RSS FeedCanada Goes for Another Hockey Gold
Hot on the heels of the victorious Canadian women’s hockey team is the men’s team, which is aiming for its own hockey gold. The game against the rival United States promises to be an Olympic classic!
Beginning at 12:15 p.m. PST (3:15 p.m. EST), you can watch USA v. Canada online at CTV’s Olympics website. The site offers full HD streaming video, which is perfect for me, since I don’t have a TV. The link to the video is here.
And since this is a law blog, I’ll see if I can do a haphazard legal tie-in to end this post.
If you ever had any doubt that hockey was one of Canada’s true national sports — not just lacrosse — check out the National Sports of Canada Act, S.C. 1994, c. 16. The Act provides:
2. The game commonly known as ice hockey is hereby recognized and declared to be the national winter sport of Canada and the game commonly known as lacrosse is hereby recognized and declared to be the national summer sport of Canada.
Another sign that Canadians are obsessed with hockey: have a look at how many times “hockey” comes up on a CanLII case law search. I come up with over 7000 results, beginning with a case called Hockey v. Hockey from the BC Court of Appeal. You can’t get much more Canadian than that!!
Go Team Canada!
Planet Law
The 1Ls in my law school put this one together.
It’s actually not that far off from an accurate description of what goes on.
Planet Law: 1L Obiter Dicta Video 2010 from Steven Pulver on Vimeo.
As companies battle the recession, bartering comes in handy
First posted on Commercial Law International on Feb 24, 2010.
By: Carsten Lexa
Money helps a lot when it comes to exchanging goods. One buys the goods, pays with cash and takes the goods away. So far, so good. But what if free cash to spend is a rare thing? For example in times like today, when the economy is not doing well and money is scarce?
Today, more and more companies turn to third party networks to contribute and use barter schemes. Of course, bartering is nothing new: It is a medium in which goods or services are directly exchanged for other goods and/or services without a common unit of exchange, e.g. money (according to Wikipedia). Firms routinely arrange exchanges on their own. But cultivating relationships with business partners in such a way, that barter schemes can be discussed and established among each others takes time and presents numerous hurdles. Let´s assume the owner of a restaurant needs printing services with a value of $ 10.000,00. Where can he find a printshop with an owner who is hungry for a $10.000,00 meal?
Formal barter schemes can help. One of the biggest providers for example is Bartercard, the largest exchange network with trades through its network worth more than $ 2 billion and 75.000 members in more than 9 countries. By using such a provider, the restaurant owner in the example above would owe $ 10.000,00 to the exchange network, not the printshop. The provider provides the business partners and makes sure that every member of the network honors the services of the other members. It therefore provides security and accountability, something informal bartering cannot provide in an adequate way.
What are the additional advantages of such barter schemes, other than security and accountability? The biggest advantage is the fact that no money is needed to “pay” for services and goods. Another one is the fact that a member can “buy” services first throught the network and pays later in his own services and goods – sometimes months later, if nobody wants his services or goods earlier. And finally such a scheme can work not only in one country, but – ideally – worldwide, as long as the members accept the scheme.
Even in Germany such barter schemes are tried and – especially among small and midsize compamies – found helpful. But currently, no big exchange networks exist. So, member of traditional business networks try to establish their own barter networks. Reason is that a company owner who knows another company owner through a traditional business network and has done business with him in a traditional way using cash will be more open towards doing barter transactions with this person than with a total stranger.
Is barter the holy grail for companies in recession times? Probably not. But it can be a helpful to do business if cash is scarce. The difficulty is to find the right partner.
For inquiries please contact the author: kontakt@kanzlei-lexa.de
Judge Caught on Tape Requesting Sexual Bribe
Peter Small of the Toronto Star reports,
He was a former Toronto councillor turned immigration judge and she was a Korean refugee claimant.
They met at a coffee shop to discuss her case and, in a conversation she secretly recorded, he said he wanted to be her “good friend,” court was told Monday.
…
“You know if we do things on the side, that’s okay. Don’t worry, I’m not going to be demanding. I’m not going to ask you to move in with me or anything like that,” Lynda Trefler quoted Ellis as saying.
Nicholson Ends 2-for-1 Special
Justice Minister Rob Nicholson has ended the discretionary practice of giving criminals double credit on time served awaiting trial. Previously, for example, a convict who had waited two years for trial could take four years off their sentence (or in the case of the deplorable Don Jail, six years at three-for-one).
In a National Post editorial, Nicholson wrote:
Of course he did not offer any evidence as to why these criminals had been released too soon.
Nor did he mention the justification that had led to the two-for-one option in the first place – reasons such as the “terrible conditions” that exist in correctional facilities. Reasons such as that the prison system is grossly overcrowded. Reasons such as that time served before a trial is psychologically harsher than time served after conviction/acquittal.
Nicholson did not explain how the new law will substantively prevent crime, or relieve the conditions that inmates awaiting trial endure. One can only conclude that the new law will lead to even more overcrowding in correctional facilities.
The reason for the new law is optics. As I wrote recently, political dialogue has become locked in a false “tough on crime” or “soft on crime” dichotomy. Nicholson is determined to show that his party is tough on crime (not to vindicate the other parties, all of whom supported the bill, especially the Liberals). Nicholson in the Post editorial:
And Nicholson to the CBC:
This will bring more truth in sentencing and give Canadians confidence that justice is being served
Let’s remember that the criminal law is not about public perception, and it’s not designed to compensate victims (for that we have tort law), rather the criminal law is designed to keep society safe and functional. I fail to see how this bill adds to that goal, and neither Nicholson nor anyone else has indicated that the bill does anything but play off of fear and misconception.
Cross-Burning in Nova Scotia
Read the full story at The Gazette.
Are there inalienable rights in Canada?
We in Canada like to think of ourselves as free. We also like to think we have rights. The police can’t throw us in jail for our political views. And if they do throw us in jail for any reason, the police must let us call a lawyer. A part of Canada’s constitution, the Canadian Charter of Rights and Freedoms guarantees our rights and freedoms. But the constitutional rights and freedoms such as freedom of expression, a right against arbitrary detention or imprisonment, and even our right to life, liberty and security, are not absolute. The Charter leaves loopholes for the federal Parliament, provincial legislatures, or even judges to limit or take away any rights or freedoms. There are no inalienable rights in Canada.
A legal right is a claim to a benefit. The law sets legal rights, and the courts will enforce them if no one else will. When you sign a contract to lease an apartment in exchange for rent, your tenant has a right to use the apartment, and you have a right to some of the tenant’s money. Your right is always someone else’s duty, which is either to give up the benefit you claim or to let you claim the benefit freely. You can also have rights against the government. For example, habeas corpus is a right to see a judge if the police arrest you. Freedoms are like rights but they are more about enjoying benefits you already have, such as speech or movement. Still, the flip side of every freedom is someone’s duty to respect it. For example, if you have a freedom of religion, the government may not ban your faith.
But rights and freedoms in our relations with the government are tricky because the government is a sovereign. It means that within its geographic borders the government writes the law. What good is a right if the government can scrap it? That’s where a constitution comes into play. It’s a superlaw that tells the government what laws it can and cannot write. And it’s very difficult for the government to change the constitution. The Canadian Charter is the part of our constitution that orders the government to respect certain human rights. If a provincial or the federal legislature passes a law infringing on our Charter right, the courts can strike that law from the books. It will have no force and effect. That way the Charter protects us from the government.
Even democracies need this protection to stop majorities from oppressing minorities. For example, our legal tradition has very good reasons for protecting some rights of the criminally accused. Only a minority of the total population will ever need these rights. Whether justified or baseless, a fear of crime can bring a party that wants to do away with these rights to power. In theory, our Charter will always stop the Parliament from touching the rights of the criminally accused. Before the Charter, the Parliament could throw out the presumption of innocence or the law against self-incrimination. A constitution can also protect racial, gender, or other minorities from discrimination. We can be sure of our human rights only when they are safe from the majority and the government it elects.
The Charter promises us this safety, but it doesn’t really deliver. There are several loopholes in the Charter that let the federal parliament, provincial legislatures, or the courts take away rights. First, the notwithstanding clause in s. 33 empowers legislatures to suspend fundamental freedoms (s. 2) and legal (ss. 7-14) and equality (s. 15) rights. Perhaps for fear of the ballot box, legislatures tried it for real only very few times. But if the government can suspend the rights, they are not inalienable.
Second, the most obvious limitation on all rights and freedoms in the Charter is in s. 1. It basically says that sometimes the Charter will not protect our rights. Suppose the Parliament passes a law that bans newspapers in a certain language. If the government can justify this law as reasonable “in a free and democratic society,” it can get away with it under s. 1. Who decides what’s reasonable and what’s free and democratic? Ultimately, it’s the nine people on the Supreme Court of Canada. Sometimes a s. 1 justification is a very hard task, but a right or freedom is guaranteed only if it’s legally certain, not if it’s probable or very likely. So the government can strip anyone of any Charter right with the consent of the Supreme Court.
Third, the courts decide what each right and freedom in Canada actually means. For example, s. 7 allows the government to deprive anyone of “the right to life, liberty, and security of the person” only in accordance with “the principles of fundamental justice.” The Supreme Court decides what these principles are. Next, the Charter often defines rights using the principle of “reasonableness,” which is really a code word for letting the courts fill in the details. See, for example, the right against “unreasonable search” (s. 8), the right to be tried within a “reasonable time” (s. 11(b)), etc. When the police breach our Charter rights to obtain evidence against us in a criminal investigation, we have a right to have it excluded from our trial—but only if “the admission of it in the proceedings would bring the administration of justice into disrepute” (s. 24(2)). Again, the courts decide what that means by applying factors laid down by the Supreme Court.
Finally, if the government breaches your Charter rights, the courts decide what compensation you get if any. It is little comfort to you and little deterrent to the government if the courts merely declare government action unconstitutional. Denied or insufficient remedies gut Charter rights and freedoms. As the recent case of Omar Khadr has shown, the Supreme Court can deny a meaningful remedy even for breaches of the most basic rights such as a right to fundamental justice in s. 7. Most Canadians don’t seem to like Omar Khadr or his family, so the majority is clearly not on his side. The Supreme Court didn’t say that it let the government off the legal hook because of the views of the majority of Canadians. But these views possibly encouraged the government when it violated Khadr’s Charter rights or denied him the requested remedy. What is the value of rights that depend on politics?
One can argue that these cases are extreme and that limits on our Charter rights are fine because we trust our government. After all we elect it. But consider this. First, majorities elect the government, and how certain are you what the majority will be like 20 years from now? Are you going to be in that majority? Do you want to entrust your most basic human rights to a majority? Second, even election rights in the Charter are not inalienable. Mix a national emergency with the right people on the Supreme Court (appointed by the Prime Minister; no Parliament’s consent required), and the words “reasonable,” “free,” and “democratic” in section 1 of the Canadian Charter can have a very different meaning.
The word “inalienable” expresses the idea of rights that the law can never let anyone take. An inalienable right is yours by the fact of your membership in the human species. No government or person gave you this right, so they can never take it away. It is yours by birth. It recognizes your inherent value as a human being regardless of who you are, what you did, or what you think. Very few rights can be inalienable but those that can are truly fundamental: a right to a fair trial, freedom of speech, habeas corpus. The US Declaration of Independence speaks of “Life, Liberty, and the pursuit of Happiness” as inalienable rights. The Universal Declaration of Human Rights recognizes “the inherent dignity and of the equal and inalienable rights of all members of the human family.”
Our Charter does not have the word “inalienable,” neither in letter nor in spirit. It uses other words. But social conditions change, and what’s not “reasonable,” “free,” or “democratic” today can become such in the future. There is a fully legal path to breaches of any rights in Canada. It doesn’t necessarily mean it’s possible politically, socially, or economically, but legally our rights are uncertain. A constitution that fails to protect minorities from the majority’s changing moods does not guarantee rights. The loopholes in the Charter show that we have rights and freedoms only as long as the government and the Supreme Court let us. Rights and freedoms in Canada do not inherently belong to us as human beings but are revocable gifts from the government and the courts. And if we can’t change our Charter, we must at least hold our government to account especially strictly when it comes to human rights.
Countdown to the New Competition Act Provisions
Last May, the Competition Bureau published a draft version of the Competitor Collaboration Guidelines in order to receive public feedback on proposed amendments to the Competition Act regarding conspiracies or agreements to reduce competition. The revised version published in December contains two new provisions that will come into effect on March 12, 2010. If you are interested in reading the Guidelines or the new provisions, an online version is available on the Competition Bureau website.
The Guidelines outline the general approach that the Bureau will take in its enforcement of the amended criminal prohibition in s. 45, and the newly added civil agreements provision in s. 90.1 of the Act. These provisions create a comprehensive enforcement system that makes it difficult for alleged offenders to elude sanctions for anti-competitive practices. In the Guidelines, it is emphasized that the criminal prohibition will only be enforced against conspiracies, agreements or arrangements between competitors to “fix prices, allocate markets or restrict output that constitute “naked restraints” on competition”. Criminal sanctions should not be pursued against legitimate collaborations between competitors that are beneficial alliances. These new provisions also indicate a shift in the approach to enforcing the Act towards greater transparency and certainty. Read more
Would-Be Undead Governor Seduces Youth?
Authorities in Minnesota report that sixteen-year-old Paige Brewster is missing and believed to be residing with once-and-future Minnesota gubernatorial candidate Jonathon Sharkey. Sharkey, 44, is purportedly helping Brewer obtain legal emancipation from her mother. News of their relationship has prompted a slew of outraged comments on local news websites.
A description of Sharkey found on his MySpace page sheds some light on the public’s ire:
Jonathon “The Impaler” Sharkey is one of the most known and infamous Vampyres in the world. He gained national and international attention in 2006 when he announced his candidacy for Governor of Minnesota. Jonathon is running for Governor of Minnesota in 2010. Governor Pewlenty [sic] withdrew from the race the day after Jonathon made his unofficially [sic] announcement on 1 Jun 09. Jonathon will officially announce his candidacy on the IDES OF MARCH in Rochester, MN.
Unlike most politicians, Jonathon was bringing a “New Deal” to not only Minnesota, but America as well. Jonathon’s hard stance on crime is an understatement. Jonathon feels that those who prey upon and attack the elderly, rape women, molest children, commit acts of terrorism, sell drugs , abuse their authority and violate Americans Constitutional Rights shouldn’t be jailed, they should be brutally IMPALED! Hence, Jonathon’s nickname – “The Impaler.”
Sharkey The Impaler, according to his Wikipedia page, is a boxer and wrestler, a convicted felon, and a perennial candidate for public office. In 2004 and 2008 he filed to run for president of the United States under the banner of the Vampyres, Witches and Pagans Party, which he founded.
Brewster, for her part, has been active on local news blogs covering her saga. She denies that she is a runaway and that The Impaler is a pedophile. She claims that she was abused by her mother. Brewer’s mother claims that her daughter has been brainwashed by The Impaler. (The claim has some credibility: vampires possess powers of hypnosis, if Bram Stoker can be relied upon.)
Recently The Impaler posted a video online in which he proposed to Brewster. Subsequent comments indicate that she accepted the proposal. The video is SFW but not SF your dignity, or The Impaler’s.
Possibly after the requisite bat-blood-drinking ceremony, Brewster will join The Impaler as a creature of the night for all eternity, à la Twilight.
Which part of this story is most noteworthy: the grown man (perhaps thousands of years old!) shacked up with a sixteen-year-old girl? the girl’s efforts to be emancipated from her family? the fact that her paramour wears a black trench-coat and sword and subscribes to something called Luciferianism? Still, fangs and all, Jonathon Sharkey is only the second weirdest Minnesotan.
The Infamous Box #4
Criminal record checks are increasingly being used to screen job applicants, and can hurt your prospects of getting a job.
But should a recent speeding ticket (not a criminal offence) that puts you in the database allow an officer to check an ambiguous box that neither confirms nor denies the presence of a criminal record?
The Times Colonist reports,
The “may or may not exist” category — box No. 4 — is ticked when an applicant’s name turns up in police records for a wide range of reasons. Perhaps it was last year’s speeding ticket. It could be for being questioned by police about your barking dog or the fact someone noted your car’s plates while it was in the area of a crime being committed.
The B.C. Civil Liberties Association has long-standing concerns about criminal-record checks, said spokeswoman Micheal Vonn.
“We hear various stories about the infamous ‘box No. 4,’ and we are increasingly concerned, because not only has the amount of criminal-record checks increased but so has the amount of data that police are collecting.
“We understand there are very, very few guidelines and there are inconsistencies,” said Vonn, adding that what gets noted on a police database is often not verifiable.
“In the [fourth] box I have found, in assisting complainants, things that are so shocking and detrimental and prejudicial to their employment, such as police conjecture as to their mental health.”
Billing By The Hour
There has been a great deal of discussion among legal commentators about the failure of hourly billing for legal services and the need for alternatives. The most recent article I’ve seen is in the CBA’s Jan/Feb issue of National. Although I’m a law student and have never billed a single hour as a lawyer, I have worked for more than a decade as an entrepreneur and I wonder … what are the alternatives, really, but masked versions of hourly billing? Given the limited amount of hours available to work in any day/week/year/lifetime, billing by the job MUST reflect the time that the task requires.
Flat fee services must have caps on the input of resources to succeed as business models and, as a result, will tend to put a floor rather than a ceiling on the cost of any given service. At best, a flat fee will reflect the average amount of time required to perform a service. Innovators can find ways of doing things more quickly through economies of scale, computer processing, outsourcing and so forth, but price reductions that service providers choose to pass on to the clients can be built into an hourly billing model just as easily as any alternative. Innovations might put pressure on hourly rates through competition, but this has nothing to do with the method of billing.
Frankly, I fail to see how alternatives to billing by the hour will change the cost of legal services. The real pressures on cost come from the the well-known forces of the marketplace … the rest is just packaging. And if clients are becoming more sophisticated, will they really be impressed by a fancy one-size-fits-all (unless you want more) gift bag?
The real issue is value. Lawyers that provide it will gain clients and those that do not will lose clients. Those who insist on talking about how the billing is done, please explain (and be nice about it): What am I missing?
The Invisible History of Slavery in Canada
This is an interesting project in works that sheds light on the other side of Canada’s role in African slavery:
Today in North America, the use of African slave labour is seen as a uniquely American institution. Canada is reputed as being the promised land to the North to where slaves could escape and live as free men and women. The Underground Railroad is our claim to fame, and we toot that horn proudly. Our history textbooks—and much less, our national historical narrative—rarely, if ever mention the two centuries of institutionalized slavery and its role in the founding of Canada…
The film will show the connections between the practice of slavery in the past with racial disparity, tensions, and racism in the present. It will illustrate why telling history in a neutral, accurate and more complete manner is vital to understanding the causal relationship between past, present and future. The overarching point being more than just “history matters,” but rather honest history matters.
