Ainsley Brown will be doing a special series on the “middle passage law,” addressing specific areas of diversity in the law.
Welcome to the middle passage law series. This series is an attempt – hopefully a successful one – to raise diversity issues and begin a dialog between law students. Specifically, middle passage law will be black/Afro-Canadian focused.
Oh My! Here we go again.
Yes black focused. I will give you a moment to either collect yourself from the discomfort or elation you might have just felt.
Are you ok? If yes then good, if not then that’s good as well.
Middle passage law is not intended to be divisive – as divisive the issue of race can be at times. Neither is it meant to appeal only to black law students. No! Instead it is meant to appeal to all fair minded people who are concerned with justice and wish to have an open and honest discussion about issues that affect us all. And I hope that is most law students.
Why black diversity? Why indeed. The short answer is: it’s important. It is important not just to provide information but also to provide a medium in which and through which black diversity issues can be discussed in constructive, open and honest ways.
As such, it is important – and I don’t know if you are you ready for this – to admit that Canada has racial problems. And the law, as much as some would like to think or have others think is not immune.
Ok, There I Said It!
You don’t have to take my word for it – and you shouldn’t – just take a closer look at its instruction, practice or its application to see the truth.
I know, I know that feeling of discomfort or elation is back isn’t it. Relax. Take a breath, collect yourself and read on.
But why should an admission that the Canadian legal profession has problems with racial diversity trigger such a response? Would your response be the same if the admission was made about women? Why is it that we are more at ease as a profession, be it in law schools, or in firms or in the justice system, addressing gender diversity problems than we are addressing racial diversity?
This is not to say that other diversity communities are not important, for they are. Or that there isn’t tremendous overlap in both principle and substance between black diversity issues and issues facing other communities – for there is. Then why black diversity?
The answer is the aim of the series. Middle passage law is an attempt to fill a void and bring awareness to issues that affect a specifically identified community that is often overlooked or portrayed negatively in Canada – Afro-Canadians.
Middle passage law is not intended to be simplistic, nor will it be. This complexity will be reflected in the multiplicity of issues that will be tackled always bearing in mind that ultimately afro-Canadian issues are not exclusively – and put this in finger quotes – “Afro-Canadian” but are principally Canadian.
Then what’s with the name – middle passage law? Stay tuned.
The winners of the Access GroupOne Less Worry scholarship contest are out. All of the contestants were in law school, and entries were opened to the public to select the winner.
Steven Luther was the Grand Prize winner of $10,000 for this video:
Every state in the U.S. has a lemon law that gives consumers redress when they find that they’ve purchased a defective car and the manufacturer can’t (or won’t) fix it. In addition, there are a number of U.S. federal laws (like the Magnuson-Moss Warranty Act) that can be used to fight on behalf of consumers who have lemon vehicles.
In Canada, there is no national lemon law, but each province has some consumer protection statutes. Ontario tried to pass a lemon law in 2002, but the efforts were not successful. Consumers can, however, submit disputes to the Canadian Motor Vehicle Arbitration Plan (CAMVAP) for neutral third-party resolution.
According to the CAMVAP website,
CAMVAP covers most domestic and imported passenger cars, light trucks, sport utility vehicles, vans and multi-purpose passenger vehicles purchased or leased in Canada, as long as the vehicle is the current model or one of four previous model years.
Unlike U.S. arbitration, which is typically binding for the manufacturer but non-binding for the consumer, CAMVAP arbitration is binding for both parties. In other words, once the arbitrator has reached a decision, that’s the final word on the matter.
CAMVAP arbitration also limits the kinds of refunds and reimbursements that consumers can receive. For example, it can’t reimburse expenses to buy or lease a vehicle, void a purchase or lease agreement, or award exemplary or punitive damages.
As with any arbitration, if you enter into CAMVAP, you should have a lawyer at your side. Although it’s not mandatory to do so, keep in mind that car manufacturers have teams of lawyers who do nothing but fight lemon law claims. You’ll only be on equal footing if you have legal representation.
The bottom line? Canadian consumers seem to have far fewer protections than their U.S. counterparts.
Sergei Lemberg of Lemon Justice is sitting in the guest blogger’s chair today. He has some great info about what you can do if you wind up with a defective new or used vehicle.
Two lawyers are working together on a contract for a client, using a similar contract prepared for another client and fine-tuning the wording to suit this situation. They have used technology to full advantage, saving the original contract under a new name, tracking changes, and writing comments to each other as the drafts evolved. When the draft is ready, one of the lawyers switches from “Final Showing Mark-up” to “Final”, and sends the document to the client by e-mail.
Imagine their distress when the lawyers find out that the client was able to access the document metadata to learn the name of the other client, read the original document prepared for that client, and see all the changes and comments made.
Not only is this embarrassing, it is a breach of professional ethics.
It’s important to understand that most word processing and other “office suite” programs automatically attach metadata to documents, often without the lawyer’s knowledge. Usually this “automatic” metadata would contain things like: the author’s name; the date the document was last saved; and how much time was spent working on the document.
If the lawyer makes use of commenting or revision tracking features, as described in “cautionary tale” above, the metadata would be rich with all sorts of juicy – and confidential – details that could come to the attention of a client, adversary, or third party. For example, anyone with tech savviness could discover the names of reviewers, the number of revisions, and might even be able to see the hidden reviewers’ comments that do not appear on printed copies of the document.
Lawyers have an ethical obligation, when transmitting documents electronically, to exercise reasonable care to ensure that clients’ confidential information is not disclosed in the
metadata.
There are practices that minimize the creation of metadata, as well as ways to remove the
hidden data before distribution or publication so it is not accessible to people for whom it is
not intended. Before removing metadata, lawyers should ensure that there are no legal
requirements to retain the metadata (e.g. discovery obligations).
The new guidelines provide instructions on how to eliminate hidden data, which can be found in Appendix 2 of the document.
We’ve been following the severed foot story at Law is Cool for some time now. Ian MacKenzie, a freelance new media producer from Vancouver, contacted us to let us know that he’s been doing some independent journalism on the topic as well. His video, including some interesting interviews with RCMP and B.C. Coroner’s Service spokespeople, is embedded below.
If you haven’t heard about it yet, the story is that over the past 18 months, 6 severed feet have washed ashore on BC’s coast. The story has achieved international notoriety, as investigators on both sides of the border have no idea where the feet came from.
DNA analysis has revealed Foot #3 and Foot #5 came from the same person (though the body has never been found). Also, one foot has been connected to a known missing person, and another has been identified as coming from a female. As for the rest of the mystery, answers continue to elude police.
These guidelines are intended to help lawyers take full advantage of technology while remaining in complaince with the CBA’s Code of Professional Conduct.
The marketing section mentions blogs starting on page 13, saying that marketing principles and advertising rules must also be abided by. I never thought until today that broken links could be unethical.
More relevant are the Online Discussion Best Practices starting page 17, which state the following principles when writing online:
be clear when writing as a lawyer and offering legal services, and provide contact information when doing so;
avoid jeopardizing professional integrity, independence or competence through online discussions
be courteous, civil, and act in good faith;
encourage public respect for the administration of justice, and provide criticisms in a bona fide and reasoned manner;
be aware that the mere fact that one is a lawyer will add weight and credibility to any public statements; and,
hold the same respect for the administration of justice online as in other forums and media, complying with rules on advertising, solicitation and marketing
Appendix 1 has links to similar guidelines by several provincial law associations.
A decision to be rendered [yesterday] by the Supreme Court of Canada may help clarify another vague area of the law as it pertains to youth justice. The decision impacts police procedures when it comes to explaining a detained young person’s rights and waiver thereof, before any statement they make is admissible. The issues presented by L.T.H. v. Her Majesty the Queen(N.S.) (31763) regard section 146(2)(b) and 146(4) of the Youth Criminal Justice Act( 2002, c. 1 ) (YCJA), reproduced below. Some of the questions in issue, as highlighted by an intervening party, Justice for Children and Youth, include:
1- What was the intention of Parliament regarding s.146 of the YCJA?
2- Is it a subjective or objective test for adequacy under s. 146(2)(b)? (nature of the legal test).
3- What is the standard of proof for compliance under s.146 of the YCJA?
Facts and Procedural History
LTH was apprehended following a police chase. He was arrested for dangerous driving and causing bodily harm, contrary to s. 249 (3) of the Criminal Code. When charged, LTH was 15 years old and as such, was regarded as a young person under s. 2(1) of the YCJA. Upon being read his rights from the young offender statement form, he waived his rights to consult with a lawyer or a parent, adult relative or an appropriate adult, or to have one present when giving the statements. LTH signed the waiver form and answered to the officer’s questions. A voir dire was held to determine the admissibility of his statements and the Youth Justice Court judge ruled the statement inadmissible. LTH’s mother gave evidence that her son had a learning disorder and that she had informed the police officers of that fact before questioning.
On appeal, the verdict was set aside and a new trial ordered. The Nova Scotia Court of Appeal judges found that the Youth Justice Court judge committed several errors of law in finding that the provisions of s.146 of the YCJA were not met (see R. v. LTH(2006), 248 N.S.R. (2d) 285. The errors relate to the nature of the legal test for compliance and the standard of proof. This conclusion was reached by way of a literal reading of the provisions as reproduced here:
146. When statements are admissible
(2) No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless
(a) the statement was voluntary
(b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that
(i) the young person is under no obligation to make a statement,
(ii) any statement made by the young person may be used as evidence in proceedings against him or her,
(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and
(iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;
(c) the young person has, before the statement was made, been given a reasonable opportunity to consult
(i) with counsel, and
(ii) with a parent or, in the absence of a parent, an adult relative, or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and
(d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.
And
(4) A young person may waive the rights under paragraph (2)(c) or (d) but any such waiver
(a) must be recorded on video tape or audio tape; or
(b) must be in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.
Nature of the Legal Test
The justices of the Nova Scotia Court of Appeal determined that the judge erred in finding a requirement for the Crown to prove beyond a reasonable doubt that the young person actually understood the rights afforded to him under s.146(2)(b). This, they say, goes beyond the legislative intent. “Rather, what was intended was an inquiry pertaining to the clarity of the explanation. This would take into account, among other things, the practices and methods of the person “in authority” in obtaining the statement, and the basis for his conclusion that the explanation of his or her rights was clear and appropriate for the particular young person to whom it was given [25]”. However, the appeal justices determined that if this test was meant to apply to the waiver provisions in s.146 (4), then the Youth Justice Court judge was correct. The legislation, after all, stipulates a more rigorous investigation to waivers of such rights. The waiver must be either recorded or be in writing and should include a statement signed by the young person that certifies their comprehension of the rights waived.
Standard of Proof
When it came to determining the standard of proof for s.146(2)(b), the Nova Scotia Court of Appeal justices agreed with the Youth Justice Court judge in identifying and applying the standard of proof beyond a reasonable doubt. This is a result of noting the common law language in the text of the provision as it relates to voluntariness and admissibility of evidence. However, this threshold was deemed too high for s.146 (4), contrary to the findings by the Youth Justice Court judge. The justices applied and followed R. v. Young(1997), 34 O.R. (3d) 177 and R.v.F.(M.W.) (2004), 188 C.C.C. (3d) 340 in placing the onus on the Crown to establish waiver on a balance of probabilities.
Intervener Submission
Missing from this decision is any appreciation of the impact of cognitive and learning disabilities on the protections afforded by s.146 of the YCJA. An intervening party, Justice for Children and Youth, provided submissions that favor a more proactive role by the police to ensure understanding of the young person’s rights. The intervener is of the view that “[p]olice officers must engage young people during the explanation of their rights because people afflicted with learning disabilities use pseudo-sophisticated language, even when they do not understand the nature of what is being explained to them” [Factum at para 22].
In case of waiver, the intervening party recommends that the explanation by the police “should involve asking the accused to explain in his own words the roles of police officers and lawyers and the nature of the rights he is waiving” [Factum at para 23]. In cases where the apprehended young person suffers from a learning disability, “it is the duty of the officer to ensure that the young person has received special assistance from a lawyer or another trusted person, in order to ensure that his rights are protected” [Factum at para 23].
The intervening party provides a resourceful document that could be put to good use by the Supreme Court of Canada. Their factum however, does not fully engage the legal questions with an appreciation to the difference between s.146 (2) (b) and s.146 (4), something that the Nova Scotia Court of Appeal justices reprimanded the Youth Justice Court judge for not doing. Nevertheless, this approach might clue us in to how the Supreme Court of Canada will decide in this case; perhaps the court will choose not to distinguish the two provisions of the Act as starkly as did the Court of Appeal. Interpreting the nature of the legal test and the standard of proof in s. 146 uniformly (as a whole) could better serve youth justice, by providing a similar subjective reading (legal test) and an analagous high standard of proof. In so doing, the Supreme Court of Canada would interpret s.146 of the YCJA in a holistic matter, in keeping with the spirit of the act that emerged to enhance the protections of young people faced with an intimidating and complicated Criminal Justice System. That, may might just have been the intent of parliament.
The threat of global warming is so great that campaigners were justified in causing more than £35,000 worth of damage to a coal-fired power station, a jury decided yesterday. In a verdict that will have shocked ministers and energy companies the jury at Maidstone Crown Court cleared six Greenpeace activists of criminal damage.
Jurors accepted defence arguments that the six had a “lawful excuse” to damage property at Kingsnorth power station in Kent to prevent even greater damage caused by climate change. The defence of “lawful excuse” under the Criminal Damage Act 1971 allows damage to be caused to property to prevent even greater damage – such as breaking down the door of a burning house to tackle a fire.
During the trial, the world’s leading climate scientist came to court and challenged the government’s plans for new coal, calling for Gordon Brown to announce a moratorium on all new coal-fired power plants without carbon capture and storage. Cameron’s environmental policy adviser said there was “a staggering mismatch between what we’ve heard from government and what we’ve seen from government in terms of policy”. An expert on climate change impacts in the UK said some of the property in immediate need of protection from sea level rises included parts of Kent (Kingsnorth being “extremely vulnerable”) and that “it behoves us to act with urgency”. And an Inuit leader told of his first hand experiences of the impacts of climate change.
After hearing all of the evidence, the jurors (representatives of ordinary British people) supported the right to take direct action to protect the climate from the burning of coal.
Implications for “eco-terrorists” in the U.K. and abroad, who still constitute the largest global terrorist threat, could be significant.
Biggest Terrorists are Still the Elves
The FBI reported earlier this year that while America and the world were diverted by other political issues, eco-terrorism continues to be the biggest domestic threat.
Bron Taylor, a professor of religion and nature at the University of Florida describes the Earth Liberation Front (ELF or Elves), who are considered the largest of these groups,
Generally speaking, the Earth Liberation folks are motivated by a deep kind of affective connection to nature that many of them would characterize as spiritual or religious. They believe that the human species is perpetrating a war on nature and that those who are connected to nature and belong to it have a right to defend themselves.
Their success is attributed to their large and diversely spread membership, but their exact numbers or full capabilities continue to be unknown
Every time a fire breaks out and somebody takes a spray ocan and writes ‘ELF’ or ‘ALF’ on there, then everybody gets all excited that ‘Oh this movement has started back up. The movement never really left.
However, fighting environmentalists at home is not nearly as an attractive political agenda in Canada or the U.S.
And there are little oil revenues to be obtained from it either.
Recent Syncrude Case
On July 24, 2008, protesters entered a Syncrude mine in Alberta and put up signs.
Syncrude issued a lawsuit on Aug. 15, 2008 for $120,000 and an injunction to keep Greenpeace members off its property. No property damage or disruption of operations were alleged.
This is very common in the United States where you have all the anti-abortion protesters who stand outside clinics saying ‘save lives.’ They’ve been sued in the past under a similar type (of suit).
Telling the protesters to stop coming on the property is even more powerful than seeking money.
If the court grants the injunction and the group defies it, they’re no longer at war with Syncrude — now they’re at war with the judge and in contempt of court.
References to information at Wikipedia have shown up in various inappropriate places, from homework assignments to college term papers. But there’s one place that it seems everyone can agree that it doesn’t belong: the US court system. The US Court of Appeals for the 8th Circuit, ruling in an immigration case, has agreed with the Board of Immigration Appeals in finding that a reliance on information in Wikipedia is insufficient grounds for a ruling. Nevertheless, it sent the case back to the Board, requesting that it clarify its decision.
The decision, filed late last week, stems from a case where an individual entered the country using a forged passport, and then applied for asylum based on the threat of torture if she were returned to her place of origin. Her application for asylum, and the processing of her case by the immigration courts, hinge on a personal identification document called a laissez-passer issued by the Ethiopian government.
Using the Wikipedia page as evidence, the government convinced an immigration judge that the document did not prove her identity, calling it a one-way travel document based on information provided by the applicant.
While the Board of Immigration Appeals subsequently said it didn’t “encourage the use of resources such as Wikipedia.com in reaching pivotal decisions in immigration proceedings,” it allowed the decision to stand since it couldn’t find any clear error.
The three-judge panel of the appeals court found that split decision disturbing. The court reiterated that anyone can edit Wikipedia and there’s no guarantee that the information on the page at the time the government officials looked at it had any correct information at all. The site may have misled and tainted government officials’ decisions in the case, the judges ruled:
The [Board of Immigration Appeals] presumably was concerned that Wikipedia is not a sufficiently reliable source on which to rest the determination that an alien alleging a risk of future persecution is not entitled to asylum. [...]
We do not know whether the [Immigration Judge] would have reached the same conclusion without Wikipedia, or whether (and, if so, why) the [Board of Immigration Appeals] believes that the IJ’s consideration of Wikipedia was harmless error, in the sense that it did not influence the IJ’s decision.
The decision also raises serious civil rights issues, if officers of Homeland Security are using sources like Wikipedia instead of training and briefings to guide their decisions.
It also raises the issue of lawyers being familiar with Wiki technology so that they can articulate and understand the editing process involved, and appropriate shortcomings and flaws.
By: Lawrence Gridin · September 10, 2008 · Filed Under Politics · 4 Comments
Just moments ago it was announced that Elizabeth May, leader of the Green Party, will in fact be appearing in the upcoming televised election debates.
The consortium of broadcasters – representing the CBC, Radio-Canada, CTV, Global TV, and TVA – decided today to allow Ms. May to participate in the debates.
It’s no secret that the reason for May’s exclusion was the pressure brought to bear by the leaders of the other parties. Prime Minister Stephen Harper and NDP leader Jack Layton had threatened to boycott the debates if the Greens were allowed to participate.
It was claimed by the NDP and Conservatives that Elizabeth May was nothing more than Liberal leader Stephan Dion’s cheerleader, and that having both of them present at the same debates would unfairly skew the discussions.
While the Liberals and the Greens have indeed made strategic agreements to cooperate on some issues (and not to compete for a seat in May’s riding) they are still independent parties with independent agendas. Hopefully May’s participation in the debates will make this fact very clear to the Canadian public.
May cites the public outrage at the affront to democracy created by these “backroom threats” as the reason for the broadcasting commission’s change of heart:
“It’s grassroots power of the people,” she said.
“People from all walks of life were incensed … I had a lady this morning at the Pictou (N.S.) Tim Hortons say to me, ‘I’ve been Conservative all my life, I’m not voting Tory again,’ because she found it so offensive.”
After the NDP decided to back down from the boycott threat, the Tories quickly followed suit. Conservative spokesman Kory Teneycke took the opportunity to disown the policy, claiming that it was an NDP idea all along:
“It appears the NDP has changed their position. Our position has been to support the NDP on this point of principle. We are not going to be the only ones to boycott the debate,” [Conservative Spokesman Kory Teneycke] said.
(Source: Globe and Mail)
“The truth of the matter is the NDP took a position and we agreed to back them because we, like the NDP, thought that this was unfair on principle,” said Sen. Marjory LeBreton, the Conservative campaign co-chair.
“But if Jack Layton has decided to change his position, I mean, we’re not going to stand in the way of her participating in the debate.”
(Source: CP)
I for one am looking forward to a more democratic debate. It doesn’t matter which party you support; the more viewpoints and choices that Canadians are exposed to, the healthier our political process will be.
Though political support for the party continues to grow, a consortium of Canadian broadcasters has yet again decided not to allow the Green Party to participate in the leaders’ debates.
This is despite the fact that the Green Party, which is headed by Elizabeth May, recently acquired its first Member of Parliament when Independent (former Liberal) Blair Wilson decided to don the party colours.
Previously, the need to have at least one MP was put forth by the consortium as a prerequisite for participation in the debates.
As of last week, the Greens have an MP, but their request for participation was denied anyway.
Public interest – defined as having more than 5% support in a recent national poll – was another requirement.
According to the latest Strategic Council poll (PDF), the Greens have about 9% support across Canada. Out west, this number is as high as 12%, compared to just 18% for the Liberals.
Indeed, the Greens are ahead of the Bloc Québécois in nation-wide support. The Bloc is a separatist party with the explicit goal of tearing the fabric of Canada apart, and one which does not even field candidates outside of Québec. Nevertheless, while Bloc leader Gilles Duceppe will be appearing in the debates, Elizabeth May will not.
Michael Byers, the NDP candidate for Vancouver-Centre, supported the decision of the consortium. He is quoted calling May the leader of a “single-issue party:”
“My leader, Jack Layton, is running to be prime minister and so are the leaders of the other parties,” Byers told CBC News on Monday from Vancouver. “This is a leaders’ debate. It’s not an environment ministers’ debate.”
(Source: CBC)
The wholly incorrect perception of the Greens as a single-issue party is precisely the problem that Elizabeth May is unable to address now that she has been denied access to the debates.
May said in a statement that she is considering pursuing legal action against the TV networks. Not that I have much (read: any) knowledge of election law, but unfortunately I doubt that there’s a case here.
As undemocratic as it seems, the televised leaders’ debates are produced by private TV networks. Though the CBC is a Crown corporation – with the mandate to foster Canadian unity and promote the expression of diverse ideas - there is good case law suggesting that any legal action on May’s part would fail.
It’s been tried before.
In National Party of Canada v. Canada Broadcasting Corp. (1993), 106 D.L.R. (4th) 568 (Alta. Q.B.), the court decided that the CBC was not subject to Charter scrutiny when it denied the National Party the opportunity to participate in the leadership debates. The Supreme Court of Canada refused to grant expedited leave to appeal.
“In my view, the CBC is acting as a broadcaster and not as an agent of the government in its participation in the Broadcasters’ Consortium.”
and further that
“It is not the function of the government or indeed the courts to dictate to the news media what they should report. The broadcasters are exercising a function that is very central to the democratic process. But it is a function that they perform quite independently of government.
…
What the applicants are really asking this court to do is to dictate the content and the agenda of the political debate in the forthcoming federal general election. It is for the leaders of the various political parties to decide of their own free will and accord, without any coercion from this court, whom they want to debate and when and on what terms such debates should take place. It is not for this court to dictate the agenda of political debate.
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