to be Forgotten. Which is generously sponsored by McCarthy Tetrault and for which we are very grateful. So advocacy training is
a big part of what we see as our educational
mission at the law school. And mooting is a big part of
that aspect of the training. This is the premiere
mooting event of the year. And indeed on of the highlights I think, of the academic calendar. So I thank you all for being here. So this year, the appeal is gonna address something for those of us of a certain age was a very familiar problem in law school. Which is whether search results generated by computer algorithms fall within the ammeter of protection for the freedom of expression established by section 2B of the Flavel Charter
of Rights and Freedoms. It also addresses the
legal and policy questions surrounding the right to be forgotten. We have three incredible
justices with us today. And we’re very pleased that they’re here. They will be the Honorable
Justice Michael Moldaver, from the Supreme Court of Canada, the Honorable Justice Robert Sharpe, from the Court of Appeal for Ontario, and the Honorable Justice Julie Thorburn, from the Superior Court of Justice. It’s a real pleasure to have them here. They obviously make this a really special, or are one of the markers of the really special occasions that is the Grand Moot. The mooters for the appellant this evening are Veenu Goswami and Joseph Bricker. The mooters for the respondent are Dave Marshall and Hanna Dangi. We look forward to hearing
both sides arguments. I won’t tell you which side said to me, I feel like I’ve got to make up a lot for this argument to work. I subliminally looked to my left, but I won’t tell you who said that to me. But I know there’s a lot of creativity and a lot of fun in the advocacy involved in this case. I’d like to thank again, McCarthy Tetrault for their support. Not only do they support
the event financially, but they give a lot of their time. And this year I’d like to single out some of the people who were especially supportive from the firm. So Paul Morrison, who I don’t think is here at this point. But Suri Batiner, Alder Marquez, Christine Wadsworth and Sara Corman. All of whom I gather were very helpful to our mooters. So thank you. And then finally I’d like to thank our two student co-chief justices. These are undoubtedly the hardest working people. Maybe the mooters too but in the group a lot of hard work goes into this event. They do everything from putting the problem together, which is no small challenge. But on top of that, you know, finding easels, carrying books, and everything else that makes this event the success it is. So thanks very much to Brett Huges and to Sam Green for all their incredible work. I’m probably omitting lots of other people who have contributed and I apologize for that. But this is a wonderful occasion with a lot of hands in it’s success. So thank you to everybody. And with that I will hand it over to the chief justices to say a few more words about the problem. (applause) – So I’m just gonna try to very briefly summarize the problem for you. I’m sure you all
downloaded both the problem and the facto when they were posted online and have read them thoroughly so this will just be a refresher. The appellant in this
case is Boondoggle Inc., Flavel’s largest and most
profitable search engine. And it’s challenging
the constitutionality of Flavel’s Right to be
Forgotten legislation, which we’ll get to in a minute. Flavel is a country with a identical common law history to Canada. And the Supreme Court of Flavel is the highest court in
the country of Flavel. Canadian jurisprudence is
considered, is not binding, but is considered strongly persuasive. A few years ago the government of Flavel organized a royal commission on internet and technology regulatory reform. Known as the Stewart Commission for it’s Chair Haymitch Stewart. Which founds that everyone from employers to land lords, to friends, family members and neighbors, use search engines to
get a lot of information and draw a lot of
conclusions about people. The Commission also founds that sometimes the search results for a persons name are unfair, incomplete and damaging
to their reputation in ways that are problematic. And in it’s view there was a gap in existing privacy protections because there’s information that is true, non-defamatory, and not protected by either common law or
statutory privacy rights. Yet, they can still unfairly and adversely affect a persons reputation. The government of Flavel
decided to introduce legislation to give citizens some
measure of control over the search results that display in response to their name. It enacted the Improving Search Results and Protecting Your Internet Legacy Act. Which establishes a Right
to Be Forgotten in Flavel. Under the act, any Flavelian can go to the privacy commissioner of Flavel and request that they make an order that internet search
engines remove certain search results that are displayed in response to queries for that person’s name. So the same content can still be displayed in response to other searches, but it’s the connection between the person’s name and those search results that it’s concerned with. So the privacy commissioner
may issue an order where the harm to the applicant caused by the search results outweighs the public interest in ongoing access to the search results. The litigation before us today emerged out of an application made by a one, Mr. Brettley Greenberg. Brettley Greenberg is a 72 year old lawyer and former politician. In 2000 he retired from a
successful 20 year career as member of parliament
for Flacaner Berge East, and he is known for serving as minister for library renewal and critic for delayed
construction projects. In his retirement speech Greenberg cited the desire to “retreat from the public gaze” and escape the constant
attention of journalist. He referred in particular to the editor in chief of popular local newspaper Alreaverez as “a vulture” and ” a disgrace to his family
and to his community.” (laughter) Mr. Greenberg successfully persuaded the privacy commissioner’s designate, review officer McCray to grant an order removing certain search results related to fraud charges that were laid against him by the crown that were later proven to be completely baseless and withdrawn by the crown. However, the fact of the
withdrawal of the charges was not reflected in media coverage. Or at least not in the search results displayed on Boondoggle Inc. All that people saw when they searched for Brettley Greenberg’s name was a big list of news articles about these fraud charges that he was completely innocent of. So the privacy officer granted the order and Boondoggle challenged it in the Superior Court of Falconer. So there’s three issues
today in the appeal. You can take a look at the program which contains the full problem and the three decisions made below by the superior court
and the court of appeal. But there’s three issues to be considered by the Supreme Court of Flavel. The first one, threshold matter is, does the Improving Search Results and Protecting Your Internet Legacy Act infringe the freedom of expression rights protected by section 2B of the Flavelian Charter of Rights and Freedoms? Are search results expressive activity within the meaning of section 2B? That’s issue number one. Issue number two, if the act is found to breach section 2B, if search results are
protected expression, is it nonetheless justified
as a reasonable limit pursuant to section one? And section three, which we saved the best for last, is the administrative law issue of if the law is constitutional was the decision made by Privacy Review Officer McCray a reasonable decision? So with that, actually one final note. So that’s the summary of the problem. You can get more details in the program. One thing to note is that
the mooters will come and each mooter will
have 20 minutes to speak. And at the conclusion the judges will retire to their chambers to deliberate. And then they’ll come back in and say a few words and we’ll make our concluding remarks. And as Sam mentioned, if you do need to leave for class, please make sure that you wait until the current speaker has finished speaking and sat down. So with no further
adieu let’s get started. (applause) – [Voiceover] All rise. – Good afternoon counsel. Is everybody ready to proceed? Alright, this is the matter of Boondoggle and the Flavel privacy commissioner. For the appellants, Mr. Veenu Gotswami and Joe Bricker. Do I got that right? And for the respondents, David Marshall and Hanna Dangi. Okay, good luck everybody. Mr. Gotswami are you starting? Alright, go ahead please. – Good evening Justices. My name is Veenu Gotswami and together with my co-counsel, Joe Bricker, I represent the appellant. Justices, the protection of reputation and privacy is a laudable goal. However, the act that
Brettley Greenberg relies on overreaches in it’s attempt
to protect those interests. It compromises the marketplace of ideas through it’s use of state
imposed collective forgetting. In doing so, it unjustifiably infringes upon one of the most fundamental freedoms in the charter, the right of all Flavelians to convey meaning through expression. The appellants will make three
submissions before the court. I will address the first, that the act violates
section 2B of the charter. My co-counsel, Mr. Bricker, will address our second submission, that the act cannot be upheld
pursuant to section one. And our third submission, that even if the act is
found to be constitutional, the decision of Privacy Officer
McCray was unreasonable. Barring any questions on the facts, I will proceed to the
first of those submissions, the act violates section
2B of the charter. These submissions begin at paragraph 14 of the appellant’s factum. The test for determining
a violation of section 2B was established by the supreme court in Irwin Toy and Quebec. That test has two parts. First, whether the restricted activity falls within the scope of section 2B. And second, whether the purpose or affect of the impugned legislation is to restrict freedom of expression. Both parts of that test
are satisfied in this case. I will speak first to the issue
of the scope of section 2B and then to the question of the purpose and affect of this legislation. Justices, search engine results fall within the scope of section 2B. The key question before the court at this stage of the analysis, is whether the generation
of search engine results is an activity that conveys
or attempts to convey meaning. The supreme court has generally taken a large and liberal
approach to this question. Holding in Irwin Toy, that the charter extends protection to an infinite variety
of forms of expression as long as they are nonviolent and some attempt is
made to convey meaning. We submit that the generation of search engine results conveys meaning in two ways. First, it reflects value judgments made by search engine operators about the quality of web content. – [Voiceover] Wait, in your factum, you call it editorial discretion. In what sense is there
any editorial discretion as a result of an algorithm? Isn’t it just a mathematical formula? And there’s absolutely no regard to the content or quality
of what’s expressed? – Justice, the discretion
comes at the stage when the algorithm is being conceived. And the preferences for what constitutes good web content are inserted into the algorithm. You are correct that this is not like traditional editorial discretion, when individual pieces
are picked or not picked, but it constitutes discretion with respect to what content is valued and what content is not. And by extension, what content should be included in a ranking of web results and what content should be excluded. – [Voiceover] But an editor would pay some heed to the interest, the accuracy, the impact that a story might have. All of those human judgments that go into the editorial discretion the algorithm eliminates all that. It’s purely a question of mathematics. – Justice Sharpe, it’s not purely a question of mathematics. It is mathematical in operation, but the preferences
that are being conveyed are not mathematic in nature. The criteria for what constitutes good quality web content
includes things like, websites with embedded
high quality media content, easy to navigate site design, websites that are consistently referred to by other websites, and as we all know,
websites with high traffic. Those aren’t necessarily
mathematical preferences even though the translation of those preferences into search results takes place through an algorithm. Justices, having spoken to that criteria, I think it’s important here to note where exactly the meaning comes from. Every time a list of
search results is generated and one website ranks above another, a value judgement has been made about each website relative to each other. That form of opinion and
that form of judgment is at the heart of the
section 2B guarantee. There is a wealth of jurisprudence establishing the fact that your decision about what to include in speech, falls within the section 2B guarantee. In Slate Communications and RJR McDonald, the supreme court also recognized that the decision about
what to exclude from speech also fell within the ambit of section 2B. In conjunction, these cases provide jurisprudential basis for realizing that what
to include or exclude from a subjective ranking also fall within the
purview of section 2B. The second way in which search engine results convey meaning is through a form of advice. It’s important I think, to conceptualize it as a form of advice provided to web consumers. Search engine results reflect a commercial opinion on which results are most relevant and useful to a particular web consumer. And I think an illustration here might help make this point. If Boondoggle tomorrow published an article in the Calgary Herald about the 10 best websites on the internet for consumers seeking
to buy British Bulldogs that article would incontrovertibly be covered by section 2B. The search results that
Boondoggle generates are conveying the exact same
meaning as that article. To make a distinction then between the two of them would be making a distinction on the basis of the form that a particular entity has chosen to express it’s opinion. And those kinds of distinctions between non-violent expression were expressly rejected by the supreme court in Irwin Toy. – [Voiceover] Isn’t the opinion that of the people who use the search engine? It’s not Boondoggles opinion. It’s purely generated by consumerism, by what people select. So how is that expression
of Boondoggles opinion? There’s two things to note
there, Justice Sharpe. The first is that even if the only thing that Boondoggle valued in it’s criteria was consumerism and how often something had been searched for, it’s often easy to forget that even that isn’t necessarily what is has to display. We can easily conceptualize
a search engine that doesn’t think that
the most popular websites are what ought be displayed to consumers. So that in itself is a kind of advice about what is most
relevant to that consumer. Namely, that what other people have been searching for is relevant. But beyond that, Boondoggle institutes other criteria, as alluded to earlier
about what constitutes high quality web content. They mean it’s not just about what most other people have been searching for. – So you’re saying then that there is a subjective element to ranking of the information? So that for example of the 2,000 articles about Mr. Greenberg there is a value
judgement in deciding that these three articles will be on page one and these ones will be on page 100? – There is a value judgment with respect to the criteria Boondoggle has talked about. Not necessarily Justice, as
I think you might be getting to value judgments about whether false fraud allegations are good or not. It’s a value judgment
strictly with relation to the criteria about web quality that Boondoggle has instituted. – But it sets out the criteria so that, because of the criteria that they choose to insert as part of the algorithm certain pieces of information about Mr. Greenberg would turn up on page one while other bits of information about Mr. Greenberg would turn up on page 100? – [Veenu] That’s correct Justice. – Let’s assume that it is
expression for a moment. I’d just like to tease out
why we should protect it? What’s the value of it? Officer McCray, as I understand it, made a finding that search engine users only look beyond the first page of the search results 10% of the time. And you accept that finding I take it? – [Veenu] Yes, Justice. – So what public benefit is served by expresssion which
leaves 90% of it’s users with a false and misleading impression of the person who has the grievance? Can you help me out with that? – [Veenu] I can Justice. And I think it’s important here to distinguish between two things. The search results that have turned up in this specific case and the general activity of generating search results as expression. And I’ll deal with both of those. When we deal with the general activity of generating search results, because if we accept the governments submission that they don’t fall within the scope of section 2B, a lot of potential search results beyond this one could be restricted without charter scrutiny. There is tremendous value to ranking certain websites above another. It performs a important service in allowing consumers a way to have organized access to the greatest catalog of information in human history. And the centrality of search engines to the way we use the internet means it’s often easy to take for granted that we have at our fingertips a way to search for any term we may want to and get a particular ranking of results. But that ranking orders and structures the way consumers access information on the internet. And is as a result, very important expression because it touches on political
expression potentially, it touches on any potential
kind of information that section 2B might be interested in. With respect to these
specific search results and what expressive value
they might have there. The first thing I’d point to is that is an inquiry better pursued with respect to the analysis of the specific decision. So even if these specific
set of search results might have worked to Mr.
Greenberg’s detriment, a finding that search
engine results as a whole are not protected by the charter has much broader implications beyond just that one decision. And the contention about why the specific order is unreasonable will be followed in greater depth in my counsels submissions. – [Voiceover] Would you
take that same position on the constitutionality
of this legislation if the privacy commissioner could simply order the re-ordering of the information on the first page of the search results? – Justice, that is a
very interesting question because it would still constitute, for the purposes of section 2B, an infringement of Boondoggles expressive rights because there’s a reordering there. That particular inquiry
might become relevant though at the minimal impairment
stage of the analysis. Which, we’ll get there. Because that is an alternative, as you pointed out, that might protect rights better. So whether or not that
is overall constitutional I think is an inquiry
better left to the bench. But I think in terms of
a infringement of 2B, it is likely a less severe
restriction of section 2B, but an infringement nonetheless. Justices, it seems clear then that the activity that Boondogggle is engaged in conveys meaning. And it fits within the framework established in Irwin Toy and would therefore appear to fall within the scope of section 2B. However, the government rejects this conclusion on two grounds. First, they urged this court to reconsider the Irwin Toy framework in light of the new challenges posed by the 21st century. They also say that the use
of an algorithm is fatal to Boondoggles section 2B submission. Neither of those objections
in our view are sufficient. And I’ll deal with each in turn. The government in this
appeal asks this court to institute a stricter
di minimis standard for what constitutes
meaning under section 2B. The appellants agree that violent activities and activities that make no attempt to convey meaning should not fall within the scope of the guarantee. We disagree that the 21st century requires an additional inquiry about whether or not that meaning is important enough, to again, garner charter protection. And we disagree with that for two reasons. The first is that it is a stark departure from the large and liberal approach to section 2B that courts have taken. And merely the fact that we’re in a new century with new technology is not in itself a reason to abandon well established constitutional jurisprudence. If anything, the fact that we live in an age with new technology means that we live in an age where Flavelian’s will increasingly find new, unconventional, and unanticipated ways of expressing themselves. And courts must stay vigilant to ensure that the government cannot sensor these new forms of expression without charter scrutiny. The second reason we think that a di minimis threshold for meaning is dangerous is that the importance of any piece of expression may not be evident at that particular moment in time. And may only become clear to the court years after a particular
decision is handed down. And that is also true for particular pieces of information by less powerful groups in society that may not be viewed
as important enough, but not because of the
merits of their views, but simply because of the number of people who subscribe to them. – Let me ask you about
that though for a second. You know that one of the prior decisions, I guess of Officer McCray, related to a woman who’s husband was brutally killed in a gang slaying. It happened, I don’t know, 30 or 40 years ago. And every time, and obviously she went through a lot of stress and trauma over the whole incident. And every time someone plugs in her name that incident comes up. And her complaint to the commissioner was, you know, I’d like to put this behind me. It’s been 30 or 40 years and all this does is resurrect the pain and suffering that I went through 30 years ago. And for what purpose? And I ask the same question of you. Why are we protecting? What is there to protect there? What is there of value in protecting that expression? – [Veenu] I’ll deal specifically
with that example Justice, because I think it
provides a good delineation of what our stance is on those issues. Our heart goes out to those people. And the purpose of that
appeal is not to say that those people are not worthy
of some kind of regress. We merely think this act
is a poor way to do that. We are fine with more narrowly tailored legislation that deals with that problem. If the problem is that victims of crimes are having mentions of their crimes, if they’re having pictures, if they’re having videos
put on the internet. The government is a position to deal with that problem specifically. But this act doesn’t do that. This act creates a broad ranging, and here I recognize Justices, I’m slightly infringing upon my co-counsels excellent submissions– – [Voiceover] That’s my
fault probably but, sorry. – But it is worth remembering that the government has in it’s power the ability to create
narrowly tailored legislation and we are supportive of that. But what we are not supportive of is an act that creates
a broad ranging right for people to submit requests that will undermine the adversarial system that accesses the public interest and that will be much broader than those cases you’ve identified that everyone in this room should be sympathetic to. – Well, this may be something
for your friend to answer but, what kind of legislation would you propose that would protect the widow? She’s not a victim of crime. She wasn’t. It was her husband that was the ultimate victim, I guess. So what would you say? How would you frame the legislation? Or maybe you wanna
leave it to your friend? – Oh no, I think the person I’d like to leave it to is the government. I think that they are the body that has the obligation to frame that legislation. – [Voiceover] But you’re saying that they could tailor it, they could tighten it etcetera. And I’m just wondering if you could just help me out as to how? And then we’ll ask them. – Great. (laughter) So to take a stab very quickly at forming what will likely be a complex and heavily debated piece of legislation, if the issue is that the
relatives of crime victims are having difficulty with closure, then that is something we can address. With terms of people who’ve been the victims of brutal crimes, their relatives can apply for specific regress in those cases. And that might be a more
narrowly tailored acceptable law. The specific contours of which the government should
likely have thought of before passing this wide
ranging piece of legislation. – [Voiceover] I got a feeling
it would be a legislation that would make the Tax Act look small. (laughter) When you try to think of all the examples of all the people who might feel that their privacy was being invaded. – I think I understand what
you’re getting at, Justice. Our submission here is not that every single person who might be harmed in some way deserves their own law. But merely that their are some cases that are particularly are
deserving of attention. And those are laws that
we can narrowly pass. But this law doesn’t
confine itself to them and the government is a
better position to asses that. I want to quickly speak Justice, to the question of infringement before I’m out of time. And these submissions
begin at paragraph 32 of the appellants factum. And as we’re already I see engaged in a discussion on section one, I do want to point out two features of the section 2B analysis that will have implications
for section one. It’s not just Boondoggle’s freedom of expression that is at stake here. When accessing ultimately wheter or not this act can be upheld
pursuant of section one, the severity of the breech of section 2B is an important consideration for this court to keep in mind. This isn’t just about Boondoggle. This is also about the
web content creators who’s websites and content is made meaningfully more difficult to access as result of this act. – [Voiceover] Is that
really what they’re doing? Because aren’t you really asking under the auspice’s of
section 2B charter right to be allowed to place undue emphasis on some content as
compared to other content. – [Veenu] We’re asking for the right for Boondoggle in this case, to be able to frame expression in accordance with it’s
opinion and criteria. The question of whether or not it’s undue, I think, sort of– – Well but you’re
setting out the criteria. You’re deciding you could
change the algorithm for example to tie acquittal to Mr. Greenberg’s name and that would then ratchet up all the cases on acquittal to page one as opposed to page 100. And really what you wanna do is you want to change that and it will allow undue emphasis on the search words that you’ve chosen, which are leading the reader to a misleading impression. Although the information may be correct, it’s only a half answer and therefore it leads the reader to be misinformed. – I’ve reached the end of
my time so if I could have a bit of time to address your
question Justice Thorburn. What we are asking for is not the right to be unfair to Mr. Greenberg specifically. What we are asking for, what Boondoggle is asking for is the ability to frame web content in accordance with criteria. The result of that will in some cases, unduly perhaps emphasize particular pieces of information for Mr. Greenberg. For many other people it might emphasize positive aspects of their legislation. This is not a purposive decision to make Mr. Greenbergs life much harder. It’s a general policy
and a general criteria, the application of which
has led to these results. What Boondoggle seeks is the right to not have the government alter the emphasis in those results. And the emphasis, it’s worth keeping in mind, in any set of results that pass the privacy commissioner, in accordance with what an agent of the state in this case, used to be the proper emphasis as opposed to a private actor. – But if it leads the
reader to be misinformed because they’ve only got half the story, how does that fit within
one of the objectives of the need to facilitate
a marketplace of ideas to seek and attain the truth? It’s not furthering that
objective at all, is it? – We need to view Justice, the concept of the marketplace
of ideas also broadly and also in a comparative context. It may be the case that in some cases, the results that are prioritized on Boondoggle by it’s criteria are not always factually true in the sense that they
might have alligations that were proved to be unfounded. But applied broadly, in many more cases, there could also be
instances where information someone seeks to de-link
and remove could also of contributed to the marketplace of ideas and is removed completely from the ambit of certain search terms. That could also be equally, if not more detrimental to the marketplace of ideas. This appeal is about which actor is in the best place to make those decisions. And in this particular case, having individuals with
their self-interest remove or keep certain results with what suits their interests best is a worse way to do that than having the criteria of independent search engines. I can see I have reached the
end of my time, Justices. Barring any further questions
those are my submissions. – [Voiceover] Thank you
very much Mr. Goswami. Mr. Bricker? Do you have anything left to say after the questions we asked Mr. Goswami? Just a few things Mr. Moldaver. Good evening Justices, my name is Joe Bricker. And I’m going to be continuing submissions for the appellant where my colleague Mr. Goswami left off. Now, Mr. Goswami told you about how the act infringes the freedom of expression that Flavelian’s hold so dear. In my remarks to you today I want to make two arguments. First, I will argue that to the extent that the law infringes section 2B is not justified under
section one of the charter. Second, I will argue that even if the law is constitutional rather, Officer McCray’s decision
to grant an order to Brettley Greenberg was unreasonable and should therefore be overturned. Now to sum up my submissions
to you today Justices, in a free and democratic
society like Flavel, whether search results are
relevant or irrelevant, adequate or inadequate, complete or incomplete, is best left to ordinary Flavelian search engine users and not to an agent of the administrative state. And this is especially true in the case of Mr. Greenberg. This brings me to the first argument which is that the law is not saved under section one. And that begins at paragraph
41 of the appellant’s factum. Now, I’d just like to remind the court that as ever under section one, it remains the governments burden to show the court that
the law is justified in a free and democratic society. And we say that in this case, their unable to. Now, the appellant here agrees that the law clears the first
two hurdles evoked. We say that it’s not
minimally impairing however, and that it fails at the
overall proportionality stage. Now the real core of that analysis comes at the overall
proportionality stage. But I do want to address
some of your concerns Justice Moldaver, about
minimal impairment. Now, there are many other less impairing alternatives that the government could have imagined in drafting this act. – So we’re assuming that it’s got enough value to make an expression. Now we’re into minimum impairment. And you’re gonna tell us why it’s expression that as my
colleague pointed out, has the affect of misleading perhaps 90& of the people who look at the search results. Can’t be very high up
on the scale, can it? You’re a little bit higher than obscene material I suppose, but not a lot. – Well, Justice Moldaver, as Mr. Goswami emphasized, section 2B does indeed give a very broad guarantee. Now, the percieved value of the material may affect to some extent, the way we do the section one analysis. But when you consider how important Boondoggle is to the way that people access information on the internet, the very activity of ordering
particular search results is extremely important in a
free and democratic society. So to the extent that it may work some evils in some cases, we think there are other
ways that the government could have chosen to deal with that. They declined to do so in this case. So to the extent and I’ll
give you some examples. – [Voiceover] But what
responsibility do you have? What responsibility do you have with these people that are preparing these algorithms or whatever they do, to try and make sure that the information that you get out to the consumer is accurate as possible? And not misleading? – We have no responsibility– – [Voiceover] You have no responsibility? – No. We have no responsibility. To the extent that people want to use true information for nefarious purposes, there are other ways
that can be dealt with. Now of course we do comply, Boondoggle that is, with all relevant laws in the jurisdiction including this one of
course if this appeal fails. But… (laughter) – [Voiceover] That’s very generous of you. (laughter) – So, if for instance
there is an injunction that requires Boondoggle to take down certain results that are
listed in connection to IP infringement or something like that, Boondoggle will comply with an injunction to take down certain search results. But the problem here is that the law is so over-broad as we get into a little bit later, that it actually has a huge affect on lots of information that will be in the public interest. – [Voiceover] If we take the analogies, I don’t know if you’re familiar with the Butler case on pornography. – I am Justice Sharpe. – [Voiceover] Yes, well remember, in the supreme court in that case had this very sweeping broad piece of legislation and all of a sudden it got narrowed right down. So couldn’t we do what
you’re asking us to do by way of just of interpenetration? And giving some more flesh on the bones of this rather bare statute? – In our respectful submission, no Justice Sharpe. And the reason is the statue is as you say, extremely fair. It asks the decision maker to consider only two criteria. The public interest and the adverse affect on the applicant. – [Voiceover] But aren’t
those things that are subject to judicial interpretation just like meaning of obscenity was significantly narrowed in Butler? – Of course they are Justice Sharpe, but there are a few concerns here. First, where we give
administrative decision makers the power to interpret terms like the public interest
or adverse affects, we generally do that in
the context of an act that has a more elaborated purpose section than Pipeda does. – [Voiceover] But I’m
giving you an analogy to one that didn’t and where the court did do that. – Well of course Butler is
not binding on this court and as a court of superior jurisdiction (laughter) you would of course be
entitled to reverse that substantial rewriting of
the statute engaged in by the Supreme Court of Canada. – [Voiceover] Can we carry
on, on a few other cases that you might want to get us
to overrule while we’re here? – I’ll give you a list afterwards. – [Voiceover] Thank you.
(laughter) – [Voiceover] Fortunately, nothing from the supreme court is binding on this court. – Fortunately. So I do want to move into the overall proportionality analysis now because Mr. Goswami and I view this as really the core of
where this law falls. It really falls at the final hurdle. And at this stage of the
Oak’s test the court asks, are the negative affects of the law proportionate to the objective? And are the positive affects of the law, do they outweigh the negative affects? And we say that in this case they don’t. In it’s attempt to protect
privacy and dignity and to protect privacy and reputation, the law unacceptably undermines freedom of speech. And there are four deleterious affects to use the term of of art from the section one jurisprudence, that we would like to point this court to. The first is that the law is often limited in it’s ability to achieve it’s goals and will often work at
cross purposes to them. Now, you could think for
instance of Mario Gonzales, the Spanish man who
initially obtained an order that established the European
right to be forgotten. Nobody would have known who this man was and he would never have got a 10 minute segment on
the John Oliver show if he hadn’t actually
gone to a court in Spain and asked to have results about his foreclosure proceedings removed from Google. So often– – But this isn’t really
anything about being forgotten. Is it? Because nobody’s suggesting that that the information should be removed. All we’re saying is that you’ve decided to highlight certain information as opposed to other information. And all this man is saying in the face of uncontroverted evidence that he has suffered because of the highlighting of certain information at the expense of others. To redress the balance and say all the information is still gonna be there it’s just that instead of highlighting some information you either may decide to highlight different information I.E the acquittal or at the very least
not have the hyperlinks and have an even playing field. So that people reading about this man don’t get a misimpression about the kind of person that he is. – There are two things
we would say to that. The first is that undermines the marketplace of ideas. And we’re going to get to that point a little bit later in my submissions. So I’ll leave it for now. – [Voiceover] But does it?
Because what it does is in fact, would enhance the marketplace of ideas. Wouldn’t it? Because
there would in fact be just as much information available. We’re not talking about removing anything but a hyperlink which
links one thing to another, thereby, highlighting something. – [Joseph] Even if I accepted the premise of that question Justice Thorburn, the problem is that it gives so much discretionary power to the privacy commissioner in such vague terms that we don’t accept that result is what’s actually going to happen if the law is carried
fully into operation. So, I could talk about
that a little bit now. – Just before you get to that and I apologize for interrupting you. But you said something a little while ago that maybe the best way to deal with these things is to have the individual enjoying companies like Boondoggle. Could you just tell me what the basis of the injunction would be? And what the cause of action? Just flush that out for me a little bit. – It could be liable, Justice Moldaver. It could be intrusion upon seclusion, a torte that the Ontario Court of Appeal very wisely acknowledge in 2012. (laughter) There are all kinds of causes of action– – Did that case come to the
supreme court, by the way? – [Joseph] It did not. – Oh, okay. (laughter) – [Voiceover] So obviously right. (laughter) – [Voiceover] Just you wait. – But as I seem to recall Justice Sharpe, that the Ontario Court
of Appeal recognized that in a free and democratic society, we have to expand the protection
of privacy incrementally. And we have to make sure that we’re not treading upon the rights
of freedom of speech that might otherwise be affected by drawing privacy rights too broadly. And so, in that case, Jones, the Ontario Court of Appeal was very incremental in recognizing the torte of intrusion upon seclusion. But to the extent that a suit is brought under that cause of action or under liable or under IP infringement, Boondoggle will comply
with all legislation– – Is there freestanding right, is there an action for
just breech of privacy under the charter? – There is not and that’s precisely one of the points that we make. There is a freestanding freedom of expression under the charter, but there is no freestanding right to privacy under the charter. And so when we’re doing the analysis here we have to recognize that in some sense we’re talking about one of the fundamental freedoms in the charter. One that the supreme
court in sharp recognizes. In some sense underpinning a lot of the other
freedoms in the charter. First, as something that, while it may be protected by
the charter to some extent is never explicitly
acknowledged in the charter and isn’t as fully protected
as some might like it to be. – But nonetheless, if both
privacy and reputation have been held to be charter values that can be weighed against and limit freedom of expression you would agree with that wouldn’t you? – Certainly, Justice Sharpe, it’s just our submission that in this case the government got the balance wrong. And one of the reasons they got it wrong is that they’ve given, in our submission, too much power to the privacy commissioner in a context that is ultimately
unsuited to adjudication. Now I would note here that the act doesn’t actually define what public interest
or adverse affects are. So it’s not like for instance, the Ontario Securities Act which says what the purposes of
security regulation are. It doesn’t do that. It simply says that the goal of Pipeda is to protect privacy. So for any one privacy review
officer to interpret this act is really just piling
circularity on circularity. The second thing that we would say is that it’s really difficult to know in fact, what might be in the public
interest in the abstract. So you can imagine the following example. Imagine that there is a
case of a spent conviction for let’s say a sexual offense. Now, somebody who has a conviction, they’ve served prison time, may very well want to have certain results removed from the internet. And they may go to the
privacy commissioner and say I want those results to be removed. Now there are two public interests that might be at stake there. One would be in letting the offender get on with his or her life. And the second would be in allowing the public to know what that person might
have been up to previously because they may have ligament concerns about who’s living around them. And so the only way you can really deal with these two incommensurable interests is to say or to make a
determination in the abstract that you think one of them is
more important than the other. And so the problem with that is it undermines
predictability, consistency, and the rule of law more generally. Another affect that we
would like to point out is that the law does drastically undermine freedom of expression while only minorly
protecting the interests that the government claims it serves. Now, the respondent will very likely say, when you question them about this, that there’s only a minor infringement of freedom of expression here. And they may do so in terms vaguely, like your question Justice Thorburn. The difficult question here though is in order for their law to have any meaningful impact on what’s on the internet and to have the affects that they say it does, it some sense it will actually have to have significant affects on what content people
can actually access. And articles on the internet, the actual third-party content, that’s incontrovertibly
protected by section 2B. If I write an article about Mr. Greenberg, that’s incontrovertibly
protected by section 2B. And so the real question
we have to get to here is what is the trade off
between those values? – [Voiceover] But you keep talking about this market place of ideas and allowing everybody to have access to everything and I don’t disagree with any of that, but what you’re doing is you’re not. You’re not saying everybody should have access to all information. You’re saying you should emphasize some at the expense of others. So really it’s not really about privacy. It is about access to information. And you should have full access to information in a fair way. And why is that not a valid objective? – It’s not a valid
objective Justice Thorburn because Boondoggle has made a particular determination about what is fair here. And so, in our view, ranking websites based
on the criteria that Boondoggle search engine
engineers have picked is actually a fair way to determine, given all of the interests
that are at stake among the three billion some
odd users of the internet, that is actually a fair way to present information on the internet. As you suggested in your earlier
question Justice Thorburn, this information isn’t
being gotten rid of, it’s simply being ordered
in a particular way. But that way is actually very fundamental to how people access
information on the internet. Because as the evidence in the order shows people often won’t go past a few pages of Boondoggle results. – So would you have any difficulty then in modifying the algorithm
to make it fairer? So in other words, you wouldn’t have to take out any hyperlinks if
you change the algorithm such that acquittal
would show up on page one and you could have all of the
other information you had? It’s just an easy slight
modification to the algorithm. Isn’t it? – Well, if anybody has a proposal to make that kind of tinkering with the algorithm commercially viable we would be happy to hear it. It’s very difficult to do that kind of tinkering with the algorithm in a way that actually presents to people what they want to see on the internet. – How is your submission
consistent with the grant and towards responsible journalism? There of course, freedom of
expression is recognized, but the court I think
quite properly said that there’s an obligation on
the media to be responsible. And to show that they’ve been fair. So why because you use algorithms should you be exempt from
this sort of obligation that is imposed upon every other media? – Well, there are a few
reasons Justice Sharpe. One is that we are not
actually creating the content. Boondoggle is presenting
hyperlinks to the content. Another reason is that, in it’s own view, Boondoggle is being fair by using the criteria in it’s algorithm and presenting the information that people want to see. And Mr. Goswami elaborated on some of the criteria that go into that algorithm. But Boondoggle is actually being fair to users of the internet. And there are lots and lots of search engines that use different criteria to rank results. And they may also be fair too. But the problem we have here is with giving this much power to the privacy commissioner to enact what is an affect state imposed forgetting with very, very little discretion or very, very little
control of that discretion. And one of the things I
would just like to point out as I get near the end
of my time, Justices, is that when this act
comes fully into operation, you’ll note that this is
the first judicial review of an order under the act. When more orders start
to come Boondoggle’s way, there will be lots of times when Boondoggle simply won’t want to stand up for what is in the public interest. And the simple reason for that is because there’s no commercial incentive for a search engine actually
to oppose any one order. The reason for that is because ad’s are displayed on search engines that’s how the search engine get’s paid. In response to a particular search query and not necessarily in response to the actual results that are shown. Now Boondoggle of course, is a very public spirited search engine and it takes freedom of
expression seriously. But if Boondoggle had to deal with four or five hundred thousand, a million of these kinds of requests– – [Voiceover] He’s gonna be a busy guy. – It would be. And it would be very difficult for them meaningfully to contest any one order. Even if the results in question are acknowledged to be
in the public interest. And I would note also that in the case of the Flavelian defense minister who sought an order to suppress search results linking to his rejection of ice cold Camembert on
a Flavel Airways flight. (laughter) He was actually slapped
with an adverse cost award. So if Boondoggle is facing the possibility of an adverse cost award in that context it’s going to be much less likely that Boondoggle will actually stand up for the public interest
in particular cases because it’s simply
commercially impossible or at least nonviable for it to do so. – Well I’ll agree that
it’s a little frightening to think that we’re going to leave the public interest in
the hands of Boondoggle. (laughter) – It’s a lot more frightening to think that we would leave the public interest in the hands of a privacy commissioner who is bound only by the two lines of text in this very, very sparely drafted act. That’s a far, far more scary prospect I would suggest Justice Moldaver, than is leaving the public
interest in our hands. Which it isn’t fully in any case. Now I do realize I’m almost
at the end of my time. So I’d like to take just a
brief moment to conclude. I would note that I haven’t
made any submissions about the administrative
law aspect of this, that was mainly in the interest of time and also to avoid subjecting the audience in this court to arguments about Canadian administrative law. (laughter) So in concluding, Justices, the act drastically undermines Flavelian’s freedom of speech in an act of unjustified
state imposed forgetting. For these reasons the
act should be struct down and in the alternative the
order should be overturned. Thank you. – [Voiceover] Thank you Mr. Bricker. (audience chattering) – Your cheerleading section’s leaving now. – They think we’re not
calling on the respondents. (laughter) – Alright are we ready to go? So Mr. Marshall, your response? Go ahead please. – [Voiceover] Good evening Justices. My name is Dave Marshall. And I along with my co-counsel Ms. Hanna Dangi, represent the respondent, the government of Flavel, in the case before you this evening. Justices I will submit to you that the Improving Search Results and Protecting Your Internet Legacy Act does not engage the section 2B expressive charter right of the appellant search engine. My co-counsel will proceed to make arguments on section one and the administrative nature of this decision respectively. My submissions begin at paragraph 19 of the respondent’s factum. Justices, we agree with the appellants that the freedom of expression is the bedrock principle in any democracy. It constitutionalizes
the right of Flavelian’s to produce and to receive meaning through expressive activity. Indeed that meaning may be challenging, disturbing, incorrect, or as the voluminous
quantity of cat photos on the internet suggests, of marginal or limited social value. Now, the supreme court of Canada in it’s infinite albeit nonbinding wisdom, has held the freedom of
expression to be quite broad. But it has been equally
authoritative in stating that the freedom of
expression is not unlimited. This freedom must be promoted, but it must also be protected. The appellants have suggested to you that we should protect
as expressive activity, not only all of the
content on the internet, but also the algorithmically produced rank ordering of that information that may be hypothetically produced by an infinite number of search results entered every second of every day by ordinary Flavelians. We submit Justices that to do so would be to trivialize
a fundamental guarantee that the supreme court
of Canada has held to be the corner stone of democracy. My submissions to you tonight can be divided into two sections, Justices. The first is that we submit this court should revisit the di minimus threshold for what constitutes expression under section 2B of the charter. And second, even if this court does not revisit that threshold this evening, search results cannot be
justified as expressive activity under the current Canadian jurisprudence. Turning to my first submission Justices, at paragraph 23 of the respondents factum. The appellants are correct that apart from a narrowly circumscribed exception for violent expressive activity, the court has taken a
very minimal threshold to determining what is
expressive activity. That question put by the court in Irwin Toy is quite simple, does the activity have meaning? And in the 20ith century
this was never an issue. The vast majority of Canadian cases on the freedom of expression or in those cases rather, the presence of meaning in a series of different activities was not contested. Even the most disturbing
types of activities. Including child pornography
and hate speech. There was no contest over
whether there was meaning. In the 21st century however, with the ubiquity of
machine generated speech, ranging from simple alarm
clocks to luxury vehicles, whose hundred millions of lines of code do everything from warn
about lane departures to spoof diesel omission results. In this era, it’s significantly
harder to tell Justices, what constitutes expression. So our submission to you is that this di minimus threshold, what is meaning, should finally be defined. And meaning should be defined with reference to the three principles that this court has already held to underpin the freedom of expression. Those are the marketplace of ideas, access to the instruments
of democratic governance, and last but not least, self
fulfillment and actualization. Contrary to the suggestion of my friends, this is not an unprincipled approach. In fact, it’s suggesting to the court that instead of carving out new niche narrowly circumscribed exceptions to the freedom of expression
in the 21st century, this court should take
a principled approach to defining expression
given the numerous range, or the huge range of numerous types of machine generated speech. – [Voiceover] We’re
dealing here with the way most people get most of their information in the 21st century. This is how they get their information. They go to instruments like Boondoggle. And so in terms of expression, expression is also the
right of the listener, the rights of the user. In terms of the rights of the ordinary person to get information, wouldn’t we be relegating the charter to the era of the quill pen if we said this doesn’t cover this type of information? – The appellants have suggested two lines of argumentation, Justice
Sharpe, on that point. That the rights of web users
are themselves infringed. And I’d like to deal with
each of them in turn. One is the type of
claim that we may expect to be put forward by
those individual users that their own freedom of expression has somehow been infringed
by search results. And in that case, whether or not their activity is
expressive is not in contest and therefore that infringement would have to be determined on the basis of the purpose and affect of the impugned legislation. But first I’d like to
deal with their other argument that they’ve put forward which is that search results are somehow such an important means of communication that they themselves, that is the search result process, should deserve protection under existing Canadian case law. With respect, the Canadian case law has only done that in a very narrow set of circumstances where the form of communication
itself has meaning. The archetypical case is Ford and Quebec, where it was held that language itself has such meaning, such
self expressive value that it should be protected. As to the expressive rights of users and any claim that that
they may put forward, that would ultimately as I say, turn on the purpose and the
affect of a legislation. It’s clear in the governments
mind in this case, perhaps not surprisingly that the purpose of this law does not target users of the internet. And nor is to affect– – Well it certainly would affect. If there’s a right, this vague right, to suppress search results is upheld that would certainly affect the rights of users of the internet, wouldn’t it? I mean, as I say, this is
how people get information. And now we’re saying that no, you can’t just go to the internet. The governments gonna tell you what information is acceptable for you a member of the public, to get. We’re gonna filter this information and tell you what you can get. – Justice, the affect of the law is not to remove the information
from the internet. As my co-counsel will speak at length to more eloquent than I can, in a moment. But the information that
is targeted by this act or that listed as a URL to be removed in accordance with any application given to the privacy commissioner is not taken away from the internet. – No, it’s there but you won’t find it. You could find it if you real– but it’s like saying, you know what, the index to the book, we’re gonna tell you
how to index this book and if it’s something
that we don’t really like then you don’t have to
put it in the index. – I’d suggest Justice Sharpe, that in some cases the search results that are being removed may not be the first or second most popular results on Boondoggle. And the search terms that actually create a link to that particular
underlying content at a much higher position
will remain online. So the appellants have not demonstrated nor can they demonstrate based on how search engines work that the affect of this act will be to even make information at large more difficult to find. It will de-link certain URLS from search terms that involve someone’s name if you’re trying to get an overall picture of someone through Boondoggle. And that Justice Sharpe, I think has a very strong connection with Justice Thorburn’s
question from earlier to our friends about the
marketplace of ideas. So with your indulgence I’d like to speak very briefly about the benefit of this act to the marketplace of ideas. This new test, this new threshold test that we have suggested the court adopt is based in one of it’s three tenants on the promotion of this
marketplace of ideas. And I think Justice Thorburn’s questions rightfully pointed out that
this type of expression, not the underlying expression of web content creators or
users of search engines, but the actual search results themselves are not only of tangential value in contributing to the
marketplace of ideas but can ultimately be very
damaging to that marketplace. Not only are search results a mere ranking of existing information and therefore they contribute no new information to the marketplace true or false. But 90%, to use your
figure Justice Thorburn, of people who use the internet may come across a given
page on Boondoggle, one of an infinite number
they could potentially search and believe that the first two pages of those search results fully reflect this marketplace of ideas. Which is never what the
marketplace of ideas was intended to be protected as. A small glimpse into
some of the information. The case of Brettley Greenberg that has given rise to the case before you today Justices, is a perfect example of how this window into the marketplace can completely obscure the real truth of a situation. And how that one search term if an individual uses it as the full and final way of getting information online may very well have the impact of not only destroying an individuals privacy but distorting what their perception of the marketplace of ideas is. – And maybe we’re getting
ahead of ourselves a little bit but is the answer then would not be to de-link the hyperlinks, it would be to modify what the hyperlinks are, wouldn’t it? – Perhaps, I imagine
that our friends would vehemently push back against that as well because as you well know Justice Thorburn, the freedom of expression
also protects against the government telling others what they should be saying. And I imagine that their
argument in response to that– – But you have an obligation
to look at minimal impairment. And isn’t that in the context
of minimal impairment? If you haven’t investigated that, is that not something we should consider, in considering the section one argument that you’re raising? – Indeed, the alternate regimens of the government could contemplate in response to this mischief are things things that not to spoil the suspense, I’m sure my co-counsel will get to in a short period of time. Perhaps Justice Thorburn, I can move to our second submission on this expression point. And that is even under
the Canadian case law and if I’m unable to
convince you that this court should adopt a new
approach to this threshold, that the existing case
law in Canada does not point to search results
being expressive activity. The appellants have suggested that there are a series of different ways in which search results may have meaning or may be expressive activity under the current Canadian case law. They may be allegedly the expression of an opinion on the part of search engine creators that they may be the exercise of editorial discretion. I will get to each of those in a moment, but I’d like to refer to the wise words of Falconer Court of
Appeal Justice Georgio, that ultimately– [Voiceover] Indecent. – Indecent, yes, yes. We do still hold him to the enlightened words, Justice Sharpe. And those were that, ultimately fatal to the appellants claim is that there’s no
identifiable human creator. It who participates,
either as an individual or collectively in the
creation of search results. – So what do you say about
your friends argument though when we were taking about
the use of these algorithms? He’s talked about the discretion when the algorithm is conceived and the subjective ranking? – That’s a very interesting
question Justice Thorburn. And I believe that the, or we submit, that the Canadian case law speaks to the need to
address two questions in terms of how the opinion or advice or whatever we’re going
to characterize it as plays a role in search engines. Search engines like Boondoggle, operate on the basis of a very complex software package. This is what has been
called the algorithm. And we do not doubt that a significant amount of opinion goes into creating the actual algorithm. Opinions made by search engineers and computer programmers in the abstract about what little lines
of code may indicate a high quality site, high quality media, all sorts of things that may collectively indicate what is a
relevant page for someone. But all of those decisions
are made in the abstract and they are not made
with any search engineer turning their mind actively to
a particular subject matter. We don’t foreclose the possibility that search algorithms themselves are the expression of an opinion. Indeed, that’s why we don’t know how the electronic sausage is made is because the appellant Boondoggle benefits from patent
and copyright protection over this algorithm. But just like in the cases
of any other machinery, typewriters and quills are
perhaps too simplistic, but other mechanical examples
from the 20th century. The role of opinion in the
creation of the machinery is not dispositive of whether or not the output has opinion. And so we submit that,
that’s a different question. These search results that are created by the mere mechanical application of this machinery need to be analyzed separately. And if we look at what search results do and what they are, they are fundamentally different from any exercise of opinion or editorial discretion. I will take editorial
discretion as an example Justice Sharpe, because
this was one raised during our appellant submissions. Or the appellant submissions. And in the Canadian Case Law and in particular, the American Case Law that does frequently look at the elements of editorial discretion, are easily distinguishable. There is, in the case of a search engine, no individual actively curating third-party content and
making value decisions as to what to include
in this third product. There is no independent product, at the end of the day, created that people associate
with an editorial entity. I can turn to my colleague and say did you read a Globe and Mail article or did you notice the
usual number of typos in that Ultra Virus article? Search engine results however, do not have an independent existence, partially due to the changing
nature of the algorithm but also due to a function of the way that people use the internet. So all of the hallmarks
of editorial discretion are missing from what search results are. – [Voiceover] Wouldn’t an
index be a form of expression? – An index, a listing
of content in a library, say for example? – [Voiceover] That would
be expression, wouldn’t it? – We would submit no, Justice Sharpe. A simple listing of what is available when just as a physical activity like parking a car by a human being, if not undertaken with
the intent to create some sort of meaning other than simply putting the information out there, we don’t believe would be expression protected by section 2B. – If the listing was designed to point the reader in
a certain direction. This was sort of going with the policy of the company. As I understand it and I don’t understand much of this I gotta tell you. – [Dave] Neither do we Justice Moldaver. (laughter) – I won’t say that’s evident but these search engine companies… If I sort of put Justice Sharpe’s name into one and I’ll get x, y, and zed links or something or articles. And if I use another server I might get different articles. Somebody is making decisions here as to what goes on top and what goes on the bottom, aren’t they? If somebody’s doing that not at random they’re doing it because
they believe what? That this is what the
readers will be interested in or this is what our market
will be most interested in? I just don’t understand this. If you tell me that
different servers do have different listings and
different orders, why? What’s going on? – Justice Moldaver, they
are differences between, or there are differences
between search engines. And in our view it would
be charitable to say it’s based on sort of a
belief on the part of the– We think it would be
charitable on the part of the granted law abiding and
public spirited appellants to characterize that as a belief in what is useful for people. Plainly, it’s because
of advertising revenue for the appellant. Now that’s neither here nor their in determining whether this is expressive. I understand that. The reason that– – Well I think advertisers
are gonna probably advertise on the basis that they think that this is something that
the public will really be– They’re gonna wanna look
at that what’s there. That’s why that advertisement
is on that page. But it seems to me that this is a kind of a form over substance argument. It’s just as Sharpe said a while ago, most of the people in today’s day and age get their information from these things. So isn’t that enough right there? – We don’t disagree Justice Moldaver that individuals use search engines. They are absolutely essential to how the internet functions. We agree. But so are a lot of other tools in terms of accessing information. And not all of those tools, even in the 21st or the 20th century were themselves expressive activity. – But it’s not just the
use it’s also the fact that the search engine it’s self ranks the content on the search engine and that’s not purely automated process. Because there’s something
to do with key words so that would, at least
according to your friends, imply some sort of an exercise of judgment or discretion in putting some keywords in and choosing some keywords over others. And isn’t that editorial discretion? – It is to a certain extent some degree of discretion. And this is I think the challenge that we’ve identified in the 21st century. There is the element of limited or proximal human
connection to all of this. And in our concern or our
suggestion in providing this new threshold test
for what is meaning has been to provide some
sort of principled way for the court to deal with this fact. That in all of these
creations of machinery there is some human role. Humans do play a role in exercising some degree of discretion over what the final product is. But at some point a line needs to be drawn by the court in determining whether or not this is the type of human expression that we mean to protect constitutionally with the freedom of expression. And our suggestion to you has been that because the human
role in search results is so remote and because it is confined specifically to the
building of that machinery and not in the creation
of the individual outputs, that the law should and
does protect the expression of the opinion and body in the machinery, but cannot go so far without more. As saying search results themselves are protected as political discourses as the opinion is of a friend or confidant if I ask them or if you ask them, we believe that the line needs to be drawn so that in the 21st century there is this principled approach to to the freedom of expression. Justice Moldaver? Oh I thought you had a question, sir. – [Voiceover] I’ve got a question but it may be really dumb. So if you think it’s really dumb you don’t have to answer. But this legislation relates to the removal of certain of these articles and so on. When I press in your name it could be relating to those. But it’s careful as I understand it to… It’s gonna leave the
impugned webpages up there. We’ve already been through this. They’re not disappearing. They’re not being taken off. It just seems to me that the purpose behind that if we look at the purpose behind that is really to minimize the impact on freedom of expression. Then isn’t it at least
an implicit recognition that when we actually remove the kind of information that we’re talking about here that it does impact on freedom of expression? I don’t know if that makes any sense. – It does Justice Moldaver. I agree that, that is, or involves an implicit recognition that in somewhere in the realm of search results there is expression. And indeed there is. The expression shown by hyperlinks and I briefly cite the court to or point the court to the recent decision in Crooks and Newton. So when I say points to underlying content simply points to and does not reproduce. But search results point
to underlying content that has been often carefully created, more often than not,
not carefully created, but still deliberately expressed
meaning on the internet. That is the type of expressive right that we balance through this particular act. And I submit to this court that as my co-counsel will explain in just a moment, that we balance particularly well and within the balance of the constitution while ensuring that the
freedom of expression remains a robust protection
for all Flavelians. Thank you. – [Voiceover] Thank you
very much Mr. Marshall. Ms. Gangi? – Whenever you’re ready. – Good evening Justices. My name is Hanna Dangi. And I will be continuing with the respondents submission where my co-counsel Mr. David Marshall left off. Justices, this case is about the importance we accord to the protection of dignity and privacy. The meaning this takes
on in our present day era in which every blog, tweet, selfie, or post of any kind lives on in perpetuity is something quite different than what the charter
originally contemplated when freedom of expression
protections were first developed. Damage to one’s reputation and privacy can lead to social marginalization, unemployment, divorce, and even in extreme cases, suicide. It is for this reason that
names like Amanda Todd have become part of our popular lexicon. We are living in a brave
new world Justices. And it requires us to think differently about the way humans
and technology interact. It requires us to think
deeply about the law not only as it is written but about it’s spirit and it’s intent. Justices the act in question
is not only necessary but it is a necessary, reasonable, and constitutionally valid response to a growing concern we can no longer afford to ignore. – Just tell me though if– This is pretty open ended legislation and I guess the commissioner
is supposed to look at the private interest
and the public interest. The only parties that I
percieve that get notice of a complaint are the service providers. What do they call them? Service engines? Is that right? – [Hanna] The search engines.
– Yeah. And are we to kind of leave any and all submissions on the public interest side to companies like Boondoggle? Cause I don’t know who else is gonna make public interest submissions here. You don’t serve the creators of the work. So they’re not there. Who’s representing the
public interest side other than Boondoggle? What kind of a system is that? – [Hanna] Frankly Justice, we don’t think it’s actually Boondoggle who will be representing the public’s interest. They have a vested interest in maximizing profits and the protection of human dignity and privacy is very much secondary. And we would contest that any objection under the grounds of freedom of expression that they have made is actually a fairly loose facade for what they would like to protect, which is really ad revenue generation. – Sorry. I don’t disagree with you. But who gives the public interest side? We hear a lot from Mr. Greenberg about the private interest problems
that are caused here. But do we just sort of leave it up to the privacy commissioner to imagine all of the various public interest concern that might arise in the particular case. – Justice Moldaver, it’s
an important question and I’m glad you asked it. We know that terms like public interest are certainly not hollow and they are not void of meaning. In the Ontario Securities Act for example, public interest appears 44 times without any further definition
embodied or imbued into it. And the reason is because public
interest can be understood based on the legislative
context in which it is found. In a similar way, public interest as mentioned in this act can be interpreted based on the context in which it is found. So what does this mean? First of all we must recall that the act is an amendment to an existing
privacy legislation Pipeda. Pipeda it’s self is a piece of legislation that has been interpreted overtime and there are a series of decisions that would be in the body of common law that a privacy commissioner could look to. To what the meaning of
privacy and dignity really is, but moreover, the reason the act came into existence in the first place was on the basis of a recommendation made by the Stewart Commission. Within that recommendation
would inevitably be a series of guiding
principles that would guide the privacy commissioner
to better understand what interest were being protected. And we know that the Stewart Commission inevitably set fourth it’s recommendation on the basis of broad based consultations with employers, neighbors, members of the public, and key business people who make consequential decisions on the basis of information that appears on the internet. But at it’s heart and with law backing us up on this, the Supreme Court of
Canada mentioned in Dore, that an administrative decision maker exercising discretionary power under his or her home statute has by virtue of expertise and specialization particular familiarity with the competing considerations at play in weighing charter values and will generally be in the best position to consider the impact of
relevant charter guarantees on the specific facts of the case. – But I keep coming back to it. I don’t know who’s going to be on the other side of this. Boondoggle got involved here primarily as I see it, to attack the constitutionality of this provision. If the provision is held
to be constitutional is it really realistic
to think that Boondoggle is gonna hire another thousand lawyers to deal with every sort of complaint made by every Tom, Dick, and Harry that comes before the
privacy commissioner? And they’re gonna spend time and file briefs and so on? I don’t think so. And so no one is gonna be there to protect the public interest store. In 99% of these cases you’ll just have the complainant like Mr. Greenberg filing something and the privacy commissioner will just sort of make a call without any submissions from anybody else. Is that? How does that happen? – Justice Moldaver, the privacy commissioner is entrusted with a certain degree
of discretionary power to make determinations on how interests, like individual harm should be weighed against public interest. Administrative decision makers, as was previously mentioned with respect to the Dore case, do have this power and competency to understand what at
any given point in time the public interest ought to be. Now the reason that this act doesn’t give more specificity as to what particular types of harms or what particular
types of public interest ought to be protected is because the act’s intention is
to be forward looking. We cannot at this point in time reasonably anticipate
all the ways in which the public interest may be affected or all the types of harms that may befall an individual who may find need to bring
fourth an application. That is not to say that
a privacy commissioner or any administrative decision maker has untrammeled or unfettered discretion. We know this from Roncarelli. At a very minimum any decision an administrative decision maker makes must be in conformity with the charter, must be made on the basis of the facts of the case before him or her, and must not be made in a
manner that is arbitrary. It means that any decision must be both justifiable, intelligible,
and transparent. And certainly the reasons given by the privacy commissioner for it’s decision in the Brettley Greenberg case offer that transparency
to the general public. – But you know, this statute
talks any adverse affects. It doesn’t say unfair adverse affects, doesn’t say, you know, anything about the nature of the adverse, just an adverse affect. So I stand up and say, you know, that has an adverse affect on me I want it taken down. Isn’t it incumbent on parliament to put some teeth, some
meat on the bones here to at least give the privacy commissioner some guidance or some limit on that very, very broad discretion? – There are two answers
to this Justice Sharpe. The first is that it would
be your right under this act to come forth and bring
an application to say there are harms that have befallen you as a result of information that is true, non-defamatory, but nevertheless impairing of your reputation. But it is not necessarily the case that just because you’ve
submitted an application it will be granted. And that’s where the privacy
commissioner comes in to play. – But doesn’t parliament have to instruct the privacy commissioner? Let’s say I’m a really sensitive guy and I just don’t like my name out there. And I say this affects me adver– I wake up at night. I’m just worried about my name showing up in the search results. That’s an adverse affect on me. And there’s no way in this legislation to say that, that is a trivial or too insignificant a complaint. The privacy commissioner’d say well you know, Sharpe feels that way. I guess we better put a stop to it. – But I guess on the other hand too, does Mr. Greenberg then have to wait until he loses a job, gets taken off whatever board he was on or something else, before he can complain and say look, you know, anybody reading this would
think I’m a fraudster. And yes I haven’t lost a job and no I can’t point to anything specific but it’s wrong that half
the information about me is out there and any
reasonable reader looking at it looks and says, oh my God,
this guy’s a fraudster. Why should I have to wait until something terrible happens to me? – There are two answers to this Justicies Thorburn and Sharpe. The first is that there are
different weighing factors that a privacy commissioner would have that latitude to take into account. A similar piece of legislation
that was passed in 2014 by the European Court
of Justice for example, takes into account
factors like timeliness, relevance, and accuracy. So in Bretly Greenberg’s case he had been in office for 20 years successfully criticizing
library and construction delays and had made a wonderful
career out of that. Retires in 2007. Spends eight years at the
dubious law firm Stir Neblett. And then proceeds seven years later to still have to defend himself against fraud allegations that were wrongfully leveled against him. Now, it so happens that in that cases it’s clear that the information’s stale, it’s not complete, and it continues to have detrimental affects on his life. For example, his ability to seek meaningful employment. Now, whether it needs to be the case that he waits that long period before coming forth would be up to the privacy commissioner to determine. And while it is a matter
of statutory interpretation I would imagine that this statute would have on it’s basis a reasonable person’s interpretation of what harm is. Not the overly sensitive person. Though Justice Sharpe I think that’s quite endearing. It would be fine in that case to bring the application forward and we would entrust
the privacy commissioner with the competence to look further as to whether an order
should be given or not. – But what would you feel better if, would Mr. Greenberg be happy if the first article chronologically said he was charged and then the very next link that’s there or whatever
they call these things, talks about the fact
that he’s been vindicated and the crown attorney stood up and said we have no evidence whatsoever that he had anything to do with this. The larger question if we’re talking about minimal impairment to me is don’t we have a problem with
this statute to the extent that it only has two possible remedies. Either leave it or remove it. And if in fact perhaps the privacy commissioner
had the discretion to say to the Boondoggle’s look, you know, we’re gonna remove this unless you put next to the fact that he was charged right beside it or right next to it the fact that he was vindicated. Wouldn’t that be less impairing in terms of the right
than what we have now with this black and white
in terms of remedies? – Justice, while that
may be less impairing it would in fact in someways actually violate freedom of expression of independent private actors like Boondoggle even more. As we know from Slate and Davidson the right to freedom of expression is also the ability or rather the protection not to have to be forced to say something. And to rearrange an algorithm such that search results would be reproduced so that negative and positive information would appear next to each other would in fact require Boondoggle either to reveal their proprietary search algorithm or to compel them to say something they may not otherwise say. And so in fact I do
question the extent to which that would be a better remedy. Although, in theory those results may be more charitable to what
the truth of the matter is. – Do Mr. Greenberg’s of this world have the right to say that accurate kind of, not misleading reporting but accurate historical facts like that. He may be of the view that he’d like to just have all of that taken out. But surely to goodness,
as my colleague said, this legislation shouldn’t be designed to revolve around the
particular idiosyncrasies or sensitivities of any individual. You know, I might like the fact that I didn’t know French when I went to the Supreme Court of Canada to come off the website. (laughter) I’m getting there though slowly. Surely to goodness you couldn’t complain? Or he couldn’t complain, could he? If this was totally sort of accurate and one article said he was charged and the very next one said he was completely vindicated? – It would be Brettley
Greenberg’s right under this act to come forward submit an application, and to have those findings
deemed unreasonable potentially by the privacy commissioner. But I think at this stage to help clarify what this act does and does not do. It might be worth while going back to stage one of the
Oak’s Test and looking at what exactly it’s pressing
and substantial objective is and how this objective
is rationally connected to the impugned provisions of the act. So let me begin by stating and reiterating what this act does not do. It does not remove any
content at it’s source. That will still be there. It does not affect the vast
majority of search results. It is not a market departure from existing causes of action
that protect privacy, including intrusion upon
seclusion, Justice Sharpe. And it does not create a
freestanding right to privacy. So here is what the act does do. It provides a form of
recourse for citizens who’s reputation’s and dignity have been torn to shreds as a result of Boondoggle and other search engines
profit maximizing initiatives. It accomplishes secondly, by de-linking the names
of an individual applicant from certain specified hyperlinks only containing harmful information that would otherwise appear
in those search results And finally it does this only in cases where the privacy commissioner competent as they are, has made a determination based
on the facts of the case. That public interest does not outweigh adverse harms to the individual. Now this could take on
a number of meanings but it is within the ambit
of the privacy commissioner to make decisions as to what counts as sufficient public interest and what is adverse harm. It is not simply the case that Brettley Greenberg stands up says something harms his reputation and suddenly a wand is waved. Public interest is taken quite seriously and is always interpreted
based on context. I wanna take us now to the
Ontario Court of Appeal decision in Jones and Sig because I think that is quite important. Justice Sharpe, I agree that was an important case. – [Voiceover] Can we
just do the head note, (laughter) – Now specifically in that case, it was decided that the
law is actually moving in a very important direction. Justice Sharpe, in your
astute and very wise words, you stated, privacy is
long been recognized as an important underlying
and animating value of various traditional causes of action to protect personal and
territorial privacy. But charter jurisprudence recognizes privacy as a fundamental value in our law and specifically identifies
as worthy of protection a right to informational privacy. And that is distinct from
personal and territorial privacy. Moreover, it is within the
capacity of the common law to evolve to respond to problems posed by routine
collection and aggregation of highly personal information that is readily accessible
in electronic form. Technological change poses a novel threat to the right of privacy. And importantly it recognizes a right that is integral to our social and political order. What we are saying here
is not that one person’s particular sensitivities
are being catered to but that the ability of
every individual in this room to fully participate in society without fear for loss of dignity, privacy or reputation is really what’s being protected. – But this isn’t really
about privacy, is it? It’s really much more about
access to information. – Justice Thorburn, access to information in fact, is still very much present. If a particularly invested person, for example, an employer, wanted to know about somebody’s potentially past criminal record, they could easily go into police records or to sources of information. – That’s what I’m saying, so
this isn’t really about the right to be forgotten or the
right to have something– This isn’t really about
privacy and not allowing people to see into
certain parts of our lives because they’re private. It’s really about access
to information, isn’t it? – To the extent that
information is still avaliable we can say it’s access to information. But the reason this is still very much about dignity and privacy is because of the intimacy between an individuals name and the reputation and character that is assigned to them on the basis of what people find out about them online. Now as was correctly identified by the appellants and by each of the Justices, the majority of information
that individuals seek is found through search engine results. But this is why in fact
this act is so powerful. It’s because of this multiplier affect. If no more than 10% of individuals look past the first two or three pages when they enter a search term, and if those two or three pages are the universe of information they use to inform their opinions
about an individual then the removal of one hyperlink doesn’t just prevent one person from forming an inaccurate opinion on the basis of what was removed. It prevents three billion internet users from forming those inaccurate opinions based on what they
would of otherwise seen. Now why is this justified? Again, because the privacy commissioner can take into account things like spent convictions in
the case of criminals. How likely is it that they
will have committed this again? How long did they serve their sentence? How far in the past is this? Timeliness, relevance,
accuracy of information. And privacy commissioner, the office of the privacy commissioner, has been around since the 1970’s. This is not a new exercise. In 1992 in the Queen and Zundel Justice Cory actually mentioned that the term public interest appeared 244 times in 82 federal statutes. This is not a new term, the interpretation is not a new exercise, and privacy and dignity have historically been protected since time the
charter was first developed. It is a quasi constitutional principle and it must be protected and weighed against freedom of expression where in fact it is warranted. And in cases like Brettley Greenberg’s his ability to fully
participate in society is distinctly impaired. And that is something that and an interest we need take into account and protect over freedom of expression
in certain cases. – But you know, there may be other means. And you’re right these
articles aren’t taken off. But realistically what are the chances of somebody coming across. I wouldn’t even know what to plug into it. Like wrongful charges by the police. Is that what I’m looking at? And somehow I find out? And what do you say to your friends about the sex offender who has been convicted of a crime and had four or five or six years of good behavior and so on and doesn’t want anybody to know about the fact that he was convicted of a serious sexual offense? Doesn’t the public have a
right to know about this? Or do we just have to worry about this person being able to get a job? – Justice Moldaver, I see
that I am out of time. May I have one more minute
to answer your question? The reintegration into society of those who have spent convictions is actually an important pillar of justice in Flavelian and Canadian society. Once an individual has
paid their debt to society it is important they be given a reasonable opportunity to leave their past behind. Especially if they haven’t committed anything that would suggest that there was a continued
danger to the public. Of course if there is somebody who is running around like a killer in Flavel, it’s important that we
know their whereabouts and what they’re currently doing. But of course if that
question were on the table that person would of somehow found a way to come to the privacy commissioner with an application and
still be on the loose. So we might have a bigger issue with respect to policing in Flavel. But I’d like to take a moment to just conclude on this note. Freedom of expression
is primarily concerned with what is required for
citizens to participate fully in a free and democratic society. And this ability is
contingent upon individuals being able to live their
daily lives without fear for loss of dignity,
reputation, and privacy every time they turn on the computer or step out the door. Now to be powerlessly defined by modern day technology
giants like Boondoggle without a form of recourse, which this act is, is to deny every citizen in this room the opportunity for autonomy and self actualization which is the very essence of what freedom of expression was always meant to protect. Barring any further questions
those are my submissions. – [Voiceover] Thank you
very much Ms. Gangi. I don’t think you get to reply, do you? (laughing) Even if you did, you wouldn’t, now. We’re going to go out in just a little bit and see if we can resolve this now. So I wouldn’t go too far. Okay. Well this may have seemed
complicated to a lot of you. But we really think it’s quite simple and Justice Sharpe has
a two line endorsement. (laughter) No, we’re going to reserve
our decision on this. But we’d like to just make a few comments to the Mooters. And so Justice Thorburn will lead off. – I just wanted to say to all four of you that you did an amazing job. It showed that you spent
a lot of time preparing, that you really thought
through your arguments. And not only were you
well prepared in terms of the arguments that you
were prepared to make, but for the many questions
that were off the cuff sometimes from left field
or right as the case may be. So, we did appreciate that. We also very much appreciated the fact that you engaged us. Not just in terms of your argument but in terms of your eye contact. It was a running discussion with us which is helpful. And it was very impressive that you not only knew your material
but you were able to stop halfway through and go into an area where somebody asked a question that might not have been in your area but in somebody else’s. So I think all three of us agree that if only the counsel before us were as good as you we would all consider ourselves to be very, very lucky. So I think you should all feel very good about your performance tonight. We were extremely impressed
with all four of you. And I really do mean that. And I know that we in the back hall in our 30 seconds of consultation all really were extremely impressed with your performance. – [Voiceover] Thank you very much. Justice Sharpe? – I would like to say that this was I think a very difficult problem. Difficult conceptually, intellectual, constitutional law problem. And to tackle it in a short space of time the way you did was very, very impressive. And as my colleague has pointed out, for those of you in the audience who are thinking of mooting. You can see here the importance of preparation and mastery of the file. And it didn’t really matter what we asked. Questions some of them off the map, off the dial, coming from left field, but the mooters were always, because they knew the case so well. And I could even see you turning in the notebook, you know, sort of anticipated that somebody might ask that question. So, sort of, the mastery of the material the case law and the complex interaction of different principles I think was very, very impressive. And a real model of how to do it and I look forward to
seeing all four of you in the Court of Appeal. – You know it’s funny when
I was reading this problem and I don’t know a
hyperlink from an algorithm if my life depended on it. – Now you do. – Now I do, that’s right. But I kind of laugh
because this legislation you know, Right to be Forgotten. I’m kind of lucky for
Right to be Remembered. (laughter) You are too, aren’t you Bob? Anyways, I just want to agree with what my colleagues have said. You know, if we had advocacy like this on a regular consistent basis life would be a dream. The superlatives that I could use, well you probably wanna get a drink soon. So we won’t go into it in too much detail. But you were all brilliant. You were all just brilliant. You mastered a very, very difficult area. And you put your submissions in a way that is what I need. Something that a bright five
year old can understand. And all of you to a person had obviously thought through your positions, thought through your arguments. Recognized that we’re dealing with really tricky language and thoughts and concepts here. And you did just a brilliant job in making a bright five
year old understand. This is one of the hardest
things you will ever do. I was saying that to my colleagues earlier that when you get into
a real live courtroom for the most part there will
be no one sitting behind you. And certainly not colleagues
and family members and professors and so on. The stress and anxiety that goes along with something like this is huge. And I think we all know it. We’ve all been there. So, to that extent, you should all feel very proud. I can only imagine the hundreds of hours that you’ve put into this. Hundreds of hours. So, we commend you. We congratulate you. You’ve got tremendous
careers ahead of you. And we wish you good
success now and always. Thank you so much. (applause) – And just as a last conclusion I’d like to invite Bill Black from McCarthy Tetrault to say a few words and to present a few gifts to our esteemed judges and our Grand Mooters. – Thank you Sam. As Sam says, I have the distinct privilege of saying a few words. And I promise it will be a few words on behalf of the sponsor
McCarthy Tetrault. And the even more distinct
pleasure of giving some small tokens of our
admiration to the mooters. I have to say that this event in the past and in particular this year, always brings to mind at least to me, the finest traditions of our profession. And what I have in mind in particular is that we as a profession I think, have a very strong vested interest in seeing to the
development and progression of junior members of our profession. We see ourselves as sort
of part of a continuum. And as litigators in particular, we see ourselves of custodians of the craft of advocacy. And we genuinely have an interest in parting lessons to
those who come after us. And it’s important that
that is an interest of the profession as a whole. And there are many different
expressions of that interest. One of the expressions is formal teaching. And I’m here to tell you that apart from the many excellent professors from the University of
Toronto Faculty of Law, we have on this panel some teachers. I can tell you that when I was in first year law school
at University of Toronto in the last century. Just after quills, I think, Dave. I had as my first year
civil procedure professor one Bob Sharpe as he then was. And he was an excellent professor. And I’m living proof that as someone who wanted to continue doing litigation after first year civ-pro. He obviously was a very good teacher. I also had in my third year the pleasure of taking a course which we called criminal
anecdotes actually which was taught by one Michael Moldaver as the then was. Together with Casey Hill who at the time was a crown. Michael at that point was not the hard-bitten, button downed, jurious that you’ve seen performing here today. But was a free willing and fun loving criminal defense lawyer. And he and Casey Hill essentially spent the class arguing with one another about their cases and other cases. And it was incredibly enjoyable for those of us that were lucky enough to take the class. Justice Thorburn of course is not nearly old enough to have taught me in law school. I assumed that she had done some teaching. And so just this afternoon I Googled or I guess for today’s
purposes, Boondoggled. – [Thorburn] Right to be forgotten. – And there was some
hits on the first page and it didn’t say anything about teaching and I kind of lost interest after that. (laughter) Interestingly, the first page did reveal that she is an accomplished singer. But I digress. In addition to the formal
teaching in the profession there are many examples of both formal and informal mentoring. We at McCarthy Tetrault, and I’m not just saying this because of the student recruitment which is ongoing and the interviews that are happening very soon. (laughter) Place a real emphasis on mentoring. We actually celebrate every May, we call it mentoring month. And we celebrate all of
the kinds of mentoring. And it really does go
on, not just in our firm, but throughout the profession. And this event the Grand Moot I would say it falls squarely within those best traditions of seeing the youngest members of our profession, or those on the brink of
joining our profession, develop and progress in their craft. And I have to say based on what we were able to observe here today, the future is bright
and in excellent hands. I had the pleasure of judging, these guys are three
quarters of them I guess, one of the many run
through’s that they did. And as one of the members
of the panel observed, they literally have
spent hundreds of hours working on this problem and this moot. It’s one of the ironic
truths of our profession that in order to make the argument appear as effortless as they did requires incredible effort. And they have really put that in and we’ve all been lucky enough to enjoy the fruits of
their labor here tonight. And that is not to de-emphasize the work that many other people have done. The co-presidents obviously developed a really interesting problem and put in, again,
hundreds of hours of work. I’m sure there are many
members of the faculty who contributed to this. And many of our colleagues and many others in the profession I know did run through’s with this group. But my task of course is to
congratulate the mooters. And they really were
the stars of the show. I think it’s just
unassailable that they were outstanding in every way. And as the justices observed, probably better than what we would all get to see on an average
day in the court of appeal. So mooters, come forward and please accept these small tokens of our admiration. (applause) And now as a last award, you get to relax. Congratulations and thank you. (applause) – I also wanted to thank our judges who we also have tokens
of appreciation for. Bret if you wanna give us a hand here. I promise it’s not a computer. (applause) And they’ll be a reception
in the main area outside. And thank you everyone for coming. We also did just want
to say a quick thanks to Brett and Sam. The co-presidents who put this together. (applause) They put a fantastic amount of work into the problem and into organizing it and to all the run-throughs so we’re really, really,
thankful for that. Thank you as well to the bench clerks who helped draft the problem, provided research, they did a fantastic job. And so we’re all really, really lucky. And thank you all for coming. (applause)

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