“Bleeding hearts in law school”

By: Ryan MacIsaac · January 31, 2010 · Filed Under Civil Rights, Constitutional Law, Criminal Law, International Law, Law School, Politics · 8 Comments 

On Friday, Kory Teneycke, a former top adviser to PM Stephen Harper, was interviewed on CTV’s Power Play about the Khadr decision:

Here’s a transcript of the best parts:

All of the same sob story that we are hearing for Omar with a slightly different spin on it. This guy is a little terrorist, he deserves to stay in jail until he faces a trial. What Omar Khadr’s lawyer would like and some of the bleeding hearts in law school would like to have Omar Khadr come back to Canada and walk free. In fact I think they would take it a step further, like to sue the Canadian government and try to get him millions

So, I don’t think that Canadians are going to be offended, this sort of line of “his rights are abused” might win applause at law schools but not with regular Canadians.

Aside from showcasing the Harper government’s ideological approach to human rights, Teneycke’s dialogue serves to remind us of the importance of the Charter with respect to individual rights. As eloquently stated by then-Chief Justice Dickson, the Charter safeguards minorities from the “tyranny of the majority” (R. v. Big M Drug Mart Ltd., [1985] S.C.J. No. 17 at para. 96).

I personally hope that most Canadians would prefer to see an alleged terrorist brought before our functional justice system, rather than lower our justice system to a terrorist-like level of disregard for human rights. But even if the Harper government, and the majority of Canadians, wouldn’t care to see Khadr treated as a human being, there is still Charter-based justification for the judiciary (and the “bleeding hearts in law school”) to seek protection of his fundamental rights.

Collaborative Family Law v. The Hartshornes

By: John Magyar · January 30, 2010 · Filed Under ADR/Mediation, Family Law, Uncategorized · 2 Comments 

Divorce litigation appears to be so wasteful. Precious money, time and emotional energy get consumed in battles that could be resolved so much more quickly through negotiation; and processes that promote settlement out of court like collaborative family law seem so obviously to be the better way.

However, while researching a paper on prenuptial agreements I happened upon the trials and tribulations of the Hartshornes. This is an extraordinary story – They disputed a prenuptial agreement all the way to the Supreme Court of Canada then fought about how to apply the decision, who gets the matrimonial home, how much to pay for the other party’s share of the home and finally over costs. All told they went to Court nine times over ten years.

It occurred to me that a collaborative process would have been very dissatisfying to this most combative couple. Although the notion that litigation should be avoided seems like such a reasonable point of view, it could be very patronizing to push this view on someone who is experiencing a painful marital breakdown and genuinely wants to fight.

No doubt lawyers who practice CFL are keenly aware of this, but the Hartshorne story makes the point so abundantly clear. It’s a monument to post-matrimonial melee.  And to their credit, the Hartshornes fought with lawyers rather than fists … but I still scratch my head in amazement. Ten years in court to end a twelve-year marriage. Incredible.

CBC and Copyright

By: Devin Johnston · January 30, 2010 · Filed Under Intellectual Property · 9 Comments 

Scott Tribe pointed out on his blog today that the CBC has implemented new copyright policies on its online news properties. As boingboing explains, the CBC has signed up with iCopyright, an American service which sells licences to digital content creators to allow them to re-post or re-publish CBC content for a monthly fee. Cory Doctorow points out that this is the same service that purports to sell readers of Associated Press content the ability to quote 5 or more words from AP stories.

As a business strategy, I think this is clearly going to be a spectacular failure. Any company large enough to pay $250/month to re-post a single article can also create its own original content at a lower cost. Consequently, I don’t imagine that the CBC will sell very many licenses.

Of course, selling licenses isn’t really the point of the new policy. The point is scare small, independent digital content creators from sourcing the CBC. As Doctrow observes:

The cherry on the cake? iCopyright offers a reward of up to $1,000,000 for snitching on bloggers who don’t pay Danegeld to Canada’s public broadcaster to quote the works they funded.

On top of that, the licensee must “agree not to criticize the CBC, the subject of the article, or its author.”

This, too, seems like an unsound business strategy to me. When bloggers link to or reference CBC‘s online content, it is almost universally the practice of good bloggers to provide a link to the original content. This drives traffic to the CBC‘s online properties both directly (through people clicking on the link) and indirectly (through the Google PageRank benefit which accrues from inbound links, causing CBC‘s stories to achieve more favourable rankings in search results). The CBC seemed to acknowledge the important role that bloggers play in the online news ecosystem when it introduced features such as their “most blogged” content. Recently, these innovative social media features were removed; now they are being replaced with restrictive copyright policies that discourage bloggers from linking to CBC at all.

The CBC, like any other content provider, has a right to protect its intellectual property within the limits of copyright law. To the extent that other parties wish to re-publish the CBC‘s content in full and without comment (by the way, good bloggers never do this anyway), the CBC has the right to dictate the terms and conditions.

However, as the Supreme Court made perspicuous in CCH Canada Ltd. v. Law Society of Upper Canada, there are limits on the scope of copyright protection. The Court is extremely clear on the point that fair dealing is not simply a defence to a claim by a copyright holder; it is a distinct right held by users of copyright material. In other words, “Any act falling within the fair dealing exception will not be an infringement of copyright [emphasis added].”

In determining whether the use of copyright material falls within the fair dealing exception, the court will look at six factors (I have provided short extracts from the case to explain each factor):

  1. The purpose of dealing.. “In Canada, the purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act, namely research, private study, criticism, review or news reporting”
  2. The Character of the Dealing. “If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing.”
  3. The Amount of the Dealing. “If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement.”
  4. Alternatives to the Dealing. “If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court.”
  5. The Nature of the Work. “Although certainly not determinative, if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work — one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair.”
  6. Effect of the Dealing on the Work. “If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair.”

On his site, Scott proposes three ways of circumventing the CBC‘s iCopyright program. First, he proposes to paraphrase any material he uses from the CBC. Second, he says that he will seek out alternative sources that use more permissive copyright policies. Finally, he references a commenter on boingboing who suggests that one user can purchase a license and then every other user can link that original licensed use. I question the legality of the third option, as this would likely still constitute an infringement of the original work.

Not being a lawyer, I am prohibited from offering legal services or advice to anyone. Personally, though, I will continue to quote from and source CBC‘s copyright material on my blog, without purchasing a license (as I did in this post). When I quote from CBC, I will link to the original source. I will also continue to ensure that any use I make of copyright material falls within the fair dealing exception by quoting minimally and supplementing quotations with my own original analysis, commentary, criticism, review, and research. It’s not at all clear to me why I would pay $250/month to exercise my existing legal rights, while also contracting out of my right to criticize the original source.

There is one thing that I will change as a result of CBC‘s new iCopyright policy. From now on, whenever I link to CBC, I will use the the rel=”nofollow” construct. This attribute instructs search engines like Google not to index the link as part of its PageRank algorithm. Essentially, the links don’t help their destination sites to achieve higher rankings in search engines. I already use this construct when linking to sources such as the Conservative and Liberal parties (being a New Demcorat, I want to ensure that I’m not giving any advantage, however trivial, to my political opponents). From now on, CBC will not get the trivial benefit they enjoy in terms of search engine ranking when I link to them. This practice will continue until CBC adopts a more balanced and realistic approach to copyright.

Responses to Prime Minister of Canada v. Omar Khadr

By: Law is Cool · January 29, 2010 · Filed Under Constitutional Law, International Law · 3 Comments 

The anticipated ruling by the SCC in Prime Minister of Canada v. Omar Khadr was released today, and already there is criticism of the decision that ruled that although Khadr’s s. 7 rights were violated, the court could not order the Prime Minister to seek his return.

One of Khadr’s lawyers, Nathan Whitling, said,

He has never had a whole lot of hope in terms of the Canadian government, in any event.

One of Khadr’s other counsel, Dennis Edney, stated,

I will say that the court has the belief that … the Canadian government has a moral conscience and will do the right thing.  I will tell him, ‘And that’s what we have to pray and hope.’

Alex Neve of Amnesty International, an intervenor in the case, stated,

It is not open to the Canadian government to just yawn and not take that seriously now. There has to be an effective response that demonstrates that this government is prepared to stand up for rights of Canadians and is prepared to take seriously judgments of the Supreme Court of Canada, even if the court did not feel inclined to say specifically what the Canadian government has to do here.

In a decision with so much responsibility shifted to the political arena, it’s no surprise that politicians are weighing in as well.  Michael Ignatieff, leader of the opposition, said of the government,

The only thing it can’t do is to do nothing because the court clearly said that the rights of a Canadian citizen have been violated.

But some of the strongest critiques have come from academia, specifically the The David Asper Centre for Constitutional Rights at the University of Toronto.

In a press release sent to this site Diana Juricevic, Director of the International Human Rights Program at UofT Faculty of Law, stated,

We are very disappointed with the decision.  Remedies have to be meaningful in order for Charter rights to be taken seriously. The Supreme Court of Canada has failed Khadr. They have left the decision on what the appropriate remedy is to the Canadian government, which breached Khadr’s fundamental human rights in the first place.

Cheryl Milne, Executive Director of the David Asper Centre for Constitutional Rights, said,

One hopes that the strong pronouncement by the unanimous Court that Canada has violated Omar Khadr’s rights and that the impact of that violation continues unless the government acts, will carry sufficient weight with the Prime Minister to persuade him to do the morally and legally right thing– seek Omar’s repatriation.

And finally, Professor Audrey Macklin, who acted as co-counsel in the case, expressed her frustrations,

The Supreme Court of Canada has spoken clearly, definitively and unanimously on the past and ongoing present violation of Omar Khadr’s rights by the Canadian government.  It has pointed to a request for repatriation as an appropriate remedy for the violation of those rights.  It now falls to the Prime Minister to do what the Supreme Court of Canada encourages but does not force him to do.  If the word of the Supreme Court of Canada that the government has violated Khadr’s Charter rights and should seek repatriation is not enough to motivate this government to act, then I am not sure what is enough to motivate this government to do the right thing.

Vinny Guadagnino, Coming Soon to a Law School Near You?

By: Contributor · January 29, 2010 · Filed Under Pop Culture · Comment 

http://static.tvfanatic.com/images/gallery/vinny-guadagnino-pic.jpg

Vinny Guadagnino of MTV’s Jersey Shore might be a future member of the bar.

See more on WSJ and US Magazine.

With Parliament Suspended, Harper Proceeds with Secretive Treaty Negotiations

By: Devin Johnston · January 28, 2010 · Filed Under Intellectual Property, Politics · Comment 

I’m very glad to see that the NDP is taking notice of the Harper government’s participation in the ongoing Anti-Counterfeiting Treaty Agreement (ACTA) negotiations. Despite a lack of transparency and public consultation, some controversial details of the proposed agreement have been leaked.

The proposed agreement would include a “three strikes” policy on suspected illegal downloading. Under this policy, users would have their internet access cut off after being accused of copyright violations three times, whether or not those allegations are true. In contrast to our constitutionally-entrenched presumption of innocence, the “three strikes” rule would allow rights holders and service providers to sanction users in the absence of any credible evidence or proof. It would create an untenable imbalance of power between rights holders, service providers, and users by placing the onus of disproof on those least capable of defending themselves.

Loss of access to the internet would be a severe consequence for many users. As Cory Doctorow has pointed out, online communication has become increasingly essential for daily life in terms of employment, access to government services, etc.:

I mean, it’s not as though internet access is something important right?

In the past week, I’ve only used the internet to contact my employers around the world, my MP in the UK, to participate in a European Commission expert proceeding, to find out why my infant daughter has broken out in tiny pink polka-dots, to communicate with a government whistle-blower who wants to know if I can help publish evidence of official corruption, to provide references for one former student (and follow-up advice to another), book my plane tickets, access my banking records, navigate the new Home Office immigration rules governing my visa, wire money to help pay for the headstone for my great uncle’s grave in Russia, and to send several Father’s Day cards (and receive some of my own).

The internet is only that wire that delivers freedom of speech, freedom of assembly, and freedom of the press in a single connection. It’s only vital to the livelihood, social lives, health, civic engagement, education and leisure of hundreds of millions of people (and growing every day).

This trivial bit of kit is so unimportant that it’s only natural that we equip the companies that brought us Police Academy 11, Windows Vista, Milli Vanilli and Celebrity Dancing With the Stars with wire-cutters that allow them to disconnect anyone in the country on their own say-so, without proving a solitary act of wrongdoing.

Beyond the troubling “three strikes” proposal, the ACTA has troubling implications for privacy, freedom of association, and the innovative potential of collaborative online projects.

Negotiations are taking place at a time when Parliament is suspended, preventing opposition MPs from holding the government accountable in question period.

Privacy is important. You should protect yours.

High Tech without the Cheque

By: David Shulman · January 28, 2010 · Filed Under Technology, Uncategorized · Comment 

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Until recently, medium and large firms were the primary adopters of sophisticated practice management software, such as Time Matters produced by LexisNexis, and other “high” technology. This was due to the high cost of adopting cutting-edge technology, such as the need to have an in-house IT department. However, as the Google-Microsoft war heats up, smartphone apps proliferate, open-source projects continue to deliver competitve software, and hardware costs fall, it’s becoming increasingly possible for small firms and sole practitioners to run a high tech practice on little more than ingenuity and a tolerance to change.

Office Productivity

From reading law blogs, it appears that Google Apps is the backbone of choice for many such practices. At $50 per user per year, Google Apps provides your firm with custom domain email, chat, video, and voice communication applications; a time-management web application; and a structured wiki and basic website creation application. By comparison, Microsoft Office 2007  Small Business costs $280, and doesn’t provide all of these applications, such as simultaneous online document collaboration (Google Docs). Another popular and free productivity suite for those who do not want to compute in the cloud is OpenOffice.

Voice-to-Text

If you’re not a touch typist and/or are used to dictating, voice-to-text applications like Nuance’s Dragon NaturallySpeaking ($200 USD) can dramatically reduce the time it takes you to compose legal documents. According to Wikipedia,

An average professional typist reaches 50 to 70 words per minute (wpm), while some positions can require 80 to 95 (usually the minimum required for dispatch positions and other typing jobs), and some advanced typists work at speeds above 120.

Two-finger typists, sometimes also referred to as “hunt and peck” typists, commonly reach sustained speeds of about 37 wpm for memorized text, and 27 wpm when copying text but in bursts may be able to reach up to 60 to 70 wpm.

While the world’s fastest speaker, Steve Woodmore, who has achieved a rate of 595 wpm, may be disappointed, Dragon NaturallySpeaking can convert voice to text with 99% accuracy at an impressive 160 wpm. Dragon NaturallySpeaking even offers a legal edition which offers a “preconfigured legal vocabulary that includes over 30,000 legal specific terms and phrases, and [which] even formats legal citations”.

At the start of this school year, I started pitching this software to law students and professors as a great tool for the legal profession and education. I now know about a dozen or so people that are using it and are very pleased.

Smartphones

Smartphone users (and abusers) can now synchronize all of their Google contacts and calendar appointments to their smartphone with a free download of Google Sync.

Netbooks

Also called mini-laptops and sub-notebooks, these computer systems are small (typically with screens  under 11″) , cheap (<$400), light (<3 pounds), and low-power (typically a 1.6 GHz Intel Atom CPU). If all you’re doing is word-processing, emailing, and browsing the net, these moveable electronic thinking machines will lighten your load without lightening your wallet. In addition, many benefit from supremely impressive battery life; for example, the Asus Eee PC 1005PE gets up to 14 hours!

“Say hello to my little friend!”

VOIP

Another way to bring the costs of calling down is voice over internet protocol (VOIP) technology, which allows you to place calls over the internet at extremely low rates. As well, in the US, Google now offers a free service called Google Voice, which offers free SMS and low cost international calls, along with many other impressive features. Perhaps most impressive of these is the ability to create a single phone number that rings all of your phones, wherever they are, at once or in a sequence.

Fax

To save some more money on the phone front, replace your fax line and use a service such as MyFax.com ($10 USD/month) to send and receive fascimiles by email; but you’ll need to invest in a scanner ($75+), or have incredibly steady hands, a digital camera, and no qualms about misappropriating technology.

Accounting

While PCLaw by LexisNexis provides “flexible financial tools that are fine-tuned for law professionals”, it also costs $1140 for a first new user (I wonder if that expense comes pre-entered). For those willing to adapt a generic small-business financial-accounting software to their law practice, open-source software like GnuCashcan be downloaded for free.

“Technology happens, it’s not good, it’s not bad. Is steel good or bad?”

- Andrew Grove, fourth employee and eventual CEO of Intel Corporation.

UWO Student’s Charges Stayed…

By: Ryan Venables · January 27, 2010 · Filed Under Civil Rights, Criminal Law, Ethics, Legal Reform · 3 Comments 

In an interesting twist, the Crown has decided to stay all charges against fourth year UWO student Irnes Zeljkovic.

Zeljkovic’s incident involving UWO Campus and London Police made national headlines late last year when he was arrested in what some described as nothing more than police brutality.  I qualified the arrest both here and on CFRB 1010′s Jim Richard’s Show by saying that I thought all aspects minus the baton strikes were acceptable.

Although no details were released about what transpired in court, Zeljkovic’s lawyer, Phillip Millar of Cohen Highley plans on talking with UWO officials first about his client’s reinstatement and then one can only assume about a potential settlement regarding the arrest.

Also last year, UWO officials hired former OPP Commissioner Gwen Boniface to investigate the incident.  To date, no information has been release with respect to her independent investigation.

Business is Changing – For Lawyers

By: Contributor · January 27, 2010 · Filed Under Law Career · 1 Comment 

Richard Susskind of Times Online says,

Clients say that law firms are not doing enough to respond to the economic downturn. Law firms, meanwhile, say that clients are too focused on costs. These are two of the main findings of a recent study, commissioned by LexisNexis, on the state of the American legal industry.

Pricing emerges as the top issue, according to 71 per cent of the 150 in-house lawyers surveyed, and to 60 per cent of the 300 practitioners in private practice. Taking various findings together, American lawyers seem to agree that, in due course, hourly billing will be largely displaced by alternative billing structures — but not in 2010 and never entirely. Clients are keener on this shift than law firms.

Potential Product Liability Suit against Clomid

By: Contributor · January 27, 2010 · Filed Under Humour · Comment 

http://i.imgur.com/tOjfD.png

LSAT Accomodation

By: Contributor · January 26, 2010 · Filed Under Administrative Law, Civil Rights, Law School · 1 Comment 

A would-be law student has filed a complaint with the Human Rights Tribunal of Ontario in Arenson v. Law School Admission Council.  She was requesting accommodations for the LSAT exam due to her disability.

See a summary of the case at Doorey.

Former AG of NB, “Pants on the Ground”

By: Omar Ha-Redeye · January 25, 2010 · Filed Under Humour, Politics, Pop Culture · Comment 

T.J. Burke, the former Attorney-General of New Brunswick, made this interesting statement to the Legislature recently:

Burke resigned from Cabinet in July of last year to practice law, but remained a Member of the Legislative Assembly.

If you still have no idea what Burke is talking about, you have to see this episode of American Idol.

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