RSS FeedPermanent residence granted after 4 years in church sanctuary
Sanctuary gives way to freedom
Andrew Chung writes:
The federal government decided to grant Belaouni permanent residency status, made official on Oct. 22, despite ordering him deported in late 2005, when his application to stay on humanitarian and compassionate grounds was rejected. His application for refugee status had been turned down the year prior.
Interogation Tricks You Should Never Fall For
As a sequel to Why You Should Never Talk to the Police, we bring you these interrogation tricks from HBO’s The Wire,
Swartz v. Does: American and Canadian approaches to anonymity in internet defamation cases
A recent case illustrates that American jurisprudence is increasingly coalescing around a uniform approach to determine whether a plaintiff may compel the disclosure of an anonymous defendant’s identity in internet defamation cases. As discussed below, the Canadian experience has been different.
In Swartz v. Does (“Swartz”) (see: judgment) a Tennessee state court held that plaintiffs were entitled to discover the identity of an anonymous blogger that published allegedly defamatory statements about them. The case arose when the plaintiffs subpoenaed Google, the parent company of the blogging service used by the anonymous defendants (see: news article).
The decision is notable for Justice Brothers’ survey of the various standards previously applied by American courts and his ultimate application of the standard most protective of internet anonymity. This standard, established in Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. App. Div. 2001) (the “Dendrite Standard”) and commonly but perhaps misleadingly known as the “prima facie” standard, requires a plaintiff to meet several requirements. One of these requires the plaintiff to make a “substantial legal and factual showing” that the defamation claim has merit before a court will compel the disclosure of an anonymous defendant’s identity.
Justice Brothers considered this requirement of the Dendrite Standard and concluded that the plaintiffs had made a substantial legal and factual showing on each of the three elements of a defamation claim under Tennessee law. Interestingly, Justice Brothers proceeded to offer guidance for future litigants by providing a detailed description of how the plaintiffs met the requirement, which does not appear to be onerous:
Plaintiffs submitted and displayed several copies of the blog posts in question, and testified that the statements were publicly available for several months. Plaintiffs testified that the [allegedly defamatory allegations] are all false. Plaintiffs also testified that they experienced actual damages from the allegedly defamatory statements, including loss of business, harm to their reputations, emotional distress, and the costs of having to hire a security expert inspect their home [sic].
Swartz is yet another American case that has followed the increasingly prevalent Dendrite standard. Unfortunately, Canadian jurisprudence has yet to begin coalescing to the same extent. The scarce Canadian law on this issue, most of which comes from Ontario, indicates that plaintiffs have two ways to compel online service providers to reveal the identities of anonymous defendants:
- by seeking pre-action discovery by way of an equitable bill of discovery known as a Norwich Order; or
- by seeking pre-action discovery or production from the online service provider by bringing a motion under the applicable rules of civil procedure.
The requirements of each approach vary substantially. While the Norwich Order approach requires plaintiffs to establish only a bona fide case of defamation (see York University v. Bell Canada Enterprises, [2009] O.J. No. 3689 (S.C.J.) (see: previous post) and BMG Canada Inc. v. John Doe, [2004] 3 F.C.R. 241 (C.A.)), the alternate approach has generated different requirements depending on the rules of civil procedure under which the plaintiff brought their motion. In an early case, the court required the plaintiff to establish a prima facie case of defamation similar to that required under the Dendrite standard (Irwin Toy Ltd. v. Joe Doe, 2000] O.J. No. 3318 (S.C.J.)). Yet, in a more recent and controversial case, the court held that the plaintiff had no obligation to establish a prima facie or even bona fide case because the rules of civil procedure required disclosure to be automatic upon the issuance of a statement of claim (Warman v. Wilkins-Fournier, [2009] O.J. No. 1305 (S.C.J.)). Although these cases are distinguishable on the basis of differences in the applicable rules of civil procedure, more uniformity is needed to ensure that courts consistently strike an appropriate balance between privacy and reputational interests.
Also posted on Defamation Law Blog
Secret evidence
Lifting the cover on Canada’s spy files
Michelle Shephard writes for the Toronto Star:
But beyond answering questions that have lingered for years about Khadr’s case, John’s testimony was a remarkable example of how the Canadian Security Intelligence Service is being forced into public.
“There really has been a paradigm shift in what is being disclosed and what’s not,” noted Toronto lawyer Lorne Waldman, who represented Maher Arar during a multi-million dollar federal inquiry.
Police Were Instigators in Montebello – Report Holds
When the North American Summit Leaders’ Summit was held in Montebello, Quebec in August 2007, something came to the attention of Dave Coles, President of the Communications, Energy and Paperworkers Union.
Amidst a seemingly peaceful protest, Coles noticed that three bandana-clad “burly” men were attempting to incite the protestors to become violent toward riot police.
As with many of these situations at the national level, the R.C.M.P. has jurisdiction or control if you will over security, however, then Minister of Public Safety Stockwell Day indicated that security on the front line and directed toward controlling the protesters was the responsibility of Quebec’s provincial police agency, the Sureté du Québec. That in my opinion, is fairly normal.
What Mr. Coles charged is that the three burly men were actually police officers. This seems to go against the rationale to what the police were there to do. To quell violence not insight it. After concluding in quickie internal investigation there was no wrongdoing, the Comité à la déontologie policière said yesterday in a media release there was grounds to believe wrongdoing occurred on the part of the officers, and has now summoned them to a hearing on the matter.
Now the committee, which has the power to issue binding rulings on the Quebec police, will hold public hearings on the issue within the next six months. The three officers – Jean-François Boucher, Joey Laflamme and Patrick Tremblay – are required to appear – The Globe and Mail reports.
Aside from the obvious disciplinary sanctions that these officers now potentially face. Mr. Coles and many like him are asking the tough question of who directed these officers to take such action? Accountability needs to be had in order to restore faith in the public’s perception of how the police handle these situations.
Like one of my other articles, (also found here), I have the fortunate ability to break this down as a former police officer, who was also part of the York Regional Police’s Public Order Unit. Just to qualify my skills, I receive basic Public Order training at Downsview park with the Toronto Police Service’s Public Order Unit, and did requalification training at C.F.B. Meaford with a number of Ontario police agencies. I was also deployed to Caledonia at the height of the tension between the First Nations people and local residents.
In my training we were taught how to deal with such situations and my superiors would have never instructed officers to take up such actions. Just as the protestors arms themselves with video cameras and other “weapons” of technology, so do the police. In such public order situations, there could be plainclothes officers in the crowd monitoring situations, recording for evidentiary purposes, and watching certain groups known to police to cause problems. Nothing wrong with that.
But the thought that the police were the ones instigating the problems is quite saddening. I hope justice is swift, and those responsible, whether it is the Sûreté du Québec, R.C.M.P., or politicians are able to dealt with appropriately, especially after watching the YouTube video:
And hearing all of the evidence the Committee has ruled in the following manner:
ALLOWS the application for review in respect of the three respondent
sergeants on the allegations stated by the Commissioner in his decision:
Was disrespectful or impolite towards any person (section 5 of the Code);
Used obscene, blasphemous or abusive language (section 5 of the Code);
8 Item 4.10 of the Commissioner’s investigation report.Failed to respect the authority of the law by inciting persons to violence (section 7 of the Code);
Refused to produce identification when a person asked him to do so (section 6 of the Code);
Furthermore, now that the Committee has overruled the Commissioner, the door has probably been opened for a criminal investigation in relation to assault charges against one officer, and potentially this:
Unlawful Assembly:
63. (1) An unlawful assembly is an assem- bly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on rea- sonable grounds, that they
(a) will disturb the peace tumultuously; or
(b) will by that assembly needlessly and without reasonable cause provoke other per- sons to disturb the peace tumultuously.
(2) Persons who are lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in a man- ner that would have made the assembly unlaw- ful if they had assembled in that manner for that purpose.
Like all interesting developing stories, we shall see where this leads us.
See a Drug Deal on Google Street View – Well, Maybe
Simon Fodden predicted that the privacy complaints would begin once Google Maps Street View was launched. The maps have proven popular in Canada, with over 150 million views of other countries by Canadians in 2009 alone.
Google recognizes privacy concerns, but claims to address them through their collection and processing approach:
- public access images, no different than what would normally be seen walking down the street
- not in real time, so images can be months old before going live
- blurring of license plates and faces
- allowing removal requests, through the “Report a Problem” option in the bottom-left of all images
Assistant Privacy Commissioner Elizabeth Denham raised these concerns Thursday to MPs in the House of Commons privacy and ethics committee, pointing out that at times Colonel Sanders‘ face was blurred in ads, while people were not.
She said that Google’s collection may fall under an exception of the Personal Information Protection and Electronic Documents Act, 2000, c. 5 (PIPEDA,),
Collection without knowledge or consent
7. (1) …an organization may collect personal information without the knowledge or consent of the individual only if
…
(c) the collection is solely for journalistic, artistic or literary purposes;
However, she notes that if other providers use the same argument to start collecting street-level information under the same exception, they might try to disseminate it without blurring technology, thereby posing a risk to children by predators.
Jonathan Lister of Google Canada claimed that they offer more privacy controls than mainstream-media,
If I’m inadvertently captured on the front page of a newspaper, the same way I might be inadvertently captured on Street View, I don’t have the recourse that Google offers if I’m captured in a pan shot on broadcast news. I don’t have my image blurred and I don’t have the ability to have that image taken down. So I think Google is really trying to lead by example and set the industry standard on privacy-protection practice.
Minutes from the meeting are not yet available, nor are documents from the Jan. 26, 2009 study on the implications of camera surveillance such as Google. Maybe they’re considered too private.
Meanwhile, some Canadians are wondering how many bloopers are in the new Street View maps. It’s become a popular past-time in America, where the maps were launched May 2007.
The only thing I’ve been able to find so far is Robert Jago of A Dime A Dozen Blog claiming this shot of East Hastings Street in Vancouver is a drug deal caught on camera. I have to squint really hard to see it, and use a bit of my imagination, but if that’s the extent of privacy concerns with Google Street View, frankly, I’m not that concerned.
Privacy and .ca
For years, if you registered a .ca domain, anyone could see your name, address and email in online “whois” databases. In 2008, the Canadian Internet Registration Authority (CIRA) restricted access to this information. Internet law guru Michael Geist hailed early drafts of the CIRA’s new whois policy as “a model for domain name registries around the world”. Still, in a last-minute change, CIRA allowed access to a domain owner’s identity for parties claiming IP infringement by the domain name. In response to Professor Geist’s accusation of a “stunning setback for privacy”, CIRA’s President and CEO Byron Holland called the new policy “thoughtful” and “effective” with the “best privacy protection in the world”.
Does CIRA’s whois policy strike the right balance between registrants’ privacy and IP owners’ rights?
Yes, CIRA cites the need to fight cybersquatting in defense of its disclosure policy. Registering domains for the sole purpose of reselling at a premium is a common problem on the internet. Few short domain names are now openly available for legitimate purposes. A more sinister extension of cybersquatting is phishing – posing as a third party to obtain confidential information such as passwords.
Yes, CIRA’s disclosure policy also protects IP rights. It simplifies contacting alleged infringers and helps resolve IP disputes outside of court. The opportunities for IP infringement in domain names alone are huge due to the nature of the internet. Any alternative dispute resolution can help relieve a potentially large burden on the justice system.
But there are flaws in CIRA’s whois policy.
Disclosure without consent impairs registrants’ privacy. It is also probably unlawful. CIRA’s disclosure policy does not meet the conditions in s. 7(3) of the Personal Information Protection and Electronic Documents Act, which contains the exhaustive list of circumstances when disclosure without consent is allowed in the private sector.
CIRA’s policy also undermines the freedom of speech. Whistleblowers or political activists will lose their anonymity unduly if they register a domain name referring to the organization they criticize. Instead of having to go through court, claimants need only show CIRA reasonable belief of IP infringement to obtain the registrant’s identity.
Registrants’ privacy and freedom of speech suffer irrevocably, while IP owners retain their rights and avenues for pursuing infringers regardless of CIRA’s cooperation. The barrier to obtain personal information is low. CIRA does not specify how or whether it considers merits of infringement claims. Frivolous claims that wouldn’t make it to courtroom can survive under CIRA’s laxer procedures. Citing the need to contact registrants is unreasonable because CIRA already passes electronic messages to registrants via its website. It should also be able to send regular mail on behalf and at the expense of any IP claimants.
CIRA owes a statutory duty to registrants who entrust it with their personal information. Among all the options to facilitate resolution of IP disputes, CIRA chose one that seems unbalanced and not in accord with the privacy legislation.
Citizen’s arrest
It’s one of the cases that gets ordinary people all riled up. A chronic criminal, Anthony Bennett, who some say stole from Chinatown stores for years finally got caught. A hard-working store owner, Mr. Chen, aided by two associates, witnessed a theft, confronted the culprit an hour later and then caught him, tied his hands, put him in a truck and called the police. And what do the cops end up doing? They charge Mr. Chen with assault, kidnapping, unlawful confinement, and carrying concealed weapons. The last charge is for having a box cutter.
But the cops had a lawful reason to arrest Mr. Chen. If citizens see crime in progress on their property, they can catch criminals. But Mr. Chen went after Mr. Bennett an hour after the theft. Mr. Chen and his two associates chased Mr. Bennett. It’s not clear where they caught up with him and locked him in a truck, but some running down the street was involved. Some punching is alleged. Apparently, Mr. Chen exceeded his powers of citizen’s arrest. That’s why his lawyer, Peter Lindsay, wants to challenge Canada’s citizen’s arrest laws.
Mr. Lindsay says the law “should be changed to allow private citizens to arrest people they suspect committed or will commit a crime.” So he wants citizens to have the power to arrest not only for crimes they see but also for crimes they suspect happened or even will happen.
Mr. Lindsay’s idea is unbalanced. Private citizens aren’t trained to recognize crimes or criminals. They aren’t trained safe arrest techniques. They don’t have proper custody space. Untrained people can harm someone. We can end up with even more arrests of innocent people than we have now. Kidnappers may have an easier time imitating citizen’s arrests. And the vigilantism that Mr. Lindsay’s idea can unleash is scary. The risks are just too high. And slow police response and endemic theft do not outweigh them.
The existing citizen’s arrest powers are sufficient. The crimes we are talking about are usually minor, and we don’t want ordinary people to arrest serious criminals anyway. Besides, other means exist to deter minor crime. The Chinatown business improvement area may find it less expensive to hire security guards (as it did before) than deal with civil claims by innocent arrest victims. And if the thief is really persistent, why not stake him out and do a proper citizen’s arrest on your property? All the video cameras will help with evidence if the police question the arrest’s legality.
Although Mr. Chen and other store owners in the area deserve our sympathy, Mr. Lindsay’s idea goes too far. The Crown should exercise its discretion and drop the charges against Mr. Chen. He has already paid a price for whatever indiscretion he committed. This should be a lesson for the police, for the business improvement area, and for the social services. But this story should not be a reason to expand citizen’s arrest powers. The benefits will not justify the risks.
David Chen: Vigilante or Local Hero?
On May 23, when Anthony Bennett was captured on video camera stealing $60 worth of plants from David Chen’s, Mr. Chen’s Lucky Moose Market located in Toronto, it set off a chain of events that may lead to a reform of what is known as “citizen’s arrest” rights here in Canada. Ironically, it was Chen who was also arrested by the Toronto Police Service, and charges are being sought by the Ministry of the Attorney General and the Toronto Crown’s office. However, they are seeking a quick resolution and have offered Chen a guilty plea. Refusing Crown offer of a guilty plea, Chen is hedging his bets on a legal challenge. The Globe & Mailarticle spells out much of the previous facts.
Facts:
Bennett stole the plants from the market then rode off on his bicycle. About an hour later he returned to the market, for whatever reason. Mr. Chen and two employees recognized the culprit and gave chase. After subduing him and effecting a citizen’s arrest (which is lawful under s. 494(1) of the Criminal Code of Canada), they tied him up placing Bennett in a truck to await the arrival of the police.
As a result, Bennett AND Chen were arrested. Bennett for two counts of theft under $5000, and Chen for forcible confinement, weapons offences, and assault. Bennett has subsequently pleaded guilty to the theft charges, and received a sentence of 30 days. When I first read this, it immediately became apparent to me that Bennett either has a long criminal history or there are aggravating circumstances surrounding his sentence. This is an EXTREMELY long sentence for a simple theft under charge. (After doing some digging… turns out he does have a long criminal record) Just to put it in perspective. But I digress…
The Crown seems to be adamant to set an example of Chen for whatever reason, and they have even secured Bennett as a witness against Chen. However, Chen and his lawyer Peter Lindsay are playing hardball, and not going the easy way out by accepting a deal. Good for you!
That offer is “insulting,” Mr. Lindsay said, and he flat-out refused it despite warnings that the Crown will ask for a jail sentence for Mr. Chen if the offer is turned down.
Analysis:
This, for me anyway, is where it becomes interesting. Lindsay has said that they plan on not only fighting the charges, but they are going challenge s. 494 of the Code:
Mr. Lindsay plans to challenge Canada’s citizen’s arrest laws. Right now, a property owner or someone acting on a property owner’s behalf can arrest someone without a warrant if they see that person committing a crime on their property.
That definition is too narrow to allow people to protect their property, Mr. Lindsay says: He argues it should be changed to allow private citizens to arrest people they suspect committed or will commit a crime.
Section 494 of the Criminal Code of Canada reads as this:
494. (1) Any one may arrest without war- rant
(a) a person whom he finds committing an indictable offence; or
(b) a person who, on reasonable grounds, he believes
(i) has committed a criminal offence, and
(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.
(2) Any one who is
(a) the owner or a person in lawful posses- sion of property, or
(b) a person authorized by the owner or by a person in lawful possession of property,
may arrest without warrant a person whom he finds committing a criminal offence on or in re- lation to that property.
(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.
(I added the bold)
Clearly, since he would have witnessed Bennett’s theft of his own property from his store, the arrest is justified under s. 494(1)(b)(i). I think it is here where the debate begins and continues to Chen’s actions after that raise the questions.
What is the legal definition of freshly pursued? It is not listed in s. 2. I did find a number of US definitions, however, they were all related to peace officers and not citizens. I think the bulk of Lindsay’s argument is going to hinge on the lack of definition of “freshly pursued.” Will the courts interpret his actions as freshly pursuing upon seeing somebody whom he believed on reasonable grounds had committed an indictable offence?
Had Bennett not come back to the store, this would all have been avoided, but perhaps Chen gave chase because he thoughts Bennett was about to commit another offence. If it turns out in court that was the case, then the arrest would be deemed illegal because only peace officers have the ability to arrest on reasonable grounds that somebody is about to commit an indictable office:
495. (1) A peace officer may arrest without warrant
(a) a person who has committed an indicta- ble offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
From the interpretation I can gain from the quote in the Globe, it appears that Lindsay may also have issue with 494(3). Now the definition of “forthwith” is not explicitly stated in the Criminal Code, however, in my experiences it means as soon as practicable. The closest thing that I could find in the Code is this example:
254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by de- mand, require the person to comply with para- graph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:
(a) to perform forthwith physical coordina- tion tests prescribed by regulation to enable the peace officer to determine whether a de- mand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will ena- ble a proper analysis to be made by means of an approved screening device and, if neces- sary, to accompany the peace officer for that purpose.
(Once again I added the bold)
This section is in relation to a testing for the presence of alcohol in a person, more commonly known as taking a suspect in so they can blow into the breathalyzer.
Now the article does not say much about the length of time between Mr. Chen’s arrest of Bennett and his contact of the police and their arrival, i.e. his “forthwith-ness”. The only thing it mentions is that Bennett was bound and placed in the back of a truck. One could only assume that Chen did this to ensure his detention while ensuring his own physical safety, since Bennett had escaped before and is known locally as a thief. Bennett has been known to be violent in the past.
The actions of Chen and his employees immediately after the arrest will undoubtedly be the crux on which this case falls. Should it be argued that “forthwith” has a broad scope and that Chen was justified in his detention of Bennett, he will in all likelihood be found not guilty. However, if the court finds that a more narrow definition of “forthwith” is required, he may be found guilty.
Stay tuned, I know I’ll be following this one as it plays out. Either way, this case has the potential to break some new legal ground here in Canada.
The polygamy battle goes on
B.C. pops the question: Is polygamy a crime?
Dirk Meissner writes:
Canadians and the justice system need clarity on whether polygamy is a crime, British Columbia’s attorney general said Thursday in announcing he will ask the B.C. Supreme Court for an opinion on the federal law barring multiple marriage.
Mike de Jong said the government has decided to seek the opinion rather than appeal last month’s court ruling that quashed polygamy charges against the leaders of a controversial religious sect in southeastern B.C.
The feds will also intervene. Their position is that polygamy is a crime in this country.
Journalistic privilege
Paper fights to shield its source
Tonda MacCharles writes for the Toronto Star:
The constitutional guarantee of a free press is “meaningless” if it does not protect journalists from being forced to reveal the identity of confidential sources, media lawyers argued Wednesday before the Supreme Court of Canada.
In the second case this year revolving around the role confidential sources play in freedom of the press, lawyers for The Globe and Mail, a group of Quebec newspapers, the Fédération des journalistes professionelles du Québec, and the Canadian Civil Liberties Association urged judges to shield the identity of a source key to the reporting of the sponsorship scandal in Quebec.
If the client-lawyer relationship is privileged, why shouldn’t the journalist-source relationship be privileged too?
Why did Polanski flee?
Polanski may choose to go to U.S.
Elizabeth Pineau writes:
Film director Roman Polanski, now in Swiss detention, may decide to face justice in the United States, where he is wanted on a 1977 sex charge, to avoid lengthy extradition procedures, one of his lawyers said today.
The article says Polanski feared a 50-year sentence. If you had reasons to believe you’d get 50 years in prison for something like what he did, would you run from the law?
