The fight begins

By: Law is Cool · August 27, 2009 · Filed Under Civil Rights · Comments Off 

Ottawa mum in Kenya case

Len Edwards, the deputy minister of foreign affairs, insisted yesterday that standing up for the rights of citizens abroad was “a rule” and “a work ethic” within the department.

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Charkaoui: the name every Canadian law student knows

By: Law is Cool · August 26, 2009 · Filed Under Civil Rights, Immigration Law · Comments Off 

Six years in legal labyrinth

Charkaoui, however, is the legal star of the five. He’s won two Supreme Court challenges and, as he gradually demolished Ottawa’s case against him, managed to make the government look like an idiot.

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Ontario Ombudsman on the offensive

By: Law is Cool · August 26, 2009 · Filed Under Regulatory Law · Comments Off 

Ombudsman slams Ont. government for not keeping closer eye on colleges

Ontario’s ombudsman slammed the provincial government Tuesday for failing to keep closer tabs on publicly funded colleges in a report that found a northern Ontario school left some of its graduates unqualified for jobs.

After a months-long investigation into Cambrian College’s two-year Health Information Management program, Andre Marin concluded it was not formally recognized by the Canadian Health Information Management Association, which controls entry into the profession.

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Litigious

By: Law is Cool · August 25, 2009 · Filed Under Civil Rights, International Law · Comments Off 

Ottawa to launch Supreme Court appeal of Khadr ruling

The federal government will go to the Supreme Court of Canada to appeal a court order to bring Omar Khadr home from a U.S. military prison, according to a CBC report.

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Deadly insulation: Zonolite Lawsuit deadline Aug 31.

By: Navraj Pannu · August 24, 2009 · Filed Under Civil Procedure, Health Law · 3 Comments 

Don’t mess around with the insulation in your house. It may be Zonolite. It’s made from minerals naturally laced with asbestos, the deadliest type of asbestos known as Tremolite.

It costs money to remove it. A lot of it. If you get a jump on things and get involved with the lawsuit, depending on where your house is located (U.S. or Canada), homeowners can get some assistance. In the U.S., up to $7500 and in Canada homeowners can also get some money, some good gas money. $300 to those who can prove the presence of Zonolite and costs incurred to contain the insulation, plus an additional $600 for those who’ve taken major remedial measures like removal. And the average cost of removal is $7000 to $8000.

The company that developed Zonolite, W.R. Grace has filed for bankruptcy and the terms of settlement are outlined above. However, Aug. 31 is the deadline for any Canadian home lined with Zonolite to bring a claim, whereas homes in the U.S. can still bring a claim after Aug. 31.

http://www.yourhome.ca/homes/newsfeatures/article/685245

Passwords are the new guns

By: Pulat Yunusov · August 24, 2009 · Filed Under Civil Rights, Criminal Law, Privacy · 1 Comment 

Your password is a gun. It can’t shoot but at least the government treats it like a gun. In the UK, they made it a crime to refuse to give up your password to the government. The US long considered encryption an armament. It means encryption has military uses like weapons, infra-red goggles, plutonium, and armoured cars. When the government forces you to give up your password, it can read your data. Then you can’t hide anything from the government. It can get what it wants by demanding your password. In the UK, you can go to prison for years if you say no. In this information age, there is a real public interest in giving the government electronic investigation powers. But the UK is doing it the wrong way. They breach your right not only to privacy but also to due process. If gun rights didn’t sound so silly today, I would call the encryption rights the new gun rights.Courtesy of barjack @ Flickr

The UK government recently disclosed that two people had been convicted for refusing to give up their encryption keys. There is no word on the sentence, but the prison term for this offence can stretch to five years. The UK government has had a power to take passwords by force since October 2007. This is how it works. If the government believes it needs your password for national security, crime prevention, or for economic well-being of the UK, it can give you a section 49 notice, named after the authorizing section of the Regulation of Investigatory Powers Act. A permission of the court is not necessary for this notice. You have only “reasonable” time to comply. After that, prosecutors can charge you with a criminal offence if you “knowingly” fail to give up the password.

Don’t say you have nothing to hide because you didn’t do anything wrong. There is a good reason to hide anything you want and still be a good citizen. Governments consist of people, even democratic governments. No matter how much you feel your government represents you, there are two ways in which a government can go rogue. First, you stop being in the majority. Second, a government official figures the majority won’t notice or will forgive him for abusing only you. That’s why many modern democratic countries enshrine human rights in their constitutional law: the US, Canada, and the EU, for example. Our Charter of Rights and Freedoms lets you ask the courts for protection from rogue government officials no matter what the majority thinks. The Canadian Constitution is a curb on both the government and the will of the majority. It presumes that both of them can do bad things. No one is a saint.

There are two ways to protect yourself from the government’s or the majority’s abuse. One is the constitutional law. The other one is physical. Many, many years ago gun ownership was such a physical barrier to government abuse. In the 18th century, it was reasonable to think that if men had guns, the government would not abuse them for fear of an armed response. Today it doesn’t make sense, of course, because no armed band of neighbourhood dads will be a match for the modern state’s professional military machine. But things we want to protect with physical barriers from governments gone astray are different today. It’s not land, or crops, or not even our physical liberty or security (courts do a good job protecting those two from abuse, and if a day comes when they can’t, a higher being will be our only hope).

What we more and more often want to protect today is computer data. Our lives are online or on the hard drive. Emails, records of every website we go to, diaries, mad or creepy thoughts we share with the computer screen, political manifestos, ideas, inventions, art: it’s really anything that can change the world in a perfectly legal way but an official may want to censor, delete or use in some other way to harass you, charge you, or declare that you don’t look like your passport picture when you go abroad. Do we live in a dictatorship? Of course not. Does our government do things like that routinely? No, no, and no. Does it looks like it wants to? Not really. But like the Charter presumes that the government has the capacity for evil, every citizen must have a right to presume the same thing and to build impenetrable walls around his private life. Gun lovers in a certain country south of the border got a wrong target in their sights. They cling to the wrong tools. Guns are outdated, good-for-nothing protection of human rights. Passwords are the new guns.

The UK law wants to take your passwords from you. And like many things in the computer age, passwords are tricky. You can’t rip them from the owner’s arms and break them into pieces. You can’t even know for sure who has them or who the owner of the data they protect is. That’s a huge problem with the UK law. To overcome this problem, the law must make presumptions. First, it must presume that whoever has the hardware, owns the data on it. Unfair. Plug your computer and lots of stuff will land on your hard drive in the first five minutes without your knowledge. Second, the law must assume that whoever has the encrypted data, knows the password. Don’t ever forget passwords that the government wants. It’s may be a criminal offence in the UK. Finally and most scarily, the law must presume that every chunk of random data is encrypted. Without a password, there is no way to tell an encrypted Word document from a piece of an image file. Encryption works by making ordered data appear random. Sadly, much legitimate, unencrypted data on your hard drive looks exactly like that. Experts can even encrypt text by turning it into a jpeg of a cat.

Courtesy of marcman220 @ FlickrThere is a very thin line between enforcing the UK password law and letting cops wade through arbitrary computers under the cover of the today’s hottest flavour of the public interest. There are just too many legal fictions in this criminal offence. For this reason, I think Canadian courts would not let it stand if our Parliament passed a similar law. It’s just not necessary to force people to give up passwords to defend the absolutely legitimate public interest of safety or national security. The government can do its job without breaching human rights this much. Forcing people to surrender passwords will not minimally impair their Charter rights. The offence in the UK law is also too vague because any file with random data is potentially encrypted and subject to investigation. Giving up passwords may also be self-incriminating. No one should be punished for refusing to testify against themselves.

Let’s not kid ourselves. More and more criminals will encrypt the data used to commit crimes. But the way computer networks work makes it easy for that data to end up on an ordinary citizen’s computer. The government shouldn’t have powers to force us to give up passwords to any random heap of data that it believes to be connected to criminal activity. Passwords to our email or computer accounts will not be safe from such investigations either. Spammers bombard our computers with billions of attachments every year. There is a good chance spammers’ networks or computers are implicated in crime. That’s a real connection to our pretty Macs or drab PCs humming in our living rooms or bedrooms. And little can stop the police from suspecting that you know the password. This scenario doesn’t have to be common to cause alarm. It should cause alarm because of its potential for abuse. Making it an offence to refuse to give passwords justifies police involvement that can go beyond reasonable limits. That’s too much for our civil liberties, even in the name of fighting crime.

The UK password law is harsh and unreasonable. It can make too many law-abiding citizens targets of police interest. It will make them potential criminals when they refuse to take down barriers between their private space and the government. Someone said we increasingly lived online. If we take our affairs to the electronic realms, let’s make sure we take our civil liberties there too, even if we have nothing to hide.

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How to Get Big Money Out of Political Campaigns

By: Devin Johnston · August 24, 2009 · Filed Under Politics · Comments Off 

Liberal blogger Jeff Jedras (A BCer in Toronto) alerted me to Winnipeg Free Press article about the Conservatives’ latest plan to eliminate public financing of federal political parties. While both the article and Jeff’s reaction to it focus on the strategic implications (which parties will be harmed and which will be helped by removing public financing), I want to talk about whether such a move would make our society more or less democratic.

The rules governing donations, public financing, spending limits, and other facets of a political party’s finances were brought in during the dying days of the Chrétien government and were designed to limit the influence of corporate and union donations (which hurt rival Paul Martin) while also ensuring that personal donations are subject to a cap. It’s no coincidence that it took an outgoing Prime Minister at the end of his career to implement such a change: Liberals and Tories had thrived under the old rules, benefiting from large corporate donations as the barrier to prevent insurgent populist parties from joining their exclusive club. The Liberals, in particular, were so heavily dependent on corporate donations that they have yet to recover from the blow they dealt themselves by introducing the new rules.

Prior to the new regime, the Liberals were financially healthy. In 2003, the Liberals received $10.8-million in business donations, compared to $1.1-million for the Canadian Alliance and $1.0-million for the Progressive Conservatives. Today, the Liberals run about neck and neck with the much smaller New Democratic Party when it comes to fundraising. The Conservatives, on the other hand, have found ways to win by collecting large numbers of smaller personal donations.

On the other side of the Chrétien reforms, a new system of public campaign financing was introduced. Under this system, political parties would receive a small annual sum of money from the federal government based on the number of votes the party received in the previous election. The per-vote amount comes to $1.95, paid in quarterly installments and adjusted for inflation.

Today, Minister of State for Democratic Reform Steven Fletcher wishes to eliminate the publicly-financed portion from the Chrétien reforms. “We believe that political parties should support themselves with people who voluntarily donate to whichever party they wish to support,” he is quoted as saying in the Free Press. The last time the Conservatives attempted to remove public financing, the opposition parties agreed to coalesce to topple the government, triggering a constitutional crisis that bitterly divided Canadians. It is not clear in the article whether the Conservatives would also re-introduce corporate and union donations in their proposed reform.

Rather than focus on which parties would stand to benefit or be harmed by such a change, I want to talk about the impact on Canadians and our institutions of democracy. I have said before and I will say again that I am firmly in support of the public financing system. In fact, I would support a ban on all donations to political parties in favour of a fully public-funded model of party financing.

My reasoning comes down to a simple proposition of democratic equality: is every voter equal or do we believe that some voters should count for more than others? Our balloting laws suggest that our national values favour democratic equality; that’s why we have a one person, one vote electoral system. Yet anyone who understands how a political campaign works will understand that money, as well as votes, can substantially determine the outcome of an election. If one voter is capable of donating a large amount of money to a political party, that voter will have a much bigger effect on the outcome of the election than those who cannot afford to make donations. This is one of the major reasons that a small minority of wealthy individuals exert a greater influence on government policy than the large majority of those who have comparatively little to give.

Fletcher claims that the private donations model is preferable due to the voluntariness of donations. At first blush, it seems odd that taxpayers should be asked to foot the bill for the activities of political parties. Yet a public financing system is every bit as voluntary as private donations: I can direct where my $1.95 will go simply by exercising my right to vote. Political parties compete to earn my financial support just as they do under a private donations system. Moreover, the capacity to financially support a party is normalized among citizens: rich and poor alike have exactly $1.95 each that they can contribute to the party of their choosing. Simple. Fair. Equal. What’s not to like?

The only areas where public financing becomes a little tricky is in the case of independent candidates or new candidates. Not being members of a political party, independents can’t point to an electoral record as the basis for their public financing. The same situation occurs where a new political party has been created as has not yet run in an election. However, these issues can be ironed out. For example, independents and new parties could be allowed to raise money based on a capped donation system and then have the donors reimbursed to the extent of the candidate’s support once the election is over.

The risks of a abandoning a public financing system are very real. The United States has earned its reputation as a haven for lobbyists and special interest groups precisely because of its election financing laws. Corporations, unions, lobby groups, and non-profits all contribute directly to candidates south of the border. Although a public financing option is available for Presidential candidates, no winning candidate has ever taken the public option (which limits the candidate’s ability to raise money through donations). The result is a deeply corrupt environment in which government is handcuffed from setting good public policy. Although the vast majority of Americans support health care reform along the lines of a public option, the single biggest barrier to such reform is the Democratic caucus in the Senate which receives millions of dollars in contributions form insurance and pharmaceutical companies.

In the interests of a healthy, vibrant, and open democracy, I urge all of my readers to support public campaign financing.

Humanitarian grounds

By: Law is Cool · August 24, 2009 · Filed Under Immigration Law · Comments Off 

Family can’t keep ailing mother in Canada

“She’s old, she can’t see … Who will look after her in Poland? All the family is here,” Pindiur said in halting English. “Can you help her stay with me? Please help.”

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Advice for Incoming Mature Law Students

By: Joel Welch · August 23, 2009 · Filed Under Law School · 12 Comments 

Stop! Runaway! Hide!

Alas, students who enter law school later in life tend to be an intrepid lot. They need to be.

Law school is tough on everyone but more so on mature students who often have non-academic obligations such as family, work, and debt. And then there are surprises.

Many of your classmates will come from privileged backgrounds. Some will try to downplay it; others will flaunt it. Work during the school year is not a necessity for them. Their parents are generally lawyers, judges, bankers or business leaders.

An interesting observation made by a friend of mine is that the vast majority of law students’ parents have never been divorced or separated. An informal survey we completed supports this finding.

Whereas mature students are likely not from wealth or they would have attended law school earlier. This inequity is especially apparent in courses where the only way to find the correct answer is to call a lawyer, like your mother or father, which I experienced in Civil Procedure last spring.

However, the greatest problem for mature students is age discrimination. It is rampant in the legal profession which traditionally was and remains in many ways a tight oligarchy. The reality is that many Bay Street firms prefer to hire eager young impressionable students who are willing to work exceeding long hours without job security for their first real paycheque rather than hiring older more experienced students with established work records but who value their quality of life.

And age discrimination is not just found on Bay Street. For nearly all international internships, there are age restrictions. Canadian anti-discrimination laws do not apply abroad. The International Criminal Court, for instance, caps the maximum age at 34 despite the fact that Canada is a signatory to the Rome Statute.

But hold fast Mature Students! The fight is not lost. There are ways to compete. The first priority is to make friends. If you have a car, this will help. Most young law students are only too willing to be of assistance when asked and will be very respectful. Secondly, embrace technology and take full advantage of the social media world of web 2.0. Facebook and Twitter are your friends when used appropriately and effectively. Thirdly, try to adapt your previous work experience with a niche legal market. For example, if you are a science or engineer type, consider pursing intellectual property as an area of practice.

Lastly, keep your patience. Academia is a bubble environment not to be confused with the real world. There will be times when you will have to control your inner voice. On the other hand, academia is a nice comfortable environment. The buildings are warm, the roof does not leak, and you can have a beer at lunch.

Will law school be worth it? Absolutely. Soon you will be able to answer in the affirmative the all-too-common question “What are you, a lawyer?” Take solace in the fact that most students survive law school, even mature ones.


Joel Welch is the incoming President of the Mature Students Club at UWO Law.

Problems finding rental housing?

By: Law is Cool · August 22, 2009 · Filed Under Administrative Law · Comments Off 

Rights commission targets `blatant discrimination’ in rental-housing market

There’s obvious discrimination in rental housing, says the Ontario Human Rights Commission’s annual report released yesterday, identifying the problem as a key area that needs immediate intervention.

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Patterns

By: Law is Cool · August 22, 2009 · Filed Under Civil Rights, Constitutional Law · Comments Off 

2nd Canadian stranded in Kenya?

The network says when she tried to bring Mohammed back to Canada through Kenya three years ago, she was told the person with her was not her son because he didn’t look like his passport photo.

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Access to justice and elected judges (conclusion)

By: Pulat Yunusov · August 21, 2009 · Filed Under Legal Reform, Politics · Comments Off 

(Part 1)

Courtesy Andrzej @ Picasa Web

So anyone demanding the election of judges should understand this: there is a conflict between accountability and impartiality. It’s often hard to get the judges both to be independent and to answer to the people. For example, when the government throws a citizen to the wolves in a foreign country, an independent judge will lawfully award her damages. A judge worried about re-election may cave to his sense of the mood among the majority of taxpayers.

When judges apply straightforward law to straightforward facts, the accountability argument is especially weak. The law is an expression of the majority’s will. When legislatures pass laws, their straightforward applications are obvious. We expect judges to apply such laws almost mechanically. In these cases, judges are pretty much delegates of the legislature. They don’t make any law so they should not be accountable beyond the basic professional standards.

Courtesy of Bitpicture @ FlickrAnd don’t forget the Constitution—the super law. Its very purpose is to protect some principles against the majority’s will. In Canada, these principles include the makeup of our political system and the fundamental human rights. Judges can strike federal laws when they overstep the constitutional bounds. This is an awesome power of the judiciary. It usually uses it against the majority, so how can anyone expect it to be accountable to the majority at the same time?

When judges apply ambiguous non-constitutional rules, the accountability appears more important. The legislature, either intentionally or accidentally, leaves gaps in the law. It is up to the judiciary to choose one interpretation of the law when some new, unusual dispute finds a hole in the rules. Trial judges have another important power that may need accountability. They are free to decide what facts to take as the truth and what facts to ignore after hearing both parties. Sometimes, juries of ordinary citizens do this job, but in Canada usually judges “find facts”.

Courtesy of puck90 @ FlickrBut even when accountability is reasonable, it is practically too difficult to have. Judges are different from politicians. Majorities have a right to call the government to account on every political decision. But as we just saw, citizens can claim a right to scrutinize only some judicial rulings. This brings difficulty and uncertainty. Most people do not have legal training. Citizens will have a hard time telling decisions open to their scorn from untouchable rulings. Using more government resources to explain or filter judicial decisions will overburden a system that is already bursting at the seams.

The good news is there are alternatives to the judiciary’s direct accountability through elections. First, we can choose judges very carefully. The Parliament is free to set standards for judicial selection. Second, we can monitor the judiciary for obvious abuse. The police are free to investigate judges suspected of crimes. The Crown is free to charge them if there is enough evidence. Third, we have the appeal route when judges make errors of law. It’s a time-tested but expensive mechanism. Finally, perhaps we should have more juries to make fact-finders more representative of the general population. Unlike the US, Canada has very few jury trials. When a jury makes a verdict, it’s one fewer judge to accuse of being unaccountable to the people.

Courtesy of steakpinball @ FlickrThere are good reasons to demand election of our judges. But the reasons not to are even better. In conclusive cases and in many constitutional disputes the judges should not owe any accountability to the majority. Telling the difference could be too costly for the public, but any mistakes can undermine the administration of justice or the Constitution. Judges protect us not only from illegality but also from ourselves. It’s a huge role. Much accountability is already there through law enforcement and regulation of the bench. If that’s not enough, we could use juries more often. Beyond that, we will have to trust our judges. They have usually been doing a good job anyway.

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