RSS FeedSesame Street Explains the Madoff Scandal
Some of us were still having a hard time figuring it out, even after companies law.
Attn CSIS: American Airlines Flight 93 Doesn’t Exist
Justice Tremblay-Lamer of the Federal Court has quashed the controversial case against Adil Charkaoui, the alleged terrorist detained on a security certificate.
In his 2004 case before the Federal Court, the government made submissions that his interest in karate could infer his involvement in terrorism,
[50]To add to the demonstration of danger to national security and to any person, the Ministers link the respondent with violence and explain that he is a karate and martial arts enthusiast, and add that (see page 5, exhibit R-3):
[translation] In the past, it has been observed that some individuals involved with Al-Qaeda are devoted to the practice of karate and/or the martial arts. In particular Ziard Jarrah, who was part of the group that hijacked American Airlines Flight 93, (sic) had trained in the martial arts in preparation for the September 11, 2001 operation.
[51]The Ministers expressly and unequivocally associate the respondent with a sleeper agent in the bin Laden network and use Ressam’s story as a typical example.
[emphasis added]
All those with even a peripheral interest in martial arts should take notice, especially since no such flight on 9/11 even existed.
The Charkaoui case has been yet another one pointed to by critics of the shoddy research and baseless allegations used against vulnerable populations, who repeatedly are determined innocent by the courts.
Corruption
Montreal Mafia controls 80 per cent of road contracts, whistleblower says
“There is a group that controls contracts on [Montreal] Island, passing them around, one after the other, we call them the Fabulous Fourteen,” said Paul Sauvé, a contractor who says he was threatened into making political contributions for a contract to restore the roof on Montreal City Hall.
Where is Transparency International when you need it.
Charkaoui is free
Judge formally strikes down security certificate against Charkaoui
Charkaoui is a landed immigrant who was arrested in Montreal in 2003 under security-certificate legislation that allows Canada to expel foreign-born individuals if they are considered a national security risk.
One correction, Canadian Press: the security certificate law applies only to non-citizens, not “foreign-born individuals.”
Does Government Health Spending Hurt the Economy?
The short answer is no (this is even more apparent if you look at the logarithmic scale on Gap Minder). In fact, high government spending on health care per capita (purchasing power parity adjusted) is strongly correlated with high gross domestic product per capita (purchasing power parity adjusted). The nature of this relationship is open to debate (is the country rich because it has government health care or does it have government health care because it is rich?), but the argument that high government healthcare spending lowers gross domestic product is betrayed by the data. The main outliers, incidentally, are mostly oil-producing nations (Qatar, Brunei, Kuwait, United Arab Emirates, Oman, Bahrain, and Saudi Arabia), as well as Singapore.
UWO Arrest: Justified Arrest or Abuse of Power?
After learning of the arrest of University of Western Ontario student Irnes Zeljkovic on Wednesday October 14, 2009, I looked up The Toronto Star article which led me to two videos on YouTube. The comments there, unfortunately, like always, are quite polarizing. On one side, there are those who think that the police were well within their rights to arrest an actively resisting suspect, and there are those who feel that the police are overstepping the boundary and are assaulting Mr. Zeljkovic. After looking at all the available information, I am firmly in the middle of these two views.
I am fortunate enough to be able to dissect this video from the perspective of a former police officer.
After viewing the video a number of times, it is quite plain to see that Mr. Zeljkovic is actively resisting, and on more than one occasion the police give the command of “stop resisting” while also saying that he is under arrest. While the desired effect of telling somebody to stop resisting should in theory provide a warning (if you will), the end result is usually that both officer and suspect are both entrenched in their positions.
I would like to strongly state that the following is only MY view of the video. However, what people who post comments on YouTube often fail to understand, is that when a problem has escalated to the point where physical intervention is necessary and the videos start rolling, they have missed some of the most crucial parts of deescalation that officers have at their disposal. The head of UWO Campus Police, Elgin Austen stated that the officers are trained in accordance with the standards of the Ontario Police College, which is true. Having been a graduate of that institution myself, I have a pretty good idea of what is taught there. When it comes to physically intervening with a suspect, a “use of force wheel” is referenced and the officer will make an appropriate (not always though) decision.
(This use of force wheel is from The Braidwood Inquiry which was launched in connection to the death of a Polish Citizen via RCMP officers who used Conductive Energy Weapons (CEW/Tasers) at the Vancouver Airport.)
After having viewed the video, and from my experiences and past training, I see NO REASON why one of the officers applied force to the middle and upper portions of Mr. Zeljkovic’s back and neck with his asp baton. Officers are trained to specifically NOT to use this hard impact weapon on areas where significant damage could be caused (i.e. neck, forearms, and head) because of the risk to the suspect. While an actively resisting suspect is a very dynamic situation, in my humble opinion this exceeded the appropriate options available to this officer.
In the end if there is an investigation regarding the officers actions that will be remain to be seen. However, what needs to be taken away from this situation is not what led to Mr. Zeljkovic’s arrest, and not the actions of police in general, but the actions of one officer, and what can be learned from the situation to prevent such incidents from happening in the future.
OMG! Law Talk Episode 2
Law Blawgers Omar Ha-Redeye, Michael Carabash and Garry J. Wise return with Episode 2 of OMG! Law Talk.
THIS WEEK ON OMG! -
·Google Juice
·Law Firm Public Relations Strategies
·Getting Legal Information Online
·Blogging and the Election of George Bush
·Responding to Torture
·On Mark Steyn and Freedom of Speech in Canada and America
OMG! Law Talk is a weekly series, jointly presented by Wise Law Blog (www.wiselaw.blogspot.com) , Dynamic Lawyers (www.dynamiclawyers.com) and www.OmarHa-Redeye.com)
Canadian Lawyer asks Why Diversity Matters
Does diversity matter in the legal profession? And if so, what is the current status of diversity in major Canadian law firms?
Canadian Lawyer is focusing the subject in the October issue.
Gail Cohen looks at the experiences of several diverse lawyers, and addresses the business case for diversity.
But firms are still not disclosing their numbers, and we know why. The number of visible minorities at the upper tiers of large law firms are abysmally low.
Recruiting is not the issue – it’s retention. And the use of “corporate fit” is just an euphemism for exclusion, and diverse students recognize this when they hear the terminology during interviews and promotional materials. Rather than adapting firm culture to reflect our increasingly diverse society, firms are still expecting lawyers to adapt to their monolithic ideals.
Meanwhile, some of the best legal talent is siphoned elsewhere, to other areas of law or even other careers. They taken their diversity experiences about law firms with them wherever they go, and they can impact business and recruitment.
But the problem isn’t just in law firms – the judiciary is probably even worse. And the problems begin much earlier in the legal career, as early as in law school, where a monolithic and exclusive culture permeates almost every institution.
Cohen suggests that firms come clean and show their figures. If their figures are low, they can show progress over time. Big firms have the resources to take the lead, and the financial incentives to do so.
By recognizing that diversity provides them a competitive business edge and actively seeking to rectify the situation, more opportunities will open up for diverse lawyers. And if that happens, other sectors of the legal industry, including law schools, will likely follow.
Canadian Lawyer will be posting weekly stories related to diversity for the next month.
As an extra cookie, how many Law is Cool contributors can you find on the cover of this month’s magazine?
Access to information
Ottawa sued over censorship of Tommy Douglas dossier
Steve Rennie writes:
The federal government is being taken to court over its decision to withhold hundreds of pages, some decades old, in the Mounties’ secret file on Tommy Douglas.
Reputation Management Law is the Next Big Thing
Tony Wilson, of Boughton in Vancouver, wrote in this week’s issue of Lawyer’s Weekly,
Reputation matters… But it’s not just companies and trade-mark owners who have reputations to protect. We all do, and these days, much of our personal reputation is on the web for all the world to see.
Like many professionals, physicians in Canada operate by word-of-mouth referrals, largely based on the personal experiences of patients or other referring physicians. RateMDs has become an increasingly popular site for patients to share experiences about their physician.
It’s become enough of a concern to physicians that Sam Solomon provides some advice to MDs in this month’s edition of Parkhurst Exchange:
- Ask for the review to be taken down
- The Medical Justice approach of providing patients a contract allowing them to only post reviews on sites that confirm poster identity
- Sue
- Encourage patients to post positive reviews
- Use the criticism as an opportunity to improve practice
It’s unclear whether option 2) would hold up in court, and 1) is rarely effective, either due to confidentiality issues, site administrative policies, or simple refusal.
RateMDs was founded by the same people who made RateMyProfessors.com, RateMyTeachers.com, and the Ratingz.net network of rating sites that includes LawyerRatingz.com. It seems quite a few of my law professors are up there. A quick survey reveals that many Canadian attorneys have been rated, and most not favourably.
Assuming that the only people to ever review professionals are clients who have utilized their services is far too presumptuous. Competitors, business rivals, people with personal vendettas, and even opposing parties in lawsuits can pose as a client in an attempt to portray the person in a negative light.
It can and has happened. Solomon points to the case of Dr. Mohamed Foda of Leduc, Alberta, who forced RateMDs to provide information about a negative poster through the California Northern District Court in Foda et al v. RateMDs, Inc. On April 28, 2008, the Edmunton Sun covered the story,
An Edmonton urologist has launched a $12-million defamation lawsuit against two unidentified people for allegedly posting bogus poor ratings about him on the California Internet site RateMDs.com. In a March 31 statement of claim, Dr. Mohamed Foda alleges the postings were not made by actual patients of his, but by someone who has a “malicious” motive to harm his medical business, and states he will seek to identify the unknown defendants by searching for their computer identifying information. Foda claims the defamatory comments have caused irreparable harm to his reputation and medical practice and caused him emotional distress and anxiety.
The posts in question stated:
“This doctor prescribed me an antibiotic that causes birth defects after I clearly told him I was 4 months pregnant!! Apparently he made a ‘mistake.’” — Posted on RateMDs.com on October 1, 2007
“I found Dr Foda to ignore problems until drastic measures were required. Had to call numerous times to get an appointment. Felt that Dr Foda did not do required follow up in a timely manner. Did not inform patients of what he did in the OR [such as] remove tumours. Would have died if not for another [doctor].” — Posted on RateMDs.com on May 26, 2007
Administrator of RateMDs, John Swapceinski, says that the site gets letters from lawyers once a month. Not surprisingly, they do not comply with the requests. The site does serve an important public function for consumers of healthcare. But Swapceinski also said that Dr. Foda’s suit is the first time a lawyer has actually followed through and sued the site, and he indicated he would cooperate with a subpoena to release the information if one was provided.
In light of the Cohen v. Google and York University v. Bell Canada Enterprises cases I’ve covered previously, it’s probably no great surprise that the court did reveal the identity of the poster.
What is also unique about this case is that the person identified as the RateMDs poster was involved in different lawsuit on the other side of Dr. Foda in Foda v. Capital Health Region, [2007] A.J. No. 22; 2007 ABQB 19, where he was making a claim for breach of contract, conspiracy, harassment, defamation, and direct interference with economic relations.
The Court of Appeal ([2007] A.J. No. 668;2007 ABCA 207) upheld a motion to add a party to his statement of claim, but the defamation claim agains this party was struck for lack of evidence using the test in Botiuk v. Toronto Free Press Publications Ltd.,
62 …it is sufficient to observe that a publication which tends to lower a person in the estimation of right‑thinking members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability. See Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, at p. 1079. What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances. In The Law of Defamation in Canada (2nd ed. 1994), R. E. Brown stated the following at p. 1‑15:
[A publication] may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances, known to the listener or reader, which give it a defamatory meaning by way of innuendo different from that in which it ordinarily would be understood. In determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.
But if the party Dr. Foda was seeking to add in the Alberta case – a Donna Canart, Surgical Clinic Coordinator at Leduc Community Hospital – is the same person identified in the California proceedings, this evidence may now be available. Canart allegedly filed a report against Dr. Foda according to the Capital Health Corporate Workplace Respect Policy, raising issues in the Alberta case of malicious prosecution. However, similar defamation claims in Alberta were made against co-defendant Linda Scott. The California case has only had two hearings to date, and Dr. Foda only spoke in general terms to Sam Solmon, so it is difficult to ascertain which specific party was behind the RateMDs posting.
Even when a claim is substantiated, it is possible for either party to turn malicious. The Foda case highlights that litigants in lawsuits can and will attempt to affect the reputation of the opposing party online, something I’ve predicted repeatedly. All types of litigation will invariably cross over into this specialized area of law.
Some of these rating sites allow the professors to respond to their students, even with video. Or, as they put it,
Your professors have been reading your comments on RateMyProfessors.com. Now it’s their turn…
I don’t see other professions going the same way, given the nature of client solicitation. So where do people turn for help?
Wilson concludes,
Just like there was no such thing as Internet law before the Internet or franchise law before there were franchises, a new and growing niche area is “reputation management law.” It straddles libel, slander and defamation law, freedom of speech, privacy law, copyright and trade-mark law, employment law and the rules governing Youtube, Facebook, Twitter and other social media. And like environmental law 25 years ago, it has nowhere to go but up…
Either way, it’s clear that online reputation management is the next big thing that everyone will have to deal with.
Everyone reading this is now searching their name on LawyerRatingz.com, or other sites like CanLaw. They’re probably wondering what they would do if they were deliberately maligned, and trying to figure out who is the best”reputation management lawyer” they know, if any.
And that’s assuming that you waited until the end of the article to do so.
RCMP Takes Heat for Failing to Probe Wire-Tapping Allegations
Last November, MP John Duncan (CON – Vancouver Island North) was accused by the NDP of illegal wire-tapping, contrary to the Criminal Code of Canada, s. 184(1). New Democrats alleged that Duncan, whose parliamentary email address is similar to that of Linda Duncan (NDP – Edmonton-Strathcona), was inadvertently sent an email containing passwords for an NDP caucus conference call. The Conservative Party then released an audio recording of the call to the media. John Duncan has not made any public statements about the incident and no charges were laid.
Following a complaint by the NDP, the RCMP is now under investigation by the Commission for Public Complaints against the Royal Canadian Mounted Police. The New Democrats allege that the RCMP failed to perform an adequate investigation into the incident, and claim that the police did not even interview John Duncan to assess the situation.
For what it’s worth, the relevant portions of the Criminal Code read as follows:
Interception
184. (1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
The word “intercept” is defined in s. 183:
“intercept” includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof;
Some commentators have argued that because the email was sent to a Conservative MP, there should be no legal consequence attached to using the information in that email to record the conference call. However, the NDP argues that the conference call was still “a private communication” within the meaning of s. 184:
“private communication” means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it; [emphasis added]
The word “intended” in the definition of a private communication is crucial. It suggests that the originator has reasonable expectation against any person that the originator did not intend to make a party to the private communication, notwithstanding that the originator may have inadvertently allowed such a person to access to the communication. It would seem pretty clear from the circumstances that the NDP did not intend for an MP from a rival political party to participate in their caucus strategy call (particularly in light of the political situation at the time).
Legally, then, the analysis for the allegations raised by the NDP against John Duncan would be along the following lines (I have used “alleged interceptor” in place of “accused” since Mr. Duncan has not been accused by the Crown of any crime):
- Was the NDP‘s conference call “a private communication” within the meaning of s. 184?
- Was it oral communication or telecommunication?
- Was it made by an originator who is in Canada or intended by the originator to be received by a person who is in Canada?
- Was it made under circumstances in which it was reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it?
- Is the alleged interceptor a person intended by the originator to receive the communication?
- Do the circumstances, including the inadvertent email sent to the alleged interceptor, give rise to a reasonable expectation that the communication would not be intercepted by the alleged interceptor?
- Was the communication willfully intercepted by the alleged interceptor?
- Did the alleged interceptor listen to, record or acquire the communication or the substance, meaning or purport thereof?
- If so, did the alleged interceptor do so wilfully?
An interesting legal issue that follows from the above is content of the mens rea of the offence. The accused must “willfully” intercept a private communication in order to be convicted. The definition of “a private communication” includes a component of reasonableness (specifically, the reasonableness of the originator’s expectation that the communication will not be intercepted). So, does the mens rea consist of wilfully doing something that is objectively unreasonable? Or must the accused know that her interception is unreasonable in order to be convicted? I would argue for the former, given that the accused’s subjective beliefs about the reasonableness of intercepting another’s communication could vary wildly what is objectively reasonable (for example, someone who suffers from paranoia might consider it reasonable to tape her neighbour’s phone calls out of an unfounded fear for her own safety, yet this usually is not objectively reasonable).
Notwithstanding the legal complexities that would undoubtedly arise if charges were laid in connection with the incident I’ve described, there is, in my view, at least enough substance to the NDP‘s allegations that they should be taken seriously and subjected to a proper investigation. Given that this incident played a major role the constitutional crisis of 2008, it would argue that this is a matter of national importance and that it should be treated accordingly by the RCMP.
Mental illness and crime
Father suffocated sons, stabbed daughter, murder trial told
Another case where mental illness is at issue. Perhaps, if we as a society spent more money on diagnosis, treatment and care of the mentally ill, we would have fewer crimes like this.
Terri Theodore writes:
More video showed a blood-splattered home leading from the living room into a bedroom where two messages were written in what appears to have been blood on a white pillow case. On one side the note reads “gone to Neverland” and the opposite site reads “forever young.”
Awards
Partners
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- British Columbia (Ministry of Education) v. Moore: Comparing Approaches to Comparator Groups in the Context of Anti-Discrimination Legislation
- So You Got Punched By a Cop: Disciplinary Action or Civil Suit? Issue Estoppel in Penner v. Niagara (Police Services Board), 2010 ONCA 616
- The ‘Return to Unanimity’ in Insite and Division of Powers Jurisprudence: Chief Justice McLachlin’s ‘Oversight’
- UofT
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- UofA
- LexMonitor
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