RSS FeedAnother delay in the Abdelrazik case
Toronto Star reports the federal government did not issue an emergency passport to Abousfian Abdelrazik. As a result, he missed his flight today.
Let me remind our readers that, on June 4, Justice Zinn of the Federal Court ordered the Canadian government to issue an emergency passport and arrange Abdelrazik’s return to Montreal. He gave the government 15 days to make “travel arrangements.” This deadline is a week from now, on Friday, June 19.
It is unclear whether the government will comply at the last minute or will appeal. It is unclear whether the government will argue that the deadline for “travel arrangements” does not apply to “issu[ing] the applicant an emergency passport.” It is unclear whether government lawyers will make submissions next Friday arguing for an extension or delay. It is unclear how long it will all drag on.
Sometimes even an order with a deadline is not an order with a deadline.
(Text of Justice Zinn’s decision [PDF] via Slaw.)
French Court Over-Rules Three Strike Policy
This entry is meant to act as a follow-up to my February article discussing the three-strike policy, but for those who need to refresh their memories, the three-strike policy refers to a propsal supported by various industry groups under which users who continue to share copyrighted content on the web will have thier internet access cut off after two warnings. A three-strikes-you’re-out policy, if you will.
French President Nicolas Sarkozy rushed a relatively extreme law through through the French Parliament which would have seen a creation of a new agency that tracks and automatically suspends internet access to those accused of downloading copyrighted material.
The Constitutional Council of France however stated that there are several problems with this law, some of which I have already touched on in my previous article. Among the most obvious, the Constitutional Council took issue with the fact that the law removes the presumption of innocence. An alleged “pirate” of copyrighted material cannot defend herself before the internet gets cut off. Furthermore, the agency that was created by this law is extra-judicial, and hence some left-wing thinkers and politicians thought that it is wrong for it to be meting out punishment. The Council agreed, stating that having an administrative agency handle quasi-judicial issues is a breach of separation of powers under the French Constitutions.
What is most striking however is the lengths to which the council went in its decision. It declared internet access a human right by stating that “free access to public communication services online” is a part of the Universal Declaration of Human Rights (which sits in the preamble of the French Constitution). I could see this part of the decision raising several problems, most obvious of which is the fact that only 6% of the world population has internet access. It follows then that calling internet a human right is a little premature. There are some other problems with this, but they are outside the scope of this short article.
Finally, as an addendum, the article in the timesonline (UK edition) mentions that several prominent left-wing artists stood up against this decision and for the government’s law that the decision overruled, seemingly forgetting the fact that the law suggested a creation of an agency for monitoring people’s internet activity and meting out punishment without due process. It is amazing how fast some people give up on principles of liberty and justice when the application of these principles start to negatively affect them.
The law will come into force as planned, but without the provision for cutting off internet access. The cases will be forwarded to prosecutors and it will be up to them whether or not to try the people accused of downloading in a court of law.
Canadian Options for American Protectionism
Mitch Potter of the Star reported this week on the increase in protectionism in the U.S.,
A small army of Canadian diplomats fanned out across Washington today in a full-court press to “contain the contagion” of Buy America trade protectionism.
Stressing that the frantic round of lobbying was “to educate, not to threaten,” Canada’s Deputy Head of Mission Guy Saint-Jacques led Ottawa’s effort to reach out to more than 75 members of Congress with a barrage of raw statistics showing how the benefits of free trade flow both ways.
Does the US have an argument that there should be an exception in dire situations, such as the current economic recession?
To put a hold on NAFTA and focus their attention domestically in order to revive a severely damaged economy?
With their international trade obligations, the US cannot legitimately argue or act on protectionist measures without some sort of backlash internationally, especially from Canada and Mexico through NAFTA.
The US does have an obligation to abide by NAFTA (although any NAFTA country can opt out of NAFTA so long as a 6 month cancellation notice is provided to the other members)
If US senators do not back down from the “Buy America” mentality and the US acts on additional protectionist measures, to the extent Canadian trade and investment is hindered, possible courses of action for the Canadian government include:
- Chapter 11 of NAFTA (which includes article 1122 – requiring each member government to consent to settle disputes by arbitration) – is concerned with investor-state dispute settlement; where complainants (investors) can bring a case against a state in front of a tribunal.
- Chapter 19 of NAFTA – deals strictly with goods; and complainants can urge their own national governments to take action.
- WTO – that can also issue binding rulings that can issue a reward for damages or compensation to a country
Beyond democracy
Most people think they know what democracy is or, at least, they know democracy when they see it. But try calling something undemocratic, and debates break out about the definition of democracy. Of course, I am talking about mildly hard cases rather than obvious ones; about, say, allegations against a provincial government, not Kim Jon Il.
Take the jury vetting case that’s rattling editorial pages. Is it undemocratic for the Crown to use police databases for secret jury screening? It depends. On what? On your definition of democracy. Here we go again. Unless we are philosophers, we probably don’t want to debate what democracy is in this case. Perhaps, there is a more useful and easier way to understand the issue.
Two things are wrong with the kind of jury vetting that happened in Windsor and Barrie (and who knows in how many other places in Ontario). First, the Crown concealed material information from the defence. This is unfair to the accused. And if that doesn’t impress you, let me say that it’s horribly unfair. Second, the Crown pried into prospective jurors’ lives with forceps and a magnifying glass.
It is this second transgression that I’d like to focus on. Instead of pondering whether it is undemocratic, let’s use more granular and unambiguous terms. Did the government take something from those prospective jurors that they didn’t intend to part with? If yes, does this unduly acquired possession increase government’s power relative to the jurors? Theft and power balance should be more straightforward to understand than democracy.
One newspaper editorial lists some personal tidbits kept in the depths of government databases: “dislike[d] police,” “family issues,” “criminal associates,” “fraud (dismissed),” “criminal record peace bond entered,” “[teacher] accused of assaulting student,” “suicidal in 2001,” [o]ngoing neighbour dispute — neighbour shot his cat,” and “[w]itness to parent’s domestic dispute. Dad is a drinker and assaulted her mother.”
Of course, the only allowed ground of ineligibility under the Juries Act that would require a police check is a history of indictable offences. But that is not the point. The really important revelation is the extent of personal information collected by state agents during their interaction with citizens. Examples above clearly come from police notes jotted during lawful investigations. But did you know they would put it in a database?
Imagine a police visit in response to your neighbours’ complaint about noise a hundred years from now. The officers are standing outside while you’re propping the front door with your feet and talking to them. Future technology will easily enable the following without your awareness:
1. Your DNA sample will be obtained.
2. Screenshots of computer screens will be taken.
3. If anyone is using electronic devices, data input will be intercepted.
4. Your vitals, including viral/bacterial presence, will be recorded.
5. Everything will be instantly transmitted to a central database.
After all, you opened the door. No one forced you.
Shell & The Elephant In The Room
First posted on Commercial Law International on June 9, 2009.
By Charles Wanguhu
A report by the Economist Intelligence Unit indicates that protecting a firm’s reputation is the most important and difficult task facing corporations. With the development of global media and communication channels, managing reputational damage is seen as crucial with events undertaken in even the remotest areas affecting the international brand of a corporation.
For Shell the stark reality of reputational damage is all too clear. After years and years of denial and expressing its innocence of the Ogoni affair (it still maintains its innocence), Shell has decided to settle a case brought against it out of court for a sum of 15.5 Million US $. The lawsuit had accused the company of colluding with Nigeria’s former military regime over the execution of Ken Saro-Wiwa and other peaceful anti-oil protesters.
Like Nike before it Shell remains in many minds as the poster child of a lack of corporate responsibility especially in big multinationals. The Saro Wiwa case is largely sited not only in commercial classrooms but across NGO conferences worldwide. Multinationals are viewed as bulldozing their way with the help of corrupt and dictatorial regimes to fulfill their interests with complete disregard to vulnerable communities.
The perception of Shell as the irresponsible corporate persists despite the fact that it has invested millions in engaging communities in areas that it works in and has increasingly taken on human rights in its business models and stakeholder engagement strategies.
In response to the case filed Malcolm Brinded, Shell’s executive director for exploration and production, was quoted,
“While we were prepared to go to court to clear our name, we believe the right way forward is to focus on the future for Ogoni people, which is important for peace and stability in the region.”
The settlement could be seen as a magnanimous move by Shell in some quarters with some already hailing the move as groundbreaking in terms of holding corporations accountable. However when looked at broadly the settlement will be seen as a coup for Shells PR team: instead of having weeks, months or even years of a contested trial where Shells actions or lack of thereof would be once again stirred up in everyone’s mind globally, a quick settlement offers a quick escape route.
All in all $15.5Million may well be considered a bargain when factoring in legal costs, reputation risks and lost revenue. There could well have been some champagne popped at Shell HQs but am sure downstairs in the legal department the wait is on with baited breath to see whether the floodgates have been open.
Finci v. Bosnia at the European Court of Human Rights
The author expresses her own opinions and does not necessarily reflect those of MRG as an organization.
The European Court of Human Rights, up until Wednesday June 3 2009 at 9:15am, had never heard a case on its merits under the new Protocol 12 provision. Protocol 12 provides a stand alone prohibition on differential treatment leading to discrimination.
Prior to the hearing that I attended at the Grand Chamber in Strasbourg, discrimination under the European Convention on Human Rights was dealt with only if the Court found that the discrimination fell within the ambit of another Convention provision. This meant that discrimination was always addressed within the context of another right already guaranteed. At times however, when the Court found an existing violation under a separate provision, discrimination issues were often left by the wayside.
Times have changed. Seated in the front row of the circular-shaped courtroom stacked with seventeen appointed judges from seventeen of the Council of Europe member states, I watched it happen. The case, Sejdić and Finci v. Bosnia and Herzegovina (no. 27996/06 and 34836/0), deals with two prominent members of Bosnian Herzegovinan (BiH) political society. One of Roma origin and one of Jewish faith, these two men are both prohibited by the Constitution of BiH from running for the highest levels of political office because of their ethnic and religious heritage. The BiH Constitution provides that only members of the “constituent peoples” (Serbs, Croats and Bosniacs) are eligible for these political positions. This exclusionary provision was included as a means of creating a legislative power-share arrangement amongst the warring factions following the ruthless ethnic conflict of the late 1990s.
But as counsel for the claimants argued, the time had come for the Constitution of BiH to live up to its international obligations under the Convention. As a legal intern for Minority Rights Group International (MRG), a London based NGO advocating for minority and aboriginal rights around the world, I was able to get directly involved in the issues presented to the Grand Chamber. MRG helped represent Mr. Finci, along with Clive Baldwin (formerly of MRG now at Human Rights Watch) and Sheri Rosenberg of Cardozo Law School in New York.
The arguments were simple, the politics are not. The exclusion of minority groups from running for certain levels of office in BiH is direct and obvious ethnic/religious discrimination; the most nefarious and troubling type. There exists no legitimate justification for this type of discrimination according to the case law, except in the most extreme of circumstances. The BiH government lawyers presented a tangled mess of justifications ranging from political instability to the outright powerlessness of the government to enact amendments to their own Constitution (despite having done so just one month prior).
It remains to be seen if the Court makes good use of Protocol 12 and orders the government of BiH to strike the exclusionary clause. For the sake of equality, democracy and the rule of law in the troubled state – we hope it does.
Shell Decides to Settle
The case we mentioned last week against Shell in allegations of complicity for murdering activists in Nigeria will be settled to a tune of $15.5 million.
Canadian Lawyer Magazine Mentions Law is Cool
The June issue of Canadian Lawyer magazine mentions this site in connection with an article on how lawyers can use online platforms for client development.
Even law students are using the Twitter-blog combination to get their names out there and position themselves in the field. Omar Ha-Redeye, a second-year student at the University of Western Ontario law school, has garnered a lot of attention through his blog as well as through the web sites Law is Cool and Slaw, too, which he says is already benefiting him as he develops a reputation well before he graduates. “I have lots of informal mentorships with lots of lawyers practising in the field.”
Omar Ha-Redeye’s review of the piece can be found on Slaw.
The article also interviewed Erik Magraken of MacIsaac & Co, Deborah Glendinning of Osler Hoskin & Harcourt LLP, Rick Powers of the Rotman School of Management, Simone Hughes at Borden Ladner Gervais LLP, Michael Rabinovici of AR Communications Inc, Dan Michaluk and Susan Carnevale of Hicks Morley Hamilton Stewart Storie LLP, Michael Rynowecer of BTI Consulting Group Inc., and David Diamond of Diamond & Diamond Lawyers.
What Doesn’t Work in Afghanistan
And what still won’t work.
Want Some Free Legal Advice?
It’s something many lawyers complain about – being ambushed by friends and family with legal problems and expecting an instant answer. Blogging lawyers also face this dilemma from their general readership.
Both are likely to suggest that the person come to their office for a more in-depth consultation. That, and the legal problem thrown in your face is blocking the view on the gorgeous beach.
Now there’s an online site that you can divert these people to for legal advice, or to be more precise, legal information. AdviceScene is staffed by qualified lawyers and judges (yes, judges) who answer questions from the general public.
Although they are careful to refer people to lawyers when necessary as well, they can give the public a few tips on legal principles and how the system works.
As law students we have a similar challenge of not wanting to provide legal advice, and also behave overly cautious in not misrepresenting ourselves as lawyers. Nancy Kinney, founder of AdviceScene, reached out to us and we were more than happy to refer the many inquiries we get over to some qualified professionals.
But lawyers should be eager to join a project like this as well. The site is a great way for lawyers to showcase their talent and build on their client base, especially during these uncertain times. In addition to the free profile on the forum, lawyers can be listed in the site’s directory.
It’s still a young project, but one that can succeed if Canadian lawyers are interested in helping to empower the general public with legal information.
Just save your Q&A until you get back from your office, and not on the beach, or you’ll defeat the whole purpose.
Update
Terry Romaniuk, a Public Legal Education Staff Lawyer with Alberta Law Line, a sub division of Legal Aid Alberta, brought to my attention that they have been offering 4 hours of free legal advice to all qualified Albertans since 2004.
They also have have 3 former members of Alberta’s judiciary on their 27 member staff.
Cross-posted from Slaw
An exclusive interview with The Public Eye
Clare L. Pieuk shared this exclusive interview with the anonymous Canadian lawyer, The Public Eye, who writes at the Truth to Power.
Don’t Do Mandatory Drug Sentences
Context is always important in criminal law matters, drug-related crimes especially.
There are a number of reasons why people get involved in drug use and trafficking, including poverty, discrimination, mental illness, depression, chronic pain, sexual abuse, and general desperation.
Although these factors are never an excuse for criminal activity, a judge can take them into consideration in exhibiting some leniency, especially if it is a first time offence or the offender has demonstrated rehabilitation.
Bill C-15, which the House will vote in this week, will establish minimum penalties for drug-related offences by amending the Controlled Drugs and Substances Act.
Janice Tibbetts of The Gazette said,
The bill was lambasted by 13 of the 16 witnesses who appeared before the House of Commons justice committee during public hearings this spring.
Although it’s claimed that it is intended for gang-related activity, the reality is that the amendments will automatically apply to others as well, including general violent offenders, trafficking near schools, or those working with minors.
It’s not that these are commendable actions in any way, but the fact-specific nature of these crimes require review and application by the court, not blanket sentencing devoid of any analysis of the situation in which the offence took place.
The amendments are part of a broader Conservative strategy to get “tough on crime” that simply won’t work.
Perhaps they should consider getting tough on poverty and discrimination first, so they can have the credibility to even begin to address these issues.
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