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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.
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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17:45 Jacob mentions Robert J. Sawyer’s theory in Maclean’s that notions of privacy are themselves outdated, and that we should have chips implanted in us at all times to track our movements.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.
Under Construction
We’re revamping the site, so we might be down intermittently over the next while.
Sorry about the inconvenience, and thank you for your patience.
Smack that Ass, all Over the Court
Justice of the Peace Gustavo “Gus” Garza has a unique approach to justice.
He ordered the step-father of a 14-year old girl to spank his daughter in his Texan court, or threatened to fine her $500 and charge her for truancy.
And we’re not talking about any symbolic discipline here. The heavy hand of the law has instructed the use of a large and hard wooden paddle.
Mark Sossi, attorney for the family, said in the petition,
The paddles provided by the judge are of such heft and weight that an individual striking an animal with one might be reasonably reported for cruelty to an animal.
Garza claims that 98% of those in his court comply with the request. He’s been on the bench for a year, and has been practicing law for 26 years, including his time as a prosecutor.
The family filed for a temporary injunction that will be heard today at 10 a.m. before 404th District Judge Abel Limas, seeking damages and a court statement denying Garza’s ability to order corporal punishment, which is apparently prohibited by the Los Fresnos Consolidated School District policies. They are also seeking his removal for incompetence and official misconduct.
Law on the Law of Spanking
The issue of spanking in schools was raised in the Supreme Court of Canada decision, Canadian Foundation for Children, Youth and the Law v. Canada (2004), commonly known as Law v. Canada.
The Foundation applied on the violation of ss. 7, 12, and 15(1) of the Charter to strike down s. 43 of the Criminal Code,
Protection of Persons in Authority
43. Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
Section 7 Analysis
S. 7 of the Charter states,
Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The first part of the test was conceded, that this section does affect the security of person of the children.
To assess if this infringed principles of fundamental justice, the court looked at 3 issues:
1) the principle that the child must be afforded independent procedural rights; (2) the principle that legislation affecting children must be in their best interests; and (3) the principle that criminal legislation must not be vague or overbroad.
Procedural rights were guaranteed by representation by the Crown. Principles of fundamental justice were defined using R. v. Malmo-Levine, [2003] 3 S.C.R. 571,
- Must be a legal principle to provide meaningful content for s. 7, and avoid adjudication of policy matters
- Sufficient consensus that the principle is “vital or fundamental to our societal notion of justice”
- Capable of identified with precision and yield predictable results
Although “best interests of a child” was a legal principle, there failed to be consensus on the issue or precision due to contextual issues.
However, the dissent did state that the phrase “reasonable under the circumstances” was unconstitutionally vague, and violated s. 1, “as proscribed by law.”
The court did state though that both sides agreed,
Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable.
Corporal punishment of a teenager using a paddle would therefore be considered unreasonable in the Canadian context.
The Khadr Conundrum Raised at UofO
“Omar Khadr is a Canadian citizen who was captured by U.S. forces in July 2002 when he was 15 years of age after allegedly throwing a grenade that fatally wounded a U.S. soldier. He is currently being detained and prosecuted by the U.S. at Guantánamo Bay.”
On May 28, 2008, six common law students from the University of Ottawa appeared before the Subcommittee on International Human Rights of the Standing Committee on Foreign Affairs and International Development, to testify that there are a number of legal avenues that may be taken if Khadr is returned to Canada and the evidence against him is found to be admissible.
“Canadian courts are fully able to administer justice in the Omar Khadr matter in a manner that complies with international law and the rule of law.” said the group.
Catherine Archibald, Clare Crummey, Andrew Harrington, Miguel Mendes, Ajmal Pashtoonyar, and Sean Richmond based their argument on a 150 page brief prepared for the Foreign Policy Practicum class of Prof. Craig Forcese.
The complete report is available here: 150-page brief.
Click here to see the team’s testimony before the House of Commons Subcommittee on International Human Rights.
Torwoli S. Dzuali
Cluster Bomb Ban a Moral Success
At an historic conference in Dublin this week, 111 countries agreed to a near-complete ban on the use of cluster munitions.
After 10 days of talks, and much lobbying and pressure from groups such as the International Committee of the Red Cross, delegates reached an agreement which is set to be ratified by their countries in December.
The agreement recognizes that there are a number of problems with cluster munitions. In particular, they spread deadly explosives over a large area which remain dormant on the ground. Unexploded ordinance spread in this way can pose a danger to civilians even many years after the conflict is over. In this respect, they are akin to landmines, which were banned by 158 countries under the Ottawa Treaty.
Signatories at the Dublin Conference will be required to stop manufacturing the weapons and will also have to destroy their existing stockpiles. Countries that have actually used cluster bombs in the past will also be required to assist in cleaning up the unexploded ordinance that they created. Though not all cluster munitions were banned, those that are still allowed to be used are required to have a self-destruct or self-neutralizing mechanism.
Unfortunately, not all of the major world military powers signed the cluster munitions ban on May 29th, 2008. Notably absent were The United States, China, Japan, Russia, India, and Israel.
The United States, one of the primary manufacturers and users of cluster munitions has been the subject of much criticism for refusing to participate in the Dublin process.
Some lawmakers have stepped up efforts to encourage the U.S. to sign on to the ban. That was the subject of a joint resolution introduced on June 3rd by Sen. Dianne Feinstein, Sen. Patrick Leahy, and Rep. James P. McGovern. The text of the resolution acknowledges that:
“Civilians make up 98 percent of those killed or injured by cluster munitions of which more than 25 percent are children.
…
“[and that in] Laos alone there are millions of unexploded submunitions, left over from United States bombing missions in the 1960s and 1970s, and approximately 11,000 people, 30 percent of them children, have been killed or injured since the war ended.”
However, State Department spokesperson Tom Casey is quoted as saying:
“While the United States shares the humanitarian concerns of those in Dublin, cluster munitions have demonstrated military utility, and their elimination from U.S. stockpiles would put the lives of our soldiers and those of our coalition partners at risk.”
Despite the refusal of the United States and other military powers to sign on to the ban, the Dublin Conference was largely a success. This is especially so from a moral perspective: the international community has sent a clear signal that cluster munitions are intolerable and that using them will draw international condemnation and backlash.
Even those countries that have chosen not to sign the cluster munitions ban will be under significant pressure to avoid their use. According to the Christian Science Monitor:
“Activists are hopeful that the treaty will influence nonsignatories, pointing to the 1997 ban on land mines. Of a handful of nations – including the US – that didn’t sign it, only Burma still uses land mines, says Simon Conway, co-chair of Cluster Munitions Coalition.”
Supporting Lawyer Mothers is a Bad Thing?
We’ve all heard it from some of those more sharp-tongued friends of ours – all those single mothers are eroding our economy and stealing our taxes.
The Law Society of Upper Canada (LSUC) is getting heat now for supporting single mothers of another type – sole practitioners – and also those in smaller firms.
In a unanimous vote, LSUC will increase it’s fees by a measly $5-15 per lawyer to assist mothers and fathers seeking parental leave by providing grants of $3,000 a month.
But Karen Selick of the National Post slams the program, calling it “creeping socialism” (that’s a bad thing, by the way).
She forgets that Canada is often classified as a socialist democracy, especially the structure of our health care system, which to most Canadians is our proudest symbol of nationalism.
Selick also neglects to mention that the initiative was the result of a province-wide consultation by LSUC’s Working Group on the Retention of Women in Private Practice, which included many different social and ethnic groups and firms of all sizes. LSUC heard from 900 lawyers and students and received over 55 written submissions.
But consulting, of course, is so very undemocratic.
The Working Group states,
Women have been entering the private practice of law in record numbers for over two decades. However, they have also been leaving in great numbers, largely because private practice has not adapted to their realities, such as childbirth and taking on a significant portion of family responsibilities.
Also overlooked is that the move is part of a major plan to address the issue of equity in the workplace. Other recommendations adopted include:
- a think tank to promote retention and advancement of women in law
- direct support for women
- practice locums, for more leave and flex-time
- career development resources
- creating an advisory group
- networking strategies for minority (Francophone, Aboriginal) women
- a review program
But they also clearly express that this initiative begins in the law schools by preparing female law students for the realities of law.
The entire comprehensive 174-page report can be found here.
If valuable legal talent is being lost to inflexible and inadvertently discriminatory work practices, you would think this would be perceived as a progressive move.
Selick says,
What I have never understood is why anyone gives a damn whether women are leaving private practice and clustering in government or corporate jobs, or quitting entirely.
[emphasis added]
Beyond ethical and humanitarian concerns, the legal industry loses millions of dollars a year due to skilled practitioners leaving the law.
Sean Weir of Borden, Ladner, Gervais stated in May 2006 edition of Canadian Lawyer,
We invest a lot in education and programs and do a lot of intensive training from new associates and junior partners.
So when you have a well thought out plan that will save the legal industry mega bucks, and it’s also the right thing to do, why would someone think that it’s a bad thing?
Maybe it’s because they also think that human rights laws are phony too.
h/t Sharon Kour of UWO Law
Updates
Selick justifies her stance using legal economic theory. This type of analysis is frequently used by libertarians and the far right, as they create arbitrary cost-benefit analysis that attempt to prove their position.
More recently, legal economics has become popularized by books such as More Sex is Safer Sex. The author comes to some absurd conclusions, such as it’s better for a sexually inactive person to have a fling with a more promiscuous partner and contract a STD before returning to their inactive lifestyle, because they removed the opportunity of another more active person from getting the disease and passing it on to others.
But they also come up with some quite scary policy stances, such as justifying racial profiling. The problem with legal economics is that their supporters selectively choose the facts and statistics they include in their calculations. In the case of racial profiling, for example, many other studies have demonstrating that it actually increases cost and decreases effectiveness. Legal economists rarely have scientific or statistical backgrounds.
Canada invests hundreds of millions of dollars into our publicly subsidized education system. Despite rising tuition costs, they are still relatively low compared to other nations. But this means that your tax dollars are going into funding the education of women, who are now comprising 50-60% of law school classes. By not creating a more favorable career environment, we lose the incredible investment we put into these individuals. It’s these types of figures that are conveniently overlooked by strictly utilitarian legal economists, who falsely present their arguments as as logical and well-thought out.
