RSS FeedAbdelrazik is due back in Canada on Saturday
Abdelrazik’s lawyer, Yavar Hameed, is going to Sudan to bring his client back to Canada (CBC story). A Foreign Affairs official will accompany them on the way back. Justice Zinn of Federal Court previously ordered that Abdelrazik appear in court in Montreal on July 7.
Other posts on Abdelrazik:
A reasonable person’s standard
CBC reports today that a judge in Saskatchevan acquitted a woman who gave birth in a Wal-Mart’s washroom. According to April Dawn Halkett, 22, “the birth happened very quickly and … the child did not look like he was alive.” The infant, who was found in the toilet, survived. He lives with a family. Halkett is in “regular contact” with the boy.
The charge was child abandonment. Apparently, Queen’s Bench Justice Neil Gabrielson focused on Halkett’s state of mind in reaching his decision.
He ruled out intent. The defence said at trial that “Halkett didn’t know she was pregnant that day” and that home pregnancy tests came back negative. The judge also held that “[t]he fact she turned herself in and wanted to see the baby once she knew it was alive is not consistent with someone who intended to endanger the life of a child.”
As for negligence, even if it existed, it did not reach the level of criminal offence, Justice Gabrielson held. According to him, it was reasonable to believe the baby was dead. CBC reported that “[c]ourt heard the child was blue and cold to the touch.” The judge did refer to Halkett’s actions as “negligent” and “inappropriate,” according to CBC.
So what is the standard of care in criminal law for women giving birth on Saskatchewan toilets? I guess the baby is deemed dead if it’s blue and cold to the touch. I would need to read the full reasons for a better idea, but it looks like it takes a few days for judgements to be put online in Saskatchewan.
The Charter Does Not Apply to Copyright Law
Despite the public attention that has been directed at copyright law recently, the issues surrounding the Charter right to freedom of expression have been absent from the public discourse. The matter was litigated last fall when the Supreme Court of British Columbia cited the Federal Court’s dubious Michelin decision to summarily cast aside any Charter defences to copyright infringement. I’m talking about the decision in Canwest Mediaworks Publications v. Horizon Publications, 2008 BCSC 1609, and I am surprised that it drew so little public attention.
In this case, political activists created and distributed free of charge a satire of the Vancouver Sun newspaper in an attempt to draw attention to the alleged editorial bias of the Sun’s parent company, Canwest Mediaworks. Canwest is responsible for 80% of the newspapers sold in B.C., and the freedom of expression issues are fairly obvious with respect to truth-seeking and the marketplace for ideas that a democratic society requires to function properly. Meanwhile, from a policy standpoint, it is difficult to see any benefits that accrue to society by protecting Canwest’s copyright interests in this context, let alone any benefits that would trump the value of the Charter. However the Court saw no merit in the Charter issues.
The decision was appealed but Canwest decided not to pursue the matter. While some civil liberty supporters cheered this outcome, the fact that the Canwest decision was not reevaluated means that both Michelin and Canwest represent the current state of copyright law in Canada with respect to the Charter.
Canadian legal scholars have yet to weigh in on Canwest, but they have been unanimous in their criticism of Michelin. According to Vaver, “the … view in the Michelin case, with its disturbing assertion that the freedom of expression guarantee in the Charter of Rights and Freedoms can never override copyright ‘property’ should be rejected.” (David Vaver, Copyright Law ( Toronto: Irwin Law, 2000) at 195). Similar sentiments have been expressed by David Fewer, Jane Baley and Karen Lowe.
I respectfully agree. Copyright law is necessary to facilitate a business model that is widely accepted in our society but it affects the ability of various parties to communicate and is therefore likely to affect Charter rights from time to time. How absurd to suggest that copyright law is immune to Charter scrutiny.
Yet, there are two concurring cases as precedents, and typically the loser pays the winner’s costs, so it is unlikely that these decisions will be overruled in the foreseeable future.
Those who are interested are encouraged to read the following:
David Fewer, “ Constitutionalizing Copyright: Freedom of Expression and the Limits of Copyright in Canada” (1997) 55 U. Toronto Fac. L. Rev. 175.
Jane Bailey “Deflating the Michelin Man: Protecting Users’ Rights in the Canadian Copyright Reform Process” in Michael Geist, Ed., In The Public Interest: The Future of Canadian Copyright Law (Toronto, Irwin Law 2005).
Karen Lowe “Shushing The New Aesthetic Vocabulary: Appropriation Art Under the Canadian Copyright Regime” (2008) 17 Dalhousie J. Leg. Stud. 99.
The Michelin case makes for interesting reading as well: Compagnie Générale des Établissements Michelin-Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (T.D.) (1996), [1997] 2 F.C. 306.
NOTE: Shortly after publishing this note I learned that the appeal was not dropped. Bloggers beware: there are a lot of news articles on-line and many are not current. Some have the facts wrong. It is easy to be misinformed. As well, due to a computer glitch, the original post was deleted so this post is a ‘resurrection’ of sorts. Unfortunately the insightful comments by Pulat Yunusov and David Fewer were lost in the process. I am very disappointed … but life goes on.
FBHive Can Access Your Facebook Info
Despite all the warnings about using privacy settings we’ve been hearing about, here comes a stark revelation: your Facebook account can be hacked anyways.
FBHive, a new blog all about Facebook, premiered today with a revelation that they can access certain profile information, even if the user has made it private.
Robin Wauters of TechCrunch confirmed that they were indeed able to access his private information.
FBHive claim that it has taken over 15 days for Facebook to fix they security hole. And they promise to give their secrets on how they do it within the next few days.
Yet another reminder that no matter how secure we think online data is, there are always ways to get around it. And for some “computer terrorists,” it will be as simple as a walk in the park.
Update
How they did it:
Facebook Basic Information Exploit from FBHive on Vimeo.
Reformed “Computer Terrorist” Kevin Mitnick Reflects on his Crime and Punishment
Elinor Mills of CNET.com has conducted an interesting interview with the famous hacker, Kevin Mitnick.
Beginning at 12-years of age, Mitnick primarily used social engineering to manipulate and gain unauthorized access to telecommunications networks; for example, to evade long-distance charges or access the speaker systems of fast food restaurants. In the late 70s, as his intellectual curiosity grew and telecommunications became digital, Mitnick began cracking computer networks and pursuing larger “trophies”.
In 1988, he was convicted for this activity and sentenced to 12 months in prison. During the subsequent period of supervised release, Mitnick hacked into Pacific Bell voice mail computers–then evaded the FBI for two and a half years.
Though Mitnick gained access to these networks and often stole code, he claims he never profited from these activities or caused damage to his victims beyond their wasted time and frustration. Nevertheless, at the time of his arrest, he was the most wanted computer criminal in United States history.
In 1999, Mitnick confessed to various counts, including wire and computer fraud, as part of a plea agreement. He was sentenced to 46 months in prison in addition to 22 months for violating the terms of his 1989 supervised release.
In the interview, Mitnick had this to say about his crime and punishment:
I served five years, and I ended up in solitary confinement for a year because a federal prosecutor told the judge that if I got to a phone I could connect to NORAD (North American Aerospace Command) and somehow launch an ICBM (Intercontinental Ballistic Missile). So the judge, reflecting on the movie War Games, put me in solitary confinement. I think it was a strategy they used to get me to plead out or cooperate. I was held for four and a half years without a trial. I spent a lot of time focused on the defense and reading cases and serving as assistant to my attorney. At the end of the day I realized justice is economic; unless you have enough money to properly mount an effective defense you always lose.
I wanted to admit that I was hacking, but the intention and the purpose of it wasn’t fraud because to commit a fraud you have to convert property to your own use and benefit, to profit. In my case that was lacking. I was doing it for the trophy. I was cloning my cell phone to random subscribers and dialing into computers from the cell phone. The purpose wasn’t to make free calls; it was to make it more difficult for the government to track me. They claimed all my hacking into those companies was a huge elaborate fraud and that I caused $300 million of damage. They said the value of property I copied, the R&D development cost, was $300 million. The government tried to use the old (definition of) loss for tangible property. If I copied that code and they no longer had use of it, it would be a $300 million loss or whatever.
They told my attorney that if I didn’t cooperate and plead out, not only would they take me to trial in Los Angeles, but they would put me in a revolving door of trials and put me on a bus and take me from federal jurisdiction to federal jurisdiction. So I signed the deal and admitted causing between a $5 million and $10 million loss. I signed it not believing it. I signed it to get out. I really don’t believe to this day that my actions caused that amount of loss, because none of the victim companies lost use of their code, they never claimed any losses due to my activities. Sure there were losses, maybe in the thousands of dollars, for their time to investigate who hacked into their systems and to secure them. Those are the real losses. But I was the example for the federal government, so they needed to put me away for a long time. That’s why I was very angry and bitter against the government at the time, because I wasn’t being punished for what I did. I was being punished for what I represented at the time. I have no qualms about being punished for what I did. The punishment should fit the crime.
Since his release, Mitnick has founded a successful security consulting company, published two computer security books, and lectured on the subject around the world.
Read the interview here.
How to be a Good Lawyer
Professor Morton is a prof of mine, a down-to-earth, approachable professor and I think it’s impossible not to agree with his article: “The duty to represent even the unpleasant client”
I’d just like to add that perhaps he’s directing his article towards those “reputable,” established, and well-known lawyers as equally as towards new lawyers.
Yes, everyone is entitled to fair justice, should receive representation, as Professor Morton cited,
“It not infrequently happens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless cases turn out after a full hearing to be in the right.”
However, even when you have two potential litigation clients, one with a valid claim, the other trivial, and both able to satisfy a lawyer’s financial retainer requirements, a new lawyer trying to make it out on his own – who has experience – but wants to make a name for himself compared to a “reputable lawyer” will have a different mindset when approached by the potential client, no?
Obviously, both would like to win their client’s case and ensure justice is served, but would a new lawyer trying to make it out on his own want to spend as much time on a “Sure winner” than a “marginal” case? Would a reputable lawyer be able to “afford” more time on a marginal case?
Yes, I agree everyone has to start somewhere, and at the same time not bring the profession of law into disrepute. But when a new lawyer on his or her own has school loans/debts to repay and is attempting to establish a reputation I think ultimately the altruistic representation of a client by a lawyer will suffer, maybe a little, or maybe not.
The US has a population of 300 million, with a number of lawyers that represent that population. This dwarfs the representation of the 33 million Canadians by the number of lawyers that the 25 or so law schools in Canada spit out. As a Canadian in a US law school, the competition in US law schools is furious, in addition to competition amongst established lawyers for the “almighty dollar” is just as if not more fierce. Maybe that’s what helps form this view.
Maybe the “ambulance chasers” or for those who just want to establish themselves (choosing or devoting more time towards sure-winners than marginal cases), may not be as prevalent in Canada as I think I see in the US.
In the end, as lawyer’s we’re supposed to stick up for society, represent society, not cheat society. I agree with Professor Morton, but everything is susceptible to nuances. Perhaps I am stating the obvious and being a realist, but yes, ideally lawyers shouldn’t put the “almighty dollar” to the forefront, because it’s much more difficult to curb such practices than you think – Justice Archibald.
Movies about law 1
I watched The People vs. Larry Flynt for the first time yesterday. Definitely, 4 out of 5. Look for scenes at trials and in the US Supreme Court. The film raises interesting points about evidence and procedure as well as profound issues of freedom of expression. Don’t forget to observe the details of client-lawyer relationship between Flynt and Isaacman, especially the conflict between the lawyer’s own views and his duty to the client.
Michael Moore’s Plea
No, he hasn’t been charged with anything.
But here’s a trailer for his upcoming new movie, which focuses on the bailout.
Podcast: Corporate Social Responsibility & Rural BC Law Jobs (Episode 22)
Today’s podcast features two interviews. First, part 1 of 2 with Jason MacLean on corporate social responsibility (CSR)
Jason MacLean on Corporate Social Responsibility
Jason MacLean is an Associate in the Litigation Group at the Toronto office of Osler, Hoskin & Harcout LLP. He is one of the contributors to the new book Corporate Social Responsibility – A Legal Analysis. He also writes for CSR Law, a new blog covering developments in corporate social responsibility law.
Today’s show features Part One of Omar Ha-Redeye’s two-part interview with MacLean. He discusses the precautionary principle, environmental stewardship, and some of the arguments against CSR. MacLean argues that embracing the precautionary principle can create a competitive advantage for corporations. In the long run, he believes that corporations that embrace environmental stewardship will succeed in the market, whereas companies that fail to disclose environmental risks to employees, shareholders, and customers will run into business and legal challenges.
Next week, we will feature Part Two of the interview, in which MacLean discusses the evolution from book to blog as well as impact of the Supreme Court’s decision in BCE Inc. v. 1976 Debentureholders, 2008 SCC 69.
Michael Litchfield on Access to Lawyers in Rural British Columbia
Also on today’s show, we speak with Michael Litchfield from the Canadian Bar Association, BC Branch about the Rural Education and Access to Lawyers (REAL) Initiative. This initiative is taking a multi-faceted approach to promoting access to legal services in rural communities using techniques including:
- funding summer student placements in rural BC;
- providing financial and promotional support for marketing of regions to law students and lawyers;
- providing support for students interested in practicing in small communities; and
- providing support for law firms and practitioners with recruitment, hiring, and retention.
So far, the REAL Initiative has helped to create and fill 11 summer student positions in rural BC.
The Law of Common Sense
The Law of Common Sense: Never accept a drink from a urologist.
CSIS Doesn’t Protect Canadians
CSIS doesn’t protect Canadians, it helps get them abandoned in foreign countries.
The Toronto Star revealed today that Justice Zinn’s judgment over CSIS complicity in Abousfian Abdelrazik being stranded in Sudan will not be challenged. The agency continues to deny any involvement.
That would just be the start of what should be an entire overhaul for an agency that has consistently and repeatedly engaged in misinformation, racial and religious profiling, and harassment of minority communities in Canada.
Worst of all, it lies to Canada with impunity.
Kenney’s Canada: Who’s in, who’s out and who is getting kicked out
By Krystalline Kraus
Published on rabble.ca (http://www.rabble.ca), reproduced here on author’s request
Canadian Prime Minister Stephen Harper and Citizenship and Immigration Minister Jason Kenney have the political power to decide who they want to let into Canada and who they want to keep out.
