RSS FeedCIRA Policy is Not the End of Web Annonymity
Michael Geist of the University of Ottawa law commented today on the new policies by the Canadian Internet Registration Authority (CIRA) regarding individual internet registrants.
He had previously come out in support of their position, but it appears as if CIRA is backtracking on some of their changes.
CIRA is attempting to create a balance between privacy concerns of members of the public registering domain names, and access by those requiring legitimate access to their identity.
As before, information can be provided to law enforcement, and with the spread of hate crimes, threats, fraud, and other abuse on the Internet, this access will likely be increasingly utilized.
But access is also provided to trademark, copyright and patent interests that believe their intellectual property rights have been infringed.
Geist argues that the trademark changes violate Canadian privacy law, and whistblowers setting up a site against their company would be unnecessarily exposed,
Under the new CIRA policy, if they use fake registrant information, they risk losing the domain. On the other hand, the back-door exception means that the trademark holder can easily uncover the identity of the registrant since CIRA will simply hand over this information.
It’s actually not that easy.
The only disputes that CIRA states they will even contemplate a disclosure are when the use:
- infringes Requestor’s Canadian: (i) registered trademark, (ii) registered copyright,
or (iii) issued patent; - infringes Requestor’s Canadian registered (Federal or Provincial) corporate,
business or trade name; or - is making use of the Requester’s personal information without their knowledge or
consent to commit a crime (such as fraud, theft or forgery), to procure money,
credit, loans, goods or services without authorization. (Identity Theft)
Maureen Cubberley, former chair of the CIRA board of directors, has explained that it’s intended for cybersquatting, resale of domain names for profit, and malicious registrations towards competitors,
It’s limited to ‘bad faith’ registrations…
What we’ve done is make an exhaustive list of where the policy would apply in these situations.
Even then, such disclosures would only be made after attempts to contact the individual and resolve the dispute in other ways has been ineffective. There is even a 60-day period where parties can challenge a ruling, and take it to the courts beyond that.
A more valid concern would be social justice advocates attacked for their work by the larger public or major corporations. But as long as a person does not misappropriate a trademark or name or misuse personal information, it’s unlikely that any form of widespread abuse would occur by CIRA.
One of Geist’s more credible issues would be the arbitration process, because panels with a single arbitrator chosen by the arbitrator are more likely to favour with the complainant - in 83% of the cases. A panel with several individuals chosen by both parties is more likely to have a balanced decision.
But that’s exactly the process that CIRA is adopting.
Although complete annonymity and the ability to whine on nearly any subject imaginable might be slightly curtailed, especially when posing as a corporate entity, web hosters would also have a greater sense of responsiblity more akin to the printed press.
They now know that if they abuse their priviledges they will eventually be called to task.
And we’re forgetting one thing.
The new policy would only apply to “.ca” domains, which are still barely used even among the Canadian public.
Geist did predict that if these trademark changes were not made they would,
…instantly catapult the dot-ca into a global leadership position. With more than a million Canadian domain name registrations, the resolution of the WHOIS issue ensures that the Canadian domain name space is set for continued growth as it now features a “privacy advantage” over other domains struggling to strike a similar compromise.
Tightening privacy issues may have promoted the use “.ca” on the Internet, but for now we’re in just about the same place as everyone else, which is probably exactly where we should be.
The Liability of Saying Sorry
One of the hallmarks of properly managing disasters or scandals for a company is providing a genuine apology to the public. It fosters good-will, and indicates a willingness of the corporate entity to make changes to affect the problem.
However, legal counsel will frequently advise against doing this, as it can indicate an admission of liability. As a result, lawyers often find themselves in tension with communications staff on the appropriate management of crisis.
Michael Allison of Young Blood PR discusses these tensions as it relates to Ontario compared to his home province of B.C.
For example, the B.C. Apology Act states,
Effect of apology on liability
2 (1) An apology made by or on behalf of a person in connection with any matter
(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter…
(d) must not be taken into account in any determination of fault or liability in connection with that matter.
(2) Despite any other enactment, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any court as evidence of the fault or liability of the person in connection with that matter.
Other jurisdicitons across Canada should probably follow suit.
Seven Years of Law School. Seriously.
A few months ago I was asking for some career advice from Jordan Furlong, of the CBA’s National Magazine.
My concerns over bait-and-switch tactics by law firms and the enormously high turnover in some had me thinking.
We compared law to other professional degrees, and the pros and cons of each. Jordan suggested that I look at law as an investment in a personal skills enhancement project,
He responded at that time by saying,
I think a better way to look at it might be to consider the first seven years in the law to be the admissions process: three in school, one in articling, three in post-articling (most often, in a large law firm). At the end of those seven years, you’ve accumulated at least a minimal set of knowledge, skills and networks, you’ve paid down a chunk of your investment debt, and you can actually go out and start your real career. Viewed in that light, the working conditions for new lawyers seem a little more palatable, because new lawyers don’t see the harrowing associate experience as the norm or the template for the rest of their careers; they see it as an extended work term, co-op placement, apprenticeship, whatever, that has no particular bearing on where they’ll go next. If we could ever establish that way of thinking in the profession, we’d have much calmer and happier new grads.
Our conversation grew into an article that he posted on his site.
It proved so popular that the Young Lawyer’s Edition of the Addendum published it this month.
Perhaps it’s slightly disheartening to think of even more years ahead of me. But at the same time it might bring greater satisfaction and purpose to the challenges ahead.
Toronto Lawyer Wants Way More
The horror stories of the hours of a working lawyer are infamous. But they can’t be that bad, because this lawyer had enough time to pick up a second legal job.
Diane Way was gainfully employed as a lawyer in Toronto with the Canada Revenue Agency (CRA).
We can only speculate, but perhaps looking at other people’s taxes all day made Way want more. Way more.
She took up a new job in Ottawa with the Canadian Forces Grievance Board (CFGB). The thing is, Way conveniently forgot to quit her first job.
She worked at the CFGB for a week, using vacation time with the CRA. The next week, she returned to CRA, calling in sick for a week at the CFGB.
The third week she showed up again at CFGB, using more CRA vacation time. But this time she got caught when her new job called her old one to check her references.
It’s unclear if Way intended to declare income from both jobs, but in any case both employers let her go.
She took the issue to the Public Service Labour Relations Board to get her job back, claiming she was just doing a job shadow or an unpaid internship.
As a former CRA employee, she probably should have known that her revenues were hardly a secret.
In addition to being a lawyer, Way also has four university degrees.
But the best part is that she hired a paralegal to represent her, probably realizing that this lawyer had already made enough mess of the situation.
h/t Sharon Kour of UWO Law
Aussie Man Charged with Drunk Driving… in a Wheelchair
Police in northern Queensland have charged a 64-year-old man with drunk driving after he was caught sleeping at the controls of his motorized wheelchair on a four-lane highway.
Other motorists on the highway had to swerve to avoid hitting the man.
After being awakened from his slumber, the police smelled alcohol on the man’s breath. He blew over 0.30 on a breath test, which is more than six times the legal limit.
The man told police that he was on his way to a friend’s house in Trinity Beach, which was 14 km from where he was found. Most of the route was to be along the highway.
The AP quoted regional traffic inspector Bob Waters as saying:
“The vehicles that we normally hear about with drink driving are the family car, the truck, the motorbike … [b]ut there are also other classes of vehicles that are subject to drink-driving laws,” including horses, bicycles, and motorized wheelchairs.
That’s fine for Australia, but what about Canadian Law?
This type of case has actually been litigated in many other jurisdictions, including Ontario.
Under the Criminal Code, which sets out the various drunk driving offences, a “motor vehicle” is defined as:
“a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.” (Criminal Code, s. 2)
Certainly this definition would seem to cover motorized wheelchairs, which are typically propelled by an electric motor.
Indeed, in 2004, Peel Regional Police pulled over a wheelchair-bound man who was drunkenly swerving from curb to curb on a major street. The operator of the wheelchair, one Mr. Shanahan, was subsequently charged with “driving over 80″ under s. 253 of the Criminal Code.
In R. v. Shanahan (No. 2), 2007 ONCJ 242 (CanLII), Mr. Shanahan submitted that the inclusion of motorized wheelchairs within the Criminal Code’s definition of “motor vehicle” violated the anti-discrimination provisions of the Charter of Rights and Freedoms.
Counsel for Mr. Shanahan argued (at para. 12) that:
A person who is confined to a motorized wheelchair cannot get drunk in their home because this would be a violation of s. 253 of the Criminal Code. They cannot travel on a public sidewalk because they would be breaking the law. They have no mobility when they are drunk because they cannot be in care and control of their motorized wheelchair. To the extent that s. 253 of the Criminal Code prevents people in motorized wheelchairs from getting drunk in situations where otherwise able bodied persons can become intoxicated, these provisions discriminate against disabled persons who use a motorized wheelchair as a means of mobility. Hence, disabled persons do not enjoy equal protection of the law.
This rather novel argument was rejected outright by judge Wake (at para. 20):
it must be remembered that the essence of s. 15’s purpose is the protection of a person’s dignity… it is difficult to understand how that purpose can be advanced by permitting a person on a motorized personal mobility device to consume alcohol to the extent that his ability to drive is impaired. The argument in favour of striking down s. 253 seems to be that the dignity of a disabled person can only be sustained if he is afforded the right to behave with a lack of dignity. In my view s. 15 of the Charter should not be used to support the result of such inverted reasoning.
Nice try, Mr. Shanahan.
Profile of a Stalker
Stalking the Stalker
We all have them, even if the innocuous kinds like on Facebook.
But we thought it would be fun to stalk the stalker, by creating a profile of the different types out there.
Stalking is defined as an obsessive behaviour towards another, motivated by intense affection or extreme dislike.
The behaviour of stalkers can range from the irrational and the violent, to the flattering and overly affectionate. Most, however, do not represent physical threats, but are still usually unpredictable.
Their behaviour is outside the norms of social acceptance, which projects them as unpredictable to their targets. It is the lack of predictability of stalkers that usually sets off alarm bells of their victims, who often fear that they may instantly turn aggressively violent.
Four types of stalkers types are described below, though many stalkers have elements of more than one profile.
Erotomania
An erotomaniac has a persistent belief that they are loved by another, even if the other person does not know they exist.
Usually this bond is formed with someone of a higher social status or position of authority.
Their goal is to establish a relationship with their fantasy (we’re not sure how this is entirely distinct from groupies).
An example of an extreme erotomaniac can be seen in Tarasoff v. Regents.
Borderline Erotomania
Yes, there are moderate forms of stalkers too.
This type of erotomania is characterized by the knowledge that the victim does not love them back. They actually may have even had some sort of contact, conversation, or otherwise meaningless contact with their victim.
Their behaviour, however, can be exactly the same, and just as creepy as the regular erotomaniac.
Former Intimate Stalkers
Yes, rejection hurts.
These stalkers usually have a real romantic history with the person. So basically this is the guy/girl who got dumped and never got over it and kept going.
They don’t fantasize about a relationship with their victim, but have an unhealthy emotional attachment. They can so far as to target the spouse or partner of their victim, who may be perceived as the obstacle to their reunification.
Extreme cases can even result in double murders, such as Andre Ducarme with Sherry and Maurice Paul.
The LAPD claims that 48% of their case load are these types of stalkers. Something about those California Girls probably.
Sociopathic Stalkers
This type of stalker is so messed up that they don’t even want a relationship with their victim. Instead, they’ve created an ideal partner in their head, and find someone they can place into this ideal.
The extreme sociopathic stalker can become a serial murder or rapist, such as Charles Ng.
So now that you know what to look for, identify these stalkers and keep them out of your life.
If, that is, you even know they are watching you.
Directly based on an excerpt from an article by Bruce MacFarlane, People Who Stalk People. (1997) 31 U.B.C. L. Rev. 37-94.
Britney Lacks Necessary Mental Element
A reporter recently pressed charges against Britney Spears for running over his foot with her car.
But on Friday, Deputy District Attorney Joseph D. Shidler said,
[the] only way the victim’s foot could have been where the video indicates it to be was by the victim placing it in that location.
Shidler had reviewed photos and videos from last year to assess her liability, and noted that she was driving very slowly in a straight path, surrounded by reporters with lots of noise and confusion.
Furthermore, Britney claims not to even remember the incident.
It’s not the first time she’s gotten in trouble while driving. In 2006, a scandal erupted when she was spotted driving with her child on her lap, and last year she had a misdemeanor hit-and-run charge in a parking lot.
Earlier this year she had an accident on the Los Angeles freeway.
But Brittney lacks the mens rea, or the mental element necessary for guilt for offence in this most recent incident.
There are some criminal acts that do not require mens rea at all, including absolute liability offences and some regulatory offences.
But otherwise the mental state or subjective awareness in a state of mind is needed in addition to the act requirement, or actus reus, component of the offence. The mental state also includes:
- intention
- knowledge
- willful blindness
- recklessness
In Fagan v. Metropolitan Police Commissioner [1969] 1 QB 439, the defendant was pulled over by PC Morris, but stopped too far from the curb. The officer directed him to a specific location, and accidentally drove over the officer’s foot.
Morris exclaimed,
Get off, you are on my foot!
But Fagan turned off his ignition and said,
F*** you, you can wait.
After repeating the request several times, Fagan finally complied.
Fagan was charged with “Assaulting a constable in execution of his duties,” but he appealed as he had not initially run over the cop’s foot on purpose.
Although the court agreed that assault cannot be committed by omission, this assault occurred as a continual act of battery. Fagan developed the necessary mental element by continuing to keep the car on the officer’s foot.
The conviction was upheld.
The court said,
On the facts of the present case, the ‘assault’ alleged involved a ‘battery’. Where an assault involved a battery, it matters not, in our judgement, whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender. An assault may be committed by the laying of a hand on another, and the action does not cease to be an assault if it is a stick held in the hand and not the hand itself which is laid on the person of the victim. So, for our part, we see no difference in principle between the action of stepping on to a person’s toe and maintaining that position and the action of driving a car on to a person’s foot and sitting in the car while its position on the foot is maintained.
This case was cited in the Supreme Court in R. v. Cooper, [1993] 1 S.C.R. 146 in assessing the contemporaneity of the mental and act element for a drunken person who accidentally strangled a friend
Had Brittney deliberately run over the reporter’s foot, or found out about it and kept the car in place, she may have been found guilty.
This time at least, we’re going to leave Britney alone.
It is the Lawyers that Run our Civilization
Excerpt from “Woe unto you lawyers“, written in 1939 by the late Fred Rodell, Professor of Law, Yale University.
It is the lawyers who run our civilization for us - our governments, our business, our private lives. Most legislators are lawyers; they make our laws. Most presidents, governors, commissioners, along with their advisers and brain-trusters are lawyers; they administer our laws. All the judges are lawyers; they interpret and enforce our laws. There is no separation of powers where the lawyers are concerned. There is only a concentration of all government power - in the lawyers. As the schoolboy put it, ours is “a government of lawyers, not of men.”
It is not the businessmen, no matter how big, who run our economic world. Again it is the lawyers, the lawyers who “advise” and direct every time a company is formed, every time a bond or a share of stock is issued, almost every time material is to be bought or goods to be sold, every time a deal is made. The whole elaborate structure of industry and finance is a lawyer-made house. We all live in it, but the lawyers run it.
And in our private lives, we cannot buy a home or rent an apartment, we cannot get married or try to get divorced, we cannot die and leave our property to our children without calling on the lawyers to guide us. To guide us, incidentally, through a maze of confusing gestures and formalities that lawyers have created.
And rebuttal by Ken Vinson:
If pressed to name a political elite in this country, no group fits better into that category than those learned in The Law. And what better objects of resentment than those who use their clever way with words to run the big political show. So it is that even middle-class parents with little affection for the legal clan struggle with whether to send their offspring to law school, afraid that otherwise they are sending their young out into the world defenseless…
That modern lawyers are a tad too money-mad is born out by a billable-hour corporate law firm culture that led in one extreme instance to an associate’s billing a client for a “legitimate” twenty-seven-hour day. It seems the associate-soon-to-be-partner worked twenty-four hours around the (East Coast) clock, then hopped a flight from New York to California and billed for an extra three hours of in-flight paperwork.[19] Of course, being high-flying legal monopolists whose high fees close the door to legal services for most Americans is no way to win friends or rise in the polls. Shakespeare was not alone in thinking that lawyers use their magic with language to help the powerful stay in power, and that to “kill all the lawyers”[20] is a logical if impolite way to alter an inconvenient status quo. Law students in their first year of study are shocked to learn that The Law is not so much holy writ as it is an obscure alien tongue useful in shaping legal arguments in a form suitable for selling to either side in a lawsuit. Legal novices are taken aback by The Law’s ambiguity and adaptable nature even though there has been fair warning by, among others, Charles Dickens…
Critics such as Fred Rodell are a valuable public resource. Just as the press aspires to expose the failings of our governors and thereby guard the political health of the county, so do those who track and reveal The Law’s semi-hidden operations aspire to keep legal people, well, semi-honest and semi-public-spirited. Lawyers, like all us sinners, need all the help they can get in rising above avarice, vanity, and hypocrisy. Lawyers, remember, must deal with clients anxious to escape their fair share of taxes, to soak McDonald’s for selling scalding-hot coffee, to avoid alimony and child support, to win an acquittal for crime, to gain an advantage by cleverly worded contract, and to delay justice by clogging the courts with pettifoggery. If clients were angels, perhaps lawyers could wear halos too.
The Mystery is Afoot: Sixth Severed Foot Found in BC
Another foot, the sixth in ten months, has washed has up on a BC island.
This latest foot was found on Vancouver Island by a woman who was walking along the beach.
The severed foot was found inside a size 10 men’s Adidas running shoe. The other feet were also found inside running shoes, apparently because the air pockets inside keep them buoyant.
While I personally think that all these feet turning up over 10 months in a relatively small area is too great a coincidence to be an accident, the Globe and Mail explains that:
Police have released few details on the sixth and fifth feet, but the other four showed signs of disarticulation, which means the foot separated naturally from the leg, not through severing that would prompt speculation of foul play.
Updates
Foot number 6 appears to be a fake, probably the work of a copy cat.
CNN reports,
A “skeletonized animal paw” had been placed in a sock and athletic shoe that was packed with dried seaweed, the British Columbia Coroners Service announced.
But a real 6th foot was discovered on Aug. 4.
Grounded 12-yr-old Appeals her Punishment and Wins
A 12-year-old Quebec girl who was grounded by her father appealed her punishment to the Quebec Superior Court, according to the AFP.
The girl was grounded for disobeying her father’s orders to stay off the Internet after she was caught chatting on websites he had blocked. She was also apparently posting “inappropriate pictures” of herself online. The punishment: she would not be allowed to go on an upcoming school trip.
Justice Suzanne Tessier today agreed with the girl’s position that the punishment meted out by her father was too harsh. The court overturned the grounding.
Kim Beaudoin, the father’s lawyer, is appealing the decision.
“She’s a child,” Beaudoin told AFP. “At her age, children test their limits and it’s up to their parents to set boundaries.”
“I started an appeal of the decision today to reestablish parental authority, and to ensure that this case doesn’t set a precedent,” she said. Otherwise, said Beaudoin, “parents are going to be walking on egg shells from now on.”
Thus begineth a new era in family law litigation.
I didn’t realize that an appellate system was in place for parents’ rules. The more you know!
Sniffing Armpits a Capital Offence
A 36-year-old man in Singapore has been jailed for 14 years for molesting residents of the country over the past 15 months.
His offence was forcefully sniffing the armpits of random women.
As you can probably expect, mental illness is suspected. But the court also sentenced him to 18 strokes to his buttocks with a cane.
From a Canadian perspective this seems strange - beyond the odour fetish - as we require moral responsibility for criminal sanctions.
How ethical is it to punish an offendor who is unlikely to grasp the significance of the punishment, or have it deter them from future reoffending?
Moral culpability in Canada is negated by incapacity, because there is no assertion of choice. The appropriate defence is found in the Criminal Code:
Defence of mental disorder
16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Further details are found in Part XX.1 of the Code.
Sanctions for Mental Disorders
A Not Criminally Responsible (NCR) defendant may still be committed, but this is to protect the public from harm and provide treatment, and not for punitive reasons.
NCR outcomes were found constitiutional in Winko v. BC (1999) SCC, where an NCR defendant that does not pose a public risk is provided an absolute discharge,
There is no presumption that the NCR accused poses a significant threat to the safety of the public. Restrictions on his or her liberty can only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat. The court or Review Board cannot avoid coming to a decision on this issue by stating, for example, that it is uncertain or cannot decide whether the NCR accused poses a significant threat to the safety of the public. If it cannot come to a decision with any certainty, then it has not found that the NCR accused poses a significant threat to the safety of the public.
Rights to NCR Defence
The issue of NCR can be raised at any time. The Crown can also raise it under certain circumstances.
R. v. Swain (1991) SCC ruled that a mental disorder has a prejudicial effect on the jury and affects the right of the accused to control their own defence. As a result, the Crown can only raise the NCR when:
- The accused’s own evidence tends to put his mental capacity into question
- After a finding of guilt, but before sentencing, the Crown can raise the issue.
But what exactly constitutes a mental disorder?
R. v. Simpson (1977) Ont. C.A. ruled that personality disorders could qualify as diseases of the mind. Medical evidence may be used in part, but this issue is a question of law.
Strangely, Canadian courts have not yet ruled as to whether armpit sniffing is a personality disorder that would qualify for the NCR defence.
Evaluating the NCR Defence
Cooper v. R (1980) SCC and R. v. Abbey (1982) SCC found that the defendant must appreciate the nature and the quality of the act. Appreciate means to estimate and understand the consequences, but does not include the need to appreciate the penal consequences.
If someone is sniffing armpits for 15 months, it’s not likely they appreciate that this is probably not a welcome gesture.
A more useful test might be found in R. v. Chaulk and Morrisette (1990) SCC. Appreciation of whether something is wrong is more than just legally wrong,
…if he is incapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society.
Omar’s Corner
We do know that men who eat meat have smellier armpits to women who sniff them, but we have no indication of the opposite effect.
Scientists have revealed that armpit odours do indicate female fertility, and ovulating women smell much better than those who are menstruating.
Occasionally we lapse into relationship advice here on Law is Cool more frequently than we should.
Still, a woman’s position in her menstrual cycle is typically information revealed well after a first date, at least, and the reasonable standards of a society even in Singapore would indicate that coming on this strong is definitely wrong.
The court did consider that the defendant would likely reoffend.
But punishing him with a sore bum is not likely to discourage or rehabilitate him in any way, and the most women in Singapore will probably see is deodorant sales skyrocket.
h/t Ismaeel Babur of UWO Civil Engineering and Internatlonal Development
Another Severed Foot Washes Ashore in BC
The Severed Foot Mystery continues to deepen as a fifth partially-submerged foot was discovered yesterday on a British Columbia shoreline.
AP reports that the left foot was discovered by a couple of passersby on Westham Island. The island is located in the mouth of the Fraser River, roughly 10km south of Vancouver International Airport.
As with the previous discovery, the foot was still wearing the shoe. No word yet on the brand. [Update: it's an Adidas, size 10!]
In spite of the similarities, police say it is too early to draw conclusions that link this foot to the other four that have washed ashore in previous months. While they are treating this as a criminal investigation, there is as yet no evidence that foul play is involved. The RCMP indicated that:
“there’s no evidence the feet were severed or removed from the victims’ legs by force.”
This could be just, you know, your random, run-of-the-mill floating foot. Curtis Ebbesmeyer, an oceanographer, explained that:
“the feet could have drifted from as far as 1,000 miles away. Ebbesmeyer said the feet could have been severed or detached from their bodies on their own.”
New Partners
We’re still under construction and revamping our site for the new academic year. Thank you once again for your patience.
After a year of operation, we are now Canada’s largest law school blog. None of this could have been done without the support of our readers (including the hate mail). But in order for this to continue, we do need new (incoming) law students to join our team to carry on the site once we graduate.
We’re also expanding our list of partners. Please contact us if you are interested in supporting our efforts.
Law is Cool - Podcast #9
Show Notes
Total running time 21:15
0:16 Jacob Kaufman and Omar Ha-Redeye introduce themselves.
0:44 Jacob and Omar discuss final exams.
2:10 Omar introduces Lisa Feinberg of UofO Law and the Canadian Interest and Public Policy Clinic (CIPPC), who is one of the law students that filed a complaint with the Privacy Commissioner over Facebook.
3:19 Lisa describes the 22 violations of PIPEDA that the students identified.
4:12 Lisa explains the effort that went into developing the project
5:01 Lisa tells us how the Privacy Commissioner creates and issues recommendations
5:50 Lisa relates the implications for Facebook users, even outside of Canada
7:39 Even though Lisa uses Facebook, she tells us how much more she learned about the site through the project.
9:11 Lisa expresses her interests in social networking, and how she got involved in the project.
11:23 Jacob shares some Facebook policies that demonstrate their attitude to privacy.
11:45 Jacob quotes James Grimmelman, who likens Facebook to a virus. Omar says it sounds like something out of The Matrix.
12:24 Omar introduces an interview with Khurrum Awan, complainant in a case against Maclean’s.
13:30 Khurrum describes the turnout at the Tribunal by members of the media, and the importance of independent coverage.
15:10 Khurrum explains the procedural elements of the Tribunal, when we can expect a decision, and where the case can potentially go from here.
16:32 Jacob talks about the different ways that law students apply their legal education towards advocacy work in real life.
17:08 Jacob shares some of the things he learned from the Facebook complaint, such as how applications can obtain your information without your explicit consent.
17:45 Jacob mentions Robert J. Sawyer’s theory in Maclean’s that notions of privacy are themselves outdated, and that we should have chips implanted in us at all times to track our movements.
18:40 Jacob mentions David Lat, a former American prosecutor who left the law to blog on Above the Law, and how he documented his weight-loss program online. Omar relates how this could be used in the potential trend of obesity lawsuits we could see in the future.
19:54 Jacob describes a New Brunswick case on the disclosure of Facebook materials, Knight v. Barrett, [2008] N.B.J. No. 102.
20:34 Omar and Jacob sign off.
(Look for an upcoming post on a recent Ontario decision regarding Facebook)
Chronic Drunk Driver Gets 20 Years, but not Designated a Dangerous Offender
A few months ago while listening to CBC Radio, I heard about the controversial case of a man being tried in Alberta for habitually drunk driving.
The man, Raymond Yellowknee, had already been convicted of drunk driving three times, when in 2006 he decided to drink and get behind the wheel yet again.
According to police, Yellowknee had a blood alcohol level of 0.22 (about three times the legal limit), and was driving a stolen pickup truck. Police pursued the vehicle, but Yellowknee refused to stop and instead provoked a high speed chase.
Just minutes later, Yellowknee lost control of the truck and crossed the center divider. He collided head-on with a passing car.
Inside the car were a mother, who was nearly finished her training to become a teacher, and her three young daughters. All were killed.
I became interested in the case when the radio broadcast reported that the Crown would be seeking a dangerous offender designation for Yellowknee under s. 753 of the Criminal Code. The designation allows the convicted offender to be sentenced to an indeterminate prison term.
The dangerous offender provisions are usually reserved for the most serious violent offenders that a court believes cannot be rehabilitated. This would have been the first time that the designation would be used for a habitual drunk driver.
A judge would have to acknowledge that drinking and driving is a serious personal injury offence: one which carries a sentence of ten years or more, and involves “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person” (CC s. 752).
The Canadian Press reports that yesterday judge Ernie Walter of the Alberta Provincial Court decided not to name Yellowknee a dangerous offender. I should point out that Yellowknee, 35, had by this point:
… amassed a total of 71 offences and has been out of jail for only one year since he was 18.
Instead, judge Walter felt (for whatever reason) that there was a chance for rehabilitation. The court sentenced Yellowknee to 20 years (less time already served) under the “long-term offender” provision.
Section 753.1 of the Criminal Code defines a long-term offender as one posing a substantial risk of re-offending but also one where “there is a reasonable possibility of eventual control of the risk in the community.”
Robert Solomon, Professor of Law at the University of Western Ontario, provided us with his opinion of yesterday’s decision:
The Crown had sought a dangerous offender designation, which carries an indeterminate sentence and lifetime parole. Instead, the judge held Mr.Yellowknee to be a long-term offender, which means that he will be supervised in the community for 10 years after his release from prison. Yellowknee was sentenced to 20.5 years imprisonment reduced to 16 years to reflect his pre-trial detention. In my view, several elements of the Yellowknee decision are gratifying. First, the judge clearly stated that Mr. Yellowknee’s long history of impaired driving offences, coupled with his horrific conduct on the day in question, met the criteria for being designated a dangerous offender. Although it is long overdue, this is the first case in which a Canadian court has acknowledged that repeat impaired driving offenders who pose ongoing risks can justifiably be labelled dangerous offenders. Second, Mr.Yellowknee’s long-term offender designation and lengthy sentence will protect the public for almost as long as a dangerous offender designation.
Without reading the decision [it seems to be unreported as yet], it is difficult to understand why the judge exercised his discretion not to label Mr. Yellowknee a dangerous offender. The facts are as close to a worst case scenario as one can imagine and a dangerous offender designation was clearly justified. However, the Supreme Court of Canada has previously indicated that the dangerous offender designation should not be used if a less onerous sentence would adequately protect the public. Perhaps the judge was concerned that a decision to label Mr. Yellowknee a dangerous offender would be overturned on appeal. Clearly, finding Mr. Yellowknee to be a long-term offender is less controversial than finding him to be a dangerous offender. Moreover, defence counsel had indicated that they would accept a long-term offender designation. The choice between the designations would not have made a great difference in this case, given the 16 year prison sentence.
Regardless of the ultimate designation handed down for Mr. Yellowknee, yesterday’s decision should set a precedent (admittedly, non-binding) for dealing with habitual drunk drivers and the substantial risk of harm that they pose to the community.
Podcast Feeds
