Madame Arbour Returns to Canada (Episode 20)

By: Omar Ha-Redeye · April 28, 2009 · Filed Under Aboriginal Law, Civil Rights, Constitutional Law, Immigration Law, Labour & Employment Law, Podcasts · 6 Comments 

Former Osgoode Hall law professor and Supreme Court justice, Madame Louise Arbour, recently completed a four-year term as the United Nations High Commissioner on Human Rights.

She will take on the position of President and Chief Executive Officer of the International Crisis Group in July 2009, but before that she’s making a brief return to the Canadian human rights scene.

Earlier today I heard her speak at the Public Service Alliance of Canada (PSAC) convention on the National Day of Mourning, an annual event recognized by the Federal government since 1991 to remember workers who lost their lives or were injured on the job.

Madame Arbour is perhaps best known in constitutional circles for her dissent in Gosselin v. Quebec, which would have given social and economic rights to Canadians.

Despite the court’s decision to the contrary, Madame Arbour is still making the case for social and economic rights in the future of Canada.

She characterized a dichotomy between the West and the East, with the former claiming to champion liberty, the latter championing social and economic rights, and neither side really hearing each other in the process.

Her talk was premised on the Roosevelt’s fundemental freedoms that gave way to the Universal Declaration of Human Rights, specifically the freedom from fear and the freedom from want.  She related the former fear to legal abuses by Western governments in the so-called “war on terrorism.”  The second fear is increasingly relevant in our tough economic times, the true test of which will be our treatment of migrant workers.

The key to our true security lies in addressing social and economic problems by dealing with them as fundamental rights, and the sooner we can realize this the safer and more prosperous we will all be.

Get Over the Paranoia

By: Omar Ha-Redeye · April 28, 2009 · Filed Under Marketing/PR in Law · 2 Comments 

Thesis:  Command-and-control management styles both derive from and reinforce bureaucracy, power tripping and an overall culture of paranoia.

If there is an industry characterized by paranoia, it’s law.  We just call it due diligence, and it forms a major part of what many senior lawyers do on a day to day basis.

For this reason, communication is often viewed as a liability, not an asset – especially when it’s in writing.  The alternative is a decided lack of communication, or cryptic messages that allow adequate explanatory wiggle room.

Of course no business can properly or competitively function this way, which is why law firms can be some of the most poorly run businesses in our society.

It’s not surprising that blogs are often viewed by those in the legal industry as a liability and not an asset.  Blogs can and do create legal problems.

But Struan Robertson addressed all of this years ago in Outlaw,

Do remember that suits look more attractive than pyjamas to prowling litigants, but do not panic. Businesses have always trusted their staff to communicate with customers. Corporate blogging is just another channel for communication. What matters is that, if employers embrace it, they must do so with their eyes wide open.

Good blogs bring out a personality. They need spontaneity and oxygen, not censorship – which means keeping legal and marketing departments at arm’s length. That is possible, despite the risks. However, staff should still follow a blogging policy. This can be standalone or part of a wider communications policy. Keep it simple and make sure people know about it. Set out the rules: when they can blog, what they can say, what they shouldn’t say, what happens if they break the rules. And don’t allow everyone to blog. You need to trust your blogger.

Policies about confidential information can be established, and indeed better monitored on social media than breaches of the more traditional slip of tongue or missent e-mail.

The reason for blogging is for client development, something lawyers have always done,

Law firms, of course, have always sold services. And we are a small but powerful engine in the growth of the services sector. We strategize with and guide big clients every day.

You can no more stiffle social media participation than you can muzzle our employees at the water cooler or the corner bar.  Employers cannot control what their employees will say, but they can empower them, explain clear guidelines, and keep them accountable.

It’s time to move from a transactional form of leadership and governance  in law firms, to that of a transformational style.  The conversation must continue, both with the market and within the organization.

The trick here is to be cautious, and not afraid:

I must not fear.
Fear is the mind-killer.
Fear is the little-death that brings total obliteration.
I will face my fear.
I will permit it to pass over me and through me.
And when it has gone past I will turn the inner eye to see its path.
Where the fear has gone there will be nothing.
Only I will remain.

-  Bene Gesserit Litany Against Fear – From Frank Herbert’s Dune Book Series


The above is part of The Cluetrain Plus 10, a collaborative celebration of the tenth anniversary of the ground-breaking book The Cluetrain Manifesto.

Facebook and Expectations of Privacy

By: Vitali Berditchevski · April 24, 2009 · Filed Under Labour & Employment Law, Technology · 5 Comments 

Omar posted a story on Slaw about a woman who called in sick (and apparently had to stay in the dark and couldn’t work on the computer) and was terminated after someone at her work noticed that she was on facebook. The company claimed that the trust in the employee had been destroyed and her employment could not longer continue.

Incidentally, she was not the first case of a questionable facebook-related action against employees. Last fall, an Australian man was denied sick pay after taking a sick day, but writing “[Kyle Doyle] is not going to work; f*ck it I’m still trashed. SICKIE WOO!” as his facebook status.

This raises serious questions about expectations of privacy. It is well known by now that anything done on computers at the office has no reasonable expectation of privacy. It makes sense therefore that if an employee is wasting company time by, say, surfing facebook, this can be grounds for disciplinary actions. But what if the employee is using their own computer (or, as the woman claimed, her iphone)?

The woman is outraged at what she calls “spying” by the company. But does the company have the right to do this? Assuming that this woman was getting paid for her sick days, she is still technically on company time. Perhaps the expectation of privacy rules should be redefined in terms of time, not in terms of which computer you are using. To use another example, would the company be justified in firing an employee who is wasting time on facebook while at the office…but is using a personal smartphone with a 3G connection instead of company computers? The effect is the same: time is wasted. Just something to think about.

I will say one thing though: if my employer starts tracking my facebook account in off-hours, I will not be happy. This falls under the “work-life balance” category.

***Entry updated due to inaccuracies in the original. Sorry.***

Bottums up!

By: Edward D. Prutschi · April 23, 2009 · Filed Under Criminal Law, Humour · 3 Comments 

This video, purportedly taken during a roadside sobriety check in Russia (though I’ve listened to it many times and can’t be definitively certain about the language), demonstrates what happens when an Alcotest has truly met it’s match.

Watch it. Dry your eyes from crying, and then watch it again. Pause. Then come back here…

…You done watching it now? Yes. You did just see a man try to DRINK THE BREATHALYZER MACHINE.

Jersey Court Rejects Wikipedia Evidence

By: Omar Ha-Redeye · April 23, 2009 · Filed Under Evidence, Technology · 1 Comment 

A NJ Appellate Division court says that Wikipedia is too malleable to be used as evidence in Palisades Collection v. Graubard, A-1338-07.

Mary Pat Gallagher of the New Jersey Law Journal reported yesterday,

“[I]t is entirely possible for a party in litigation to alter a Wikipedia article, print the article and thereafter offer it in support of any given position,” an appeals court held. “Such a malleable source of information is inherently unreliable and clearly not one ‘whose accuracy cannot reasonably be questioned,’” such as would support judicial notice under New Jersey Evidence Rule 201(b)(3).

The decision reversed an opinion by the lower court that the Wikipedia entry could be admitted under the provision that describes the type of material appropriate for judicial notice.

The issue of vandalism, or deliberately altering Wikipedia content and then printing it to tender as evidence, was raised by the court.

The reliability of Wikipedia is discussed by an entry on Wikipedia itself; its accuracy can approach that of mainstream encyclopedias.

Perhaps if Wikipedia entries were entered as evidence along with talk pages and all major revisions it might be treated differently.

But at that point it’s probably easier for counsel to just photocopy a page from Encyclopedia Britannica.

Cross-posted from Slaw.ca

Westheimer’s Rule

By: Law is Cool · April 23, 2009 · Filed Under Humour · Comment 

Westheimer’s Rule:
To estimate the time it takes to do a task, estimate the time you think it should take, multiply by two, and change the unit of measure to the next highest unit. Thus, we allocate two days for a one-hour task.

Federal Court grants Kimberly Rivera a judicial review

By: Law is Cool · April 21, 2009 · Filed Under Administrative, Civil Rights, Immigration Law · 3 Comments 

Canadians renew pressure on Harper government to implement votes of Parliament

TORONTO—On Tuesday afternoon the Federal Court of Canada granted Kimberly Rivera leave to appeal the decision in her Pre-Removal Risk Assessment (PRRA). The Federal Court will hear the appeal on July 8.

The War Resisters Support Campaign is renewing its call on the federal government to implement the motion that was passed by Parliament on June 3, 2008 and again on March 30, 2009.

“Regardless of Jason Kenney’s personal animosity toward those who’ve refused to fight George W. Bush’s war in Iraq, the majority of Canadians want these war resisters to stay in Canada,” said Michelle Robidoux. “Parliament has voted twice to let them stay and if Stephen Harper were committed to fairness and justice like most Canadians, he’d implement the vote of Parliament today.”

Kimberly Rivera is the first female Iraq War resister to seek refuge in Canada. Kimberly, along with her partner Mario, son Christian (7 years old) and daughter Rebecca (4 years old), fled to Canada in January 2007 when Kimberly refused redeployment. In late November 2008 Kimberly gave birth to her Canadian daughter Katie (5 months old). She served in Iraq in 2006 and experienced, firsthand, the reality of this illegal war.

“I want to stay in Canada, with my family, because the Iraq War is immoral, illegal and I couldn’t in good conscience go back,” said Kimberly Rivera. “The amount of support I’m getting from Canadians is amazing. The parents of my kids’ friends, MPs and even strangers on the street keep telling me that they can’t believe the votes in Parliament aren’t being respected.”

Last June, a public opinion poll conducted by Angus Reid Strategies found widespread approval for the House of Commons’ vote in support of war resisters. Sixty-four per cent of Canadians, and a majority of voters in every region of the country, agree that the federal government should immediately stop the deportation of Iraq War resisters and establish a program to facilitate their requests for permanent resident status.

-30-

For further information, please contact:
Michelle Robidoux, Spokesperson, War Resisters Support Campaign, 416-856-5008; or
Ken Marciniec, Communications Volunteer, War Resister Support Campaign, 416-803-6066, kmarciniec@sympatico.ca.

Social Media in Canadian Politics, and Defamation and Copyright (Episode 19)

By: Omar Ha-Redeye · April 21, 2009 · Filed Under Intellectual Property, Marketing/PR in Law, Media Law, Podcasts, Politics, Technology · 1 Comment 

Omar Ha-Redeye gave a talk on the use of social media in politics, focusing on the Canadian scene, at the Miles S. Nadal Management Centre in the Ernst & Young Tower of the Toronto Dominion Centre.

Issues of copyright, including the use of YouTube, are discussed, as well as social media alternatives to defamation actions.

Social Media And Politics in Canada (4/21/09)
View more presentations from Omar Ha-redeye.

About Windsor Law’s Law Enforcement Accountability Project (LEAP)

By: Law is Cool · April 20, 2009 · Filed Under Civil Rights, Diversity in Law, Law School · Comment 

Second post of three on projects at Windsor Law fighting racial discrimination

On February 5, 2009, Windsor Law, Canada’s first access to justice law school launched LEAP. The project is a student-led research initiative designed to provide, upon request, confidential research, policy recommendations and advice to government, public interest organizations, human rights and police agencies, Universities, and community groups across Canada on issues surrounding civilian oversight, enhancement of police accountability and trust, and anti-racial profiling measures. LEAP will develop and assess anti-racial profiling policies, training materials, and guidelines, organize conferences and other fora, and appear before Police Services Board(s) to recommend initiatives and programs.

In addition to research and policy development, LEAP will serve to enhance public education and awareness, particularly in Windsor and Essex County, about issues surrounding Ontario’s new police complaints system. During the public hearings into the Independent Police Review Act, 2007, a number of groups talked about the importance of community-based complaints intake, support and education. The importance of public education is clear from subsection 58(4) of the Police Services Act which now states:

The Independent Police Review Director shall provide publicly accessible information about the public complaints system under this Part and shall arrange for the provision of assistance to members of the public in making a complaint.

LEAP will also assist eligible individuals/community groups initiate the Independent Police Review Director’s jurisdiction to investigate systemic issues under section 57 of the Police Services Act. It will provide support for any regional or other advisory committee established for Essex County in accordance with subsection 135(24.1) of the Act. These committees will consist of representatives from community groups, police community, and any other persons appointed for the purpose of advising the Independent Police Review director on matters relating to his or her duties under subsection 58(4) (i.e. public education and assistance).

Public education and community coordination by LEAP will largely be accomplished with a website and community outreach program. The website can be found at www.uwindsor.ca/LEAP. LEAP will also operate a Blog available at http://windsorlaw-leap.blogspot.com/. The purpose of the Blog is to highlight the issues of the day, to provide context and commentary and to provide a space for thoughtful and meaningful discussion. Anyone interested can subscribe by e-mail or RSS feed and receive updates.

The Blog and website are also intended to provide a research database for lawyers, academics, activists, community members, and systemic powers involved in issues of racial profiling. It will also provide information about police accountability including how to file a complaint. The purpose of the outreach program is to engage community organizations and community members in the services provided by LEAP. Although it is not a legal clinic and will not be giving legal advice or representation, LEAP will assist in finding representation for those individuals seeking redress. The website will also provide access to a nation-wide legal directory listing of lawyers who practice in areas of police complaints and racial profiling, under criminal defense, human rights litigation, and civil actions.

LEAP is the first law school project of its kind in Canada. Given Windsor Law’s commitment to access to justice and the new police complaints process in Ontario, this is an appropriate time for the creation of LEAP. It will operate under the academic direction of Professor David M. Tanovich, a student director, student research assistants and volunteers. As a student-led initiative, LEAP will provide an opportunity for Windsor law students to engage in experiential learning about issues surrounding oversight and racial profiling. It will also provide them with an opportunity to explore and develop concrete measures in moving forward in a co-operative and constructive fashion. LEAP’s first project is to conduct a review of the anti-racial profiling training materials and directive of an Ontario Police Service pursuant to a Settlement Agreement with the Ontario Human Rights Commission.

The creation of LEAP is made possible by a grant from the Law Foundation of Ontario. To contact LEAP or further information, please send an e-mail to leap@uwindsor.ca.

Why You Should Never Talk to the Police

By: Lawrence Gridin · April 16, 2009 · Filed Under Civil Rights, Criminal Law · 40 Comments 

Moin A. Yahya, Associate Professor of Law at U. Alberta has posted a couple of interesting videos on why criminal suspects should never talk to the police.

Most experienced defence lawyers will tell you that the first words out of their mouth when they get the 3AM phone call from the jail are: “don’t say anything!”

But for some reason, criminally accused often don’t seem to get it.

The videos feature a professor of law (formerly a defence lawyer) as well as a police officer explaining why suspects would do well to heed the advice and exercise their right to remain silent.

Though the videos are reflective of American law, the principles are largely applicable here in Canada. Though we do not have a 5th Amendment, Canadians have long had a right to silence which is now constitutionally entrenched in s. 7 of the Charter (see R. v. Singh, 2007 SCC 48 for a discussion).

And now, without further ado, here is why you ought not to speak to the police:

If you have limited time, I’d suggest skipping forward to 8:20, where the professor discusses the “top 10 reasons why you should never speak to the police.”

[YouTube clips reposted from U. Alberta's Law Faculty Blog]

The Law of Self Sacrifice

By: Law is Cool · April 16, 2009 · Filed Under Humour · 1 Comment 

The Law of Self Sacrifice: When you starve with a tiger, the tiger starves last.


Lawyer Disbarred for Student Debt

By: Ryan MacIsaac · April 15, 2009 · Filed Under Ethics, Law Career, Law School · 7 Comments 

As reported by The Globe and Mail, Houston-based lawyer Frank Santulli has been stripped of his licence to practice law because of his student debt. Santulli has carried US$67,000 in outstanding loans since 1998 and failed to follow a plan to repay them:

A Texas appeals court said lawyer Frank Santulli III did not have the trustworthiness needed to represent clients because of his failure to comply with the repayment plan… The appeals court cited the possibility that “he will harm a client, obstruct administration of justice or violate the disciplinary rules.”

So two courts have now found a logical connection between Santulli’s ethical soundness and his ability to pay back massive debt. Could the same thing happen in Canada? Well these are tough times (comparatively) for lawyers entering the market, and a study four years ago found that “27 percent [of all current law students] expected to have debt of $40,000 to $70,000 and 13 percent expected to graduate with over $70,000 of debt.” With some students graduating with up to $100,000 owing, Mr. Santulli’s tale is a reminder to keep track of your debt, figure out how you’re going to repay it, and to live the frugal life as a law student.

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