RSS FeedOmar Khadr’s case to go to SCC
Osgoode Hall’s blog, The Court, reported today that the case of Omar Khadr will be taken to the Supreme Court of Canada.
Law is Cool has previously done an entry and a podcast on the Khadr case.
The Federal Court of Appeal previously heard a case regarding Khadr case, Khadr v. Canada (Justice), 2007 FCA 182, in regards to materials of pertinence to his case.
The application was based on R. v. Stinchcombe, on the Crown’s obligation to provide information to defence counsel.
Despite these legal petititions, both counsel for Khadr and the President of the Canadian Bar Assocation have stated that the solution to this case is political, not legal in nature.
Updates
Contact with lawyers related to the case and organizations interested in the case have expressed that individuals and groups interested in civil liberties, profiling, or any related issues petition as interveners in the case.
Law is Cool partners with Nexus
Law is Cool will now be sharing exerpts from Nexus, the law student paper at the University of Western Ontario.
Alex Dimson, editor-in-chief of the paper, will be posting stories of national scope or interest. The paper will benefit from access to our readership, and we will benefit from the excellent content the paper provides.
Other law student papers in Canada interested in negotiating a similar arrangement are invited to contact us at admin@lawiscool.com
Precedent Blawg Launches Magazine
The renowned Canadian law blawg, Precedent, is launching a new magazine under the same name.
To celebrate this launch, the magazine is hosting several parties in a few cities across Canada.
With an inaugural launch last week in Toronto, they are following up with other cities in Ontario.
Tonight the magazine is hosting an event in London, ON, where we will be meeting and interviewing Melissa Kluger, Editor & Publisher of Precedent for our next podcast.
Kluger stated in 2006,
I’ve been a lawyer in Toronto now for four years. Over this time, a lot of law magazines, newspapers and newsletters have crossed my desk. Even though these are publications for lawyers, I never feel like they are really talking to me. They always feel a little old, a little earnest and, well, a little boring.
Our sneak preview reveals nothing remotely boring.
Tonight’s event is sponsored by Cassels Brock of Toronto.
Details for events in Windsor, Kingston, and Ottawa can be found here.
When Contracts Go Postal
No Obligation without Acceptance
In general, a contract is not formed until there is communication of acceptance.
Carmichael v. Bank of Montreal (1972), established that the offerer must be available to receive the acceptance for the contract to be valid.
There are no contract and no obligation until the acceptance is received from the offeree.
However, there is an exception to this general principle, often called the Mailbox Rule.
The Mailbox Rule
The mailbox rule states that acceptance is provided as soon as it is posted. This means a contract is concluded before the offerer even knows that an offer has been accepted, in the interests of protecting the offeree.
Offerors can prevent this situation by stipulating a means of accceptance other than via mail in the offer. Based on Eliason v. Henshaw (1819), 4 Wheaton 225, 4 U.S. (L. Ed.) 556, the offeror has the right to dictate the terms of acceptance.
In cases where such stipulations are present, such as Holwell Securities v. Hughes, [1974] 1 W.L.R. 155, [1974] 1 All E.R. 161 (C.A.)., the mailbox rule may not be upheld.
An interesting twist to the mailbox rule is that it is still valid even if the offeror does not recieve the acceptance. In Household Fire & Carriage Accident Insurance v. Grant (1879), 4 Ex. D. 216 (C.A.)., the offeror did not even receive the notice, but was still held to the contract. Thesiger L. J. explained how the use of a caluse stipulating receipt of acceptance can further protect the offeror,
There is no doubt that the impliacitn of a complete, final, and absolutely binding contract being formed, as soon as the acceptance of an offer is posted, may in some cases lead to inconvenience and hardship…
It is impossible… to adjust conflicting rights between innocent parties.
…An offeror, if he chooses, may always make the formation of the contract which he proposes dependent upon the actual communication to himself of the acceptance.
New Technologies in the Modern World
In general, the mailbox rule is still upheld with the use of instantaneous forms of communication. But changes in correspondences have also modified the rule as well.
Brinkibon Ltd. v. Stahag Stahl Und Stahlwarenhandelsgesellschaft mbH, [1983], demonstrated in an international contracts case using telex that the location (and jurisdiction) of acceptance is the place where the acceptance is received by the offeror.
The Electronic Commerce Act further established that electronic contracts are still valid, with components of the contract (including acceptance) able to be demonstrated electronically.
Part 2 states,
Formation and operation of contracts
20. (1) Unless the parties agree otherwise, an offer or the acceptance of an offer, or any other matter that is material to the formation or operation of a contract, may be expressed
(a) by means of an electronic document; or
(b) by an action in electronic form, including touching or clicking on an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer, acceptance or other matter.
(2) A contract shall not be denied legal effect or enforceability solely by reason that an electronic document was used in its formation.
But as opposed to the typical mailbox rule, where acceptance is determined at the time of postage, electronic acceptance through formats such as e-mail are presumed to be received once it enters the offeror’s information system and is capable of being retrieved.
On-line Contracts
Law school students can be particularly litigous in ambiguous areas of the law.
In Rudder v. Microsoft Corp. (1999), two recent graduates brought a class action against Microsoft for charging credit cards of MSN users.
The users had apparently agreed to such charges by clicking on an “I Agree” button.
The court found that electronic contracts are still binding, even if they have not been read in their entirety, as long as they have been acknowledged and accepted.
Does this joke need a lawyer?
Previous winner from The New Yorker’s cartoon caption contest.
“Excuse me—does this joke need a lawyer?”
Law is Cool – Podcast #6
Show Notes
(27:53 Total Running Time)
0:13 Jacob Kaufman and Omar Ha-Redeye introduce themselves
0:29 Omar raises the past CBA conference, and the issue of Omar Khadr
0:57 We hear from Muneer Ahmad, faculty at the American University Washington College of Law, and counsel for Omar Khadr
1:36 Muneer Ahmad discusses his Aug. 24, 2007 article in the Toronto Star about Omar Khadr
3:14 Muneer Ahmad discusses the new enemy combatant categorization that is being used to trump the rights and process for child soldiers
5:17 Response from the human rights community and legal academia, and the role of Canada discussed
7:48 The value of Canadian citizenship raised, with Khadr being the only NATO country not intervening on behalf of their citizens
8:24 Another Toronto Star article from Aug. 26, 2007 discussed on how foreign affairs Minister MacKay was briefed on how to avoid the Khadr issue
9:01 The importance of Omar Khadr’s case to Canadian law students raised
11:12 Muneer Ahmad directs listeners to more resources on the Amnesty International website, Cage Prisoners, and the blogosphere
12:58 Muneer Ahmad shares means and potential roles for advocacy on behalf of Omar Khadr
14:56 Bernard Amyot, President of the Canadian Bar Association, of Heinen Blaike in Montreal, graduate of McGill law
speaks on the CBA’s position on Omar Khadr
17:06 Amyot states,“The war on terrorism cannot be won by denying those suspected of terrorism the fundamental right to answer charges in a fair and open process”
17:25 Bernard Amyot speaks of Canadians’ role as champions of due process and the rule of law, how this should affect the Khadr case, and steps that have been taken that have interfered with due process and rule of law for Omar Khadr
18:45 Bernard Amyot reminds the Prime Minister that the 37,000 lawyers and law students represented by the CBA of his duty to this Canadian citizen, and encourages law students to put pressure on the Prime Minister in the same way
20:11 Omar mentions an article in the North Carolina Law Review by John Makdisi, former Dean and Professor of Law, Loyola University New Orleans School of Law, The Islamic Origins of the Common Law, 77 N.C.L. Rev. 1635
21:03 Jacob describes a June 7, 2007 article in the Economist that explains business opportunities in Islamic financing occurring in Dubai, U.A.E.
21:55 Walied Soliman of Ogilvy Renault Toronto shares a information on a presentation for the Ontario Bar Association on Islamic financing products
23:22 Walied Soliman describes the three classes of restrictions in Islamic financing
24:32 Walied Soliman explains some of the business opportunities in this sector, both locally and globally
26:03 Walied Soliman provides some examples of Islamic financing transactions his firm is engaging in
27:16 Omar signs off
Matt Homann’s 15 thoughts for law students
Matt Homann, of the [non]billable hour blog, provides some amusing thoughts on law school:
1. Law school is a trade school. The only people who don’t believe this to be true are the professors and deans.
2. Want to piss off your professors? Ask them if they’ve ever run a successful law practice.
3. Being good at writing makes you a good law student. Being good at understanding makes you a good lawyer. Being good at arguing makes you an ass.
4. You can learn more about client service by working at Starbucks for three weeks than you can by going to law school for three years.
5. Law school doesn’t teach you to think like a lawyer. Law school teaches you to think like a law professor. Believe me, there’s a huge difference.
6. You can get through law school without understanding anything about what it is like to be a lawyer. That is a terrible shame.
7. The people who will help you the most in your legal career are sitting next to you in class. Get to know them outside of law school. They are pretty cool people. They are even cooler when you stop talking about the Rule Against Perpetuities.
8. Your reputation as a lawyer begins now. Don’t screw it up (and quit bragging on your MySpace page about how drunk you got last night).
9. Law is a precedent-based profession. It doesn’t have to be a precedent-based business. Be prepared to challenge the prevailing business model. Somebody has to.
10. Experienced lawyers work with clients. Young lawyers work with paper. You like working with paper, right?
11. You are about to enter a world where getting your work done in half the time as your peers doesn’t get you rewarded. It gets you more work.
12. Except for prosecutors and public defenders, nobody tries cases anymore. Especially not second year associates.
13. You have a choice: You can help people and make a decent living, or you can help corporations and make a killing. Choose wisely.
14. There are plenty of things you don’t know, and even more things you’ll never know. Get used to it. Use your ignorance to your benefit. The most significant advantage you possess over those who’ve come before you is that you don’t believe what they do.
15. People don’t tell lawyer jokes just because they think they are funny. They tell lawyer jokes because they think they are true. Spend your career proving them wrong.
Arguing in the Alternative
Arguing in the alternative is a technique often used in criminal law to pre-emptively address the concerns of the opposing counsel by stating their presumed rationale and demonstrating its flaws.
Arguing in the alternative can also be used to demonstrate the flaws of a parallel arguement by demonstrating that even if a primary clause is plausible, its conclusion is not.
However, this technique has been found in studies to be confusing to juries, who feel they are being told mixed messages, or that the defendant has compromised their liability by acnowledging the possibility of a primary clause. Because of this, arguing in the alternative is considered a risky technique.
Contemporary Uses
One of the more humorous examples of arguing in the alternative is Bart Simpson’s line, “I didn’t do it, no one saw me do it, you can’t prove anything!”
Critics have also pointed out the use of the technique by the current American administration.
Specifically, the case for the War in Iraq is cited as an example of claiming that causus belli is present, but yet cannot be demonstrated without the call for action in question.
“Facing clear evidence of peril, we cannot wait for the final proof – the smoking gun – that could come in the form of a mushroom cloud,” said Bush. “To wait for certainty is to wait for disaster.”
Others have pointed to the detention and transfer of detainees in the War on Terror. In the Committee on Legal Affairs and Human Rights’ report entitled Secret detentions and illegal transfers of detainees involving Council of Europe member a section entitled “The dynamics of truth” descibes “How President Bush’s disclosure of the Central Intelligence Agency (CIA) secret detention programme has accelerated the dynamics of truth” in section 24:
The end was portrayed as paramount – “we’re getting vital information necessary to do our jobs, and that’s to protect the American people and our allies”; the means of getting there inconsequential – “I cannot describe the specific methods used – I think you understand why”.
The Role of the ICC Prosecutor
The session on Making Prevention Feasible and the discussion with Luis Moreno Ocampo revealed two different conceptions of the role of International Criminal Court (ICC) prosecution.
Prevention and the Role of Prosecutor
Justice Richard Goldstone described the role of Prosecutor as constrained by the specific limits authorized by the Rome Statute. Goldstone emphasized the Prosecutor’s duties as external to the political process of negotiations to end armed conflict, which are often concurrent to investigation and indictment.
During the discussion between Professor Akhavan of the McGill Centre for Human Rights and Legal Pluralism and ICC Prosecutor Moreno Ocampo, there was a clear shift in imagining the prosecution’s role in current conflicts, such as Darfur. Ocampo described a two-fold function of the Prosecutor’s office:
- The duty to investigate past and present crimes
- To contribute to the prevention of crimes
Moreno Ocampo sees prevention and deterrence at the heart of the Rome Statute, which authorized the ICC (see Preamble). He views the Darfur conflict as a testing model to see how law can be used to prevent atrocities. Enforcing the ICC’s arrest warrant for Ahmad Haroun will prevent future crimes in Darfur, according to Moreno Ocampo.
Constraints to Prosecutor’s office
Like Goldstone, Moreno Ocampo recognizes the constraints of the ICC, a judiciary without an analogous institution to domestic police to enforce its warrants. Ocampo has a holistic view which involves pressure from civil society to influence political will of national governments. The legitimacy and accountability of the ICC can be imagined as developing within this framework of practice, not from statutory law.
Another problem Ocampo notes is that “there will never be enough justice.” The ICC’s work should be seen as one part of a whole, a complement to other forms of justice, such as Truth & Reconciliation Commissions, and humanitarian work. He mentioned the lack of legal criteria on determining who to bring to trial. In the case of Nuremberg, he recounted that the number of people tried at each case, twenty-two, was determined by the number of chairs available in the courtroom.
Deterrence
In contrast to the previous panel, Ocampo sees the ICC as being an effective deterrent, especially in the case of military action. The ICC’s impact on reviewing the rules of engagement in Afghanistan and general military policies to avoid prosecution in the Hague has been significant.
Complementarity
Sudanese human rights lawyer Salih Mahmoud Osman questioned the concept of ICC’s complementary jurisdiction, as stated in the Preamble of the Rome Statute. Professor Akhavan described the relation as follows: If domestic courts are willing and able to prosecute, the ICC has agreed to not exercise its jurisdiction. Osman emphasized the importance of privileging ICC’s jurisdiction. In the case of Sudan, there are no crimes against humanity enumerated in the penal code.
Osman reiterated the necessity to support the ICC and to generate political will for its effective functioning through pressure on national governments. Adding to this equation, Moreno Ocampo further emphasized the need for effective lobbying on the international level.
All proceedings from the Global Conference on the Prevention of Genocide are now online.
Some Tender Loving Care
A Contract Mind Meld
We previously mentioned our friend, the reasonable person, when determining intentions of parties entering a contract.
Intentions are important because they are required for mutual consent when entering legal relations. Both parties involved must have a common understanding of the basis and content of the contract, also known as consensus ad idem, or meeting of the minds. Domestic parties are objectively assumed to have not entered legal relations, whereas commercial entities are assumed to enter, unless there is specific information indicating the contrary.
This mutual understanding is typically resolved under the bargain theory of contract through negotiations. But there is one commercial situation where the typical process of negotiation is quite different.
A Competition for Bids
When a company is openly soliciting services from other entities, they send out a call for tenders, also known as an invitation to tender or call for bids. They then select a vendor from these competitive bids to use their goods or services.
The traditional analysis found that the call for tenders was an invitation to treat, the responding tender was the offer, and acceptance was selection of the winning bid. But this approach allowed for uncertainty in trade, in that bidders and owners could each cancel the process or circumvent the the terms of the invitation because there was no binding contract until selecting a bid.
Developments in Cases
In Harvela Investments v. Royal Trust Co of Canada, the court held the owner bound to the terms of the invitation to accept the highest bid per stated stipulations. The open tender is likened to the case in Carlil, and can be accepted by the general public.
The development of the tendering process was further refined in R. v. Ron Engineering and Construction (Eastern) Ltd., where a two contract analysis emerged to govern the process. Contract A was a unilateral contract governing the tendering process arising on the submission of a tender, and Contract B was a bilateral contract for the invitation to treat that was accepted when a tender was selected.
The two contract analysis was further refined in M.J.B. Enterprises Ltd v. Defence Construction (1951) Ltd, and demonstrated that the owner’s obligations under Contract A included only selecting a compliant tender. It also demonstrated that Contract A was also bilateral, because the owner was also responsible for returning deposits, meaning that submission of a bid alone (performance) did not conclude the contract. The owner also can reject the lowest bid, especially if taking a more nuanced approach, including the quality of work, past service, and projected timelines.
Other Forms of Invalidation
There are some other examples of how tenders can be invalid that should be kept in mind:
- not submitted before close of tenders
- not submitted on proper form
- altering tender form
- don’t have required information
- tenders conditional or qualified
- not compliance with specifications
CBA Recruiting Bloggers
The Canadian Bar Association (CBA) is looking for young lawyers (students and recent graduates) for an upcoming group blog. Further information can be found here, or below.
We are exploring your interest in establishing and maintaining a high-quality, informative and engaging blog – by Canadian young lawyers for Canadian young lawyers. To do this, Young Lawyers – Canadian Bar Association (YL-CBA) is looking for a core group of at least 10 to 12 (preferably more) young lawyers with experience and a special interest in blogs.
Are you interested in volunteering with a group of peers across Canada, to set up and maintain the new blog? If so, we want to hear from you! Please send your name, contact information, and a few lines explaining your experience and special interest in blogs, by October 29, 2007.
Thanks.
Jim Rossiter
Chair, YL-CBA
A Legal Obligation to Prevent Genocide
The panel on Making Prevention Feasible, chaired by Prof. Stephen Toope, focused on the proposal for a UN Emergency Peace Service, how to affect the inertia which plagues government action, and how to train negotiating parties for effective collaboration.
During the discussion, Dr. Jerry Fowler (US Holocaust Memorial Museum) described what he saw as the current normative environment with regards to preventative action and current international law on genocide. Fowler noted his skeptical views on the effect of the International Court of Justice’s Bosnia v. Serbia ruling, which emphasized the duty to prevent genocide (Article 1 of UN Convention on Genocide).
Fowler’s argument is that the duty to prevent is limited by the implied qualification, “with the means available under the current circumstances.” In short, the government will do what it can. Fowler notes that the judgment on what one can or cannot do is a political judgment, not a legal one. Therefore, the determination that certain atrocities are genocide will not influence the outcome of what the government is willing to do. He gave the example of Colin Powell on Darfur; the “legal” determination or use of the term genocide did not change the US government’s actions.
He emphasized that governments will not act out of a legal obligation to international law but out of a political necessity. This gap between law and politics needs to be filled by “constituencies of conscience,” Fowler claims, to create this political necessity and refocus how governments can act towards prevention.
Prof. Schabas provided a counterpoint to Fowler’s argument, indicating that the Bosnia v. Serbia holding did cause a change in thinking about genocide prevention. He explained that in 1994 during the Rwandan genocide the Security Council members interpreted the genocide convention as an obligation to prevent genocide only within their own countries. With the Serbia ruling, the legal argument provides additional momentum to the movement for the prevention of genocide internationally.
Prof. Toope addressed the two arguments and reminded the audience that it is not necessary to think of the evolution of legal obligation separately from the development of constituencies of conscience. This interaction depends on one’s concept of law, and how one sees law as being created. Toope recommended further reading on this topic in Emmanuel Adler’s work on communities of practice.
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