By Kashif Ahmed and Eric Miller, Special to The StarPhoenix
April 30, 2010
Following is the viewpoint of Ahmed and Miller, recent law graduates from the University of Saskatchewan.
Few actions score more political points than announcing that the threat of terrorism requires strong government powers to ensure public safety. That’s exactly what Justice Minister Rob Nicholson did last week when he introduced in Parliament the Combating Terrorism Act.
The proposed bill attempts to quietly reinstate two divisive security measures that were first enacted as a response to the panic in the wake of 9/11. The investigative hearing and preventive arrest provisions would give law enforcement agencies expanded powers.
Although the House of Commons allowed the previous provisions in the Criminal Code to lapse in 2007, they have demonstrated a stubborn longevity as a threat to basic civil liberties — something recognized by both security and legal experts.
Most importantly, these powers were never used after they were first enacted in 2001.
The proposed act does not conform to Canadian principles of justice. It would allow for the police to detain suspects for up to three days without a warrant — a clear violation of the constitutional freedom from arbitrary detention.
Although the police would be required to eventually produce such an individual before a judge, the mere suspicion of terrorist activity could leave the imprisoned person without access to a lawyer for the same time period.
Investigative hearings pose another serious difficulty for individual liberties. To compel a person to testify in court interferes with the basic constitutional right to remain silent and to not incriminate oneself.
The bill further allows for secret proceedings. As U.S. examples have shown, coercive testimony is unreliable, and fails to provide intelligence of value to our security apparatus.
The act is far reaching, will not increase security, and is a hazardous exercise in public policy.
Former CSIS chief Reid Morden has spoken out against the proposed legislation, saying that law-enforcement organizations already have adequate powers to carry out their duties to protect Canadians.
For the Harper Conservatives to suggest extraordinary powers are required to safeguard national security is a fanciful stretch of the public record. Indeed, the tabled legislation ignores the milieu of cases that have struck at the heart of planned terrorism through ordinary security investigations.
The biggest terror case in Canada was disrupted in 2006 through standard, though diligent and excellent, police work and intelligence gathering.
More recently, Momin Khawaja of Ottawa was found guilty, in open court, of terrorism offences with respect to a British plot.
This leads us to ask: Why has the government abruptly proposed reinstating these high-handed measures that our elected MPs rightly had determined were needless?
Despite attempts to portray themselves as the party of law and order, the Conservatives are acting contrary to their traditional philosophical support for individual rights and less government.
It may be a bitter pill to swallow, but Prime Minister Stephen Harper is showing his party to be standing for coercive measures at the expense of age-old constitutional rights.
One wonders if the Conservative party’s concern is to strengthen support within its political base, significant elements of which have been long upset with the minority government’s uncertain agenda.
The Combating Terrorism Act could be the first step in a broader government agenda of repressive lawmaking. It represents a renewed push towards expansive state powers that threaten civil liberties and it promotes those same powers through the menacing spectre of terrorism and chaos.
Ultimately, it is clear that the proposed legislation rests on a threadbare position: That our public safety is in jeopardy without highly intrusive measures and risky state powers.
Fortunately for Canadians, the country and its security agencies have diligently proven otherwise.
Note that this piece is provided for interest alone.
A few days ago the Canadian House of Commons rejected an assisted suicide bill. The proposed legislation would allow doctors to help terminally ill patients or people in unrelenting pain to end their lives. Currently, doctors or nurses or anyone else who helped someone die would be liable to murder or manslaughter charges and perhaps civil damages. Very few jurisdictions in the world authorize assisted suicide, which seems to be a “victimless crime.” The recent failure of this bill in Canada is a good opportunity to review reasons why society denies us an inalienable right to control our own death.
The dying person certainly has an interest in the right to end own life. First, suicide would stop unimaginable suffering. Second, the debilitating suffering is an affront to the patient’s dignity. Third, the dying person may want to accelerate the transfer of his or her property to the heirs. Fourth, the patient desiring suicide may wish to spare his or her loved ones the mutual torture of the situation. Finally, the patient may want to cap his or her health care bill. That of course is not very relevant in Canada unless your province refuses to pay for a life-saving cancer drug.
Not all public interest is against the dying person’s wish. Respect for private will and the freedom to choose is an important part of the Western way of life. But the difficulty here is that dying patients and people in unrelenting pain may have lower decision-making capacity so the society must take extra steps to ensure it understands the will of the patient correctly and that the patient is capable of forming decisions.
Generally, all issues that the society has with assisted suicide are rooted in the overarching interest to protect human life. Death is irreversible, so the risk of mistake is unacceptable even if the risk is small. The harm from assisted suicide based on a mistaken conception of the true will of the patient is enormous. People in great suffering are vulnerable and may have a lower capacity to make decisions or to communicate their true will. It is reasonable to speak of a slippery slope where we take less and less precautions or where our precautions are not enough in harder cases, which we cannot recognize. That path will take the society to where it may kill people who do not really want to die but simply cannot tell us about it.
That’s why, incidentally, the death penalty should be abolished: unless we can guarantee guilt, every time we kill a convict we risk killing an innocent man. Unless a convict’s life is less valuable than a patient’s, our highest duty to preserve life must make any risk of unjustified killing, including in the death penalty, unacceptable.
Another slippery slope argument is that the society will be seduced into tolerating more relaxed requirements for assisted suicide to lower the high cost of caring for the dying. The flip side of this argument is that we should prohibit assisted suicide to protect our standards of caring for the dying.
Our society is extremely complex and it is far from perfect. We make mistakes all the time. Sometimes, politics, ideology, or emotion influence decisions that should be exclusively technical. The risk of killing a dying patient who may not really be willing to die is too high given our paramount social duty of preserving life. Besides, modern science can certainly come up with means of reducing or eliminating suffering on the death bed, if not push the death farther away. Authorizing assisted suicide (just like authorizing the death penalty) is not a good idea.
Cloud computing is one of the best technologies we’ve had in the last decade. It gives us mobility, versatility, security, and powerful ways to manipulate our data. It’s also cheap. Because it’s rooted in the Internet, some express legitimate concerns with cloud computing, mostly centred around data security and privacy. Lawyers may be particularly cautious to deploy clients’ data in the cloud because of lawyers’ unique responsibilities and duties. But a careful look at cloud computing shows that it’s safe for both the general public and lawyers. Its benefits greatly outweigh its costs and some of its features are so compelling, time-saving and economical that every lawyer should be considering cloud computing.
Cloud computing means keeping and processing your data online. For example, in Gmail, you read and write email in your browser’s window, but Google’s servers take care of storing, sending and receiving messages for you. Google Docs lets you do the same thing but with word processing. Ufile.ca handles your tax returns. Amazon S3 gives you unlimited file storage in Amazon data centres. All social media sites like Facebook, Twitter, LinkedIn, Youtube, Flickr, etc. are also examples of cloud computing. Whenever you delegate data storage and processing to a third party that grants you online access, you do cloud computing. “Cloud” means that the specific physical server on which the provider keeps and processes your data is obscure to you. All you care about is the Internet address of the provider and your own access credentials. Into the “cloud” goes some input, and out of the “cloud” comes some output. That’s how it works.
Benefits of cloud computing are enormous. I can think of ten: 1) you can access your data anywhere with an Internet connection; 2) you don’t have to troubleshoot or upgrade any software other than the access application, which is usually your browser; 3) instead of paying large sums for desktop software and its upgrades, you get a free or low-subscription-fee cloud service; 4) you subcontract data storage to professionals; 5) the cloud can give you a regular, frequent, and professional backup solution; 6) cloud services can come with search and data crunching capabilities that are unparalleled simply because of the massive cloud computing infrastructure; 7) cloud backup services can automatically keep previous versions of your data in a way that is unmatched again because of inadequacy of your home or office infrastructure; 8) the cloud can protect your data from undesired jurisdictions or it can keep the data in specific jurisdictions; 9) the cloud makes it easy to share any part of your data with chosen parties and to control their access; 10) the cloud lets you tap into social networks of billions of people.
But some have legitimate concerns with the cloud. And lawyers are among those voices as members of the legal profession have unique responsibilities and duties. There are two main attributes of cloud computing that cause people to worry. First, you appear to lose control over your data’s physical location. And second, you expose your data to the Internet apparently swarming with hackers (“cracker” may be a better word), spies, thieves, and viruses. All alleged issues of privacy, security, and reliability stem from these two things. Often, critics assume that keeping data and applications on home or office computers is a safe alternative. This assumption is probably the biggest fallacy in the cloud computing debate. Let’s review some solutions to issues associated with cloud computing. Read more
While cramming a treatise for my last 1L exam, I came across a quote from the Law Reform Commission of Canada. The report titled Our Criminal Law was released in 1976, but it is just as relevant today:
But criminal law is not the only means of bolstering values. Nor is it necessarily always the best means. The fact is, criminal law is a blunt and costly instrument – blunt because it cannot have the human sensitivity of institutions like the family, the school, the church or the community, and costly since it imposes suffering, loss of liberty, and great expense.
So criminal law must be an instrument of last resort. It must be used as little as possible. The message must not be diluted by overkill – too many laws and offences and charges and prison sentences. Society’s ultimate weapon must stay sheathed as long as possible. The watchword is restraint – restraint applying to the scope of the criminal law, to the meaning of criminal guilt, to the use of the criminal trial and to the criminal sentence.
In a time of economic restraint, Prime Minister Harper is planning to increase Corrections Canada’s budget by 27%. While criminologists disagree about what causes crime, nearly all agree that incarceration DOES NOT REDUCE crime. And crime rates have been steadily falling for decades, so it stands to reason that whatever we’ve been doing is working.
Tom Flanagan justifies tough on crime by comparing 2010 to the 1960s, when crime rates were lower. Would that be the same 1960s when a woman could be legally raped by her husband? When the crime of sexual assault didn’t exist? Of course not, because Mr. Flanagan is looking at the world through the rose-coloured glasses of nostalgia. Those days won’t exist again because they never existed. Even if they could exist, tough on crime is simply not the route there.
Canada’s prison population is composed of a disturbingly disproportionate number of Aboriginal persons, as well as the formerly unemployed, the uneducated, the addicted, the poor. They are at the receiving end of the state’s most terrible weapon against its people. While society will reap no gain, marginalized groups will bear the hugest cost from the politicization of justice reform.
Parliament must not allow Mr. Harper’s tough on crime bills to pass. The opposition Liberals have a duty to refuse this wrongful policy. Political pandering must not trump the best interests of the country. The watchword is restraint.
Above the Law has listed the finalists in their video contest, and Windsor Law made the cut. Considering the number of law schools in the U.S. alone, this is pretty big.
Help support your fellow Canadians and vote for Windsor.
First posted on Commercial Law International on April 26, 2010.
So what is brand management law?
The best definition that I can give is the law or legal practice that facilitates a company or companies managing their band or brands. Yes, I know, I know the definition is a bit circular but hey what do you expect, I am a lawyer after all.
Then what is brand management?
Brand management according to BusinessDictionary.com is: the process of maintaining, improving, and upholding a brand so that the name is associated with positive results…Brand management is built on a marketing foundation, but focuses directly on the brand and how that brand can remain favorable to customers.
Brand management law (BML) is thus defined as the legal facilitation of the above process. It is a multi-disciplinary practice area and brings together many differing areas of law (Intellectual property (IP), litigation, contracts, tax, etc) but more importantly by its very nature also encompasses the non-legal (marketing, public relations, consumer care, business sensibility/sensitivity, etc).
BML is not just a simple matter of commercial awareness or knowing your clients business – both of which are important very important aspects of this area of law, however BML goes beyond either of them. That is to say it is not just a matter of discerning what the client’s interests are, then moving to put in place the requisite legal instruments that establish some right “to” or “in” and then defending said right or rights. Take for example a client that has expended millions on research and development, this client clearly has an interest in seeing a return on this expenditure, a lawyer would move to protect the client’s work product by intellectual propertizing it as much as possible (e.g. registering patents and trademarks), the lawyer would then act as a kind of sentinel, safeguarding the client’s IP through the threat (real or potential) of legal action.
BML is this but much more. Its is practice area that requires a lawyer to be able to keep the legal and non-legal in sync – always remembering that it is the brand that matters.
This practice area requires from a lawyer certain degree of intellectual flexibility. From the nature of our profession lawyers are problem solvers – some might beg to differ – to be more specific we are legal problem solvers. To put it succinctly we will find the legal solution to your business problem. And here lays the problem for many a lawyer when it comes to BML.
Lawyers are good at finding legal solutions to business problems; well that’s what we were trained to do after all. However, BML requires a lawyer to go beyond this and to realize that some times what is in fact needed is a business solution to a legal problem.
What is the difference between these two approaches, isn’t it just matter of semantics? Well, you will just have to stay tuned.
The issue of blogger anonymity is a contentious one that is being closely watched by members of the bar. Canada does have a more qualified understanding of the freedom of speech, and after the emergence of the responsible journalism defence in Quan v. Cusson and Grant v. Torstar Corp we’re likely to to see the courts enter this foray as well.
So what happens when a notoriously anonymous and irresponsible blogger is identified? We may just find out with the recent revelation that the author behind Blazing Cat Fur is allegedly an individual named Arnie Lemaire.
The site is a case study of exactly what not to do with online political commentary, with plenty of potentially libelous statements and speculative conclusions. In fact the site seems to specifically seek to target individuals and comment on them personally.
The Limitations Act states,
4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
Anonymity in this context is frequently used to shield the blogger from potential litigation by avoiding identification of authorship. Although there are mechanisms to identify authorship, they can be tricky and are still developing.
With the revelation of authorship behind these statements, a new limitations period may have started for statements made on the site if relying on 5.(1)(b). They may still have to rebut the presumption in 5(2),
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
Depending on the cause of action, the appropriate limitation might be found under the Libel and Slander Act,
Limitation of action
6. An action for a libel in a newspaper or in a broadcast shall be commenced within three months after the libel has come to the knowledge of the person defamed, but, where such an action is brought within that period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action.
Alternatively, a plaintiff could try to rely on the special circumstances indicated in Mazzuca v. Silvercreek Pharmacy Ltd.,
 Thus, as a general rule, amendments to pleadings which had the effect of relieving against a limitation period, were not allowed. This did not mean, however, that in every case such amendments were to be denied.
 The exception to the general rule, which contemplated the allowing of an amendment in a proper case notwithstanding the intervention of a limitation period, was expressly recognized by the Supreme Court of Canada in Basarsky v. Quinlan, supra, in which Hall J. observed at 385:
“The adjective ‘peculiar’ in the context of Lord Esher, M.R.’s judgment and at the date thereof may be equated with ‘special’ in current usage”.
This decision, and the undertaking of a special circumstances analysis, have been followed in numerous subsequent cases. In some instances this has occurred in the context of the operation of particular limitation periods where special considerations may apply, or legislative regimes which expressly provide for the extension of time periods established by statute. In other cases, the analysis of special circumstances has been undertaken when a change of parties is sought, as a discretionary matter, under the rules.
So will this unveiling lead to any litigation? We’ll have to see, but it will be interesting to find out.
An old cliché says that a car gives freedom. But if freedom means the absence of state intrusion in our personal choices, then that cliché is plain wrong. Drivers are less free than pedestrians or transit passengers. There are three main areas in which driving impairs our freedom. Loosely phrased, they are liberty, privacy, and regulation.
The first area is liberty. Driving is a privilege, not a right. Everybody knows it. That’s why we have driver’s licences. It is a conditional privilege granted and revoked by the state. When you receive this privilege, you consent to greater state intrusion and scrutiny than non-drivers. The police have more powers to stop and detain you, and because so much of people’s lives are in their car—in plain view, the police have more opportunities to engage in a warrantless, plain-view search of your car interior when they stop you. That affects your freedom.
Whenever you are pulled over, you are detained. Detention doesn’t necessarily mean going to jail. If you feel you cannot refuse a police demand that constrains your movement, you are detained. If you are behind the wheel, the police can detain you more easily than if you are walking on the sidewalk. In Ontario, the Highway Traffic Act allows a police officer to stop cars “in the lawful execution of his or her duties and responsibilities” (s. 216(1)). This stop does not require a warrant or reasonable and probable grounds that you committed an offence. The police can stop you to smell your breath (the RIDE program in Ontario) or to see if there are mechanical issues with you car, for example.
There are at least two justifications for this curtailment of freedom on the road. First, the car is inherently dangerous. A lot more Canadians die in traffic accidents than in the most violent armed conflicts Canada is involved in. Second, driving is privilege with conditions, and when you accept it, you give the state the right to verify your compliance with the conditions. Of course, the state’s power to do so is not boundless, but it results in drivers having less freedom than pedestrians or transit riders.
The second area is privacy. Driving sacrifices privacy, and courts held that reasonable privacy expectations in the car are lower than in a home or in a person. When the police stop you, you must identify yourself, which means at least giving your correct name and address. You must also show proof of your driving privileges. But even when you are not stopped by the police, the name and address of the owner of the car you are driving is always apparent to authorities through the licence plate. By the way, bicycle riders have to give at least their name and address if stopped by the police on the street (s. 218(1) of the Ontario’s Highway Traffic Act), and they can be arrested if they refuse. Of course, pedestrians or transit riders do not have these burdens.
The third area of restriction is regulation. When you drive you are subject to much more state regulation than when you walk or ride transit. The complexity and dangerousness of road traffic result in a web of rules of the road, some of which drivers customarily break giving the police a chance to curtail their freedom even more. Take highway speed limits, for example. Most drivers exceed the 100 km/h limit, and the police often ignore it due to enforcement costs or for other reasons. But it means that a great deal of drivers are offenders and subject to sanctions at the most unexpected moment. So not only do drivers have inherently less freedom, they often have even less freedom than they should because they routinely break road rules.
With all this state intrusion, lower privacy, and massive regulation, drivers are less free than pedestrians or transit riders. In fact, sidewalks are true freedom zones where you are free from state interference unless there is an emergency or reasonable and probable grounds that you committed a crime (which is a pretty high bar). And due to distances, a lack of transit, and the resulting reign of the car, small town or suburb residents may very well be less free than big city dwellers, with all other things held equal.
The British Columbia Court of Appeal is officially 100 years old! To celebrate they’re having an academic symposium in Vancouver. There is even a special BCCA 100th birthday website, where you can register for the events.
Although the official birthday was on January 4, 2010, the BCCA will have special sittings throughout April to commemorate this milestone in Vancouver, Prince George, Kamloops, and Kelowna. Special editions of BC Studies (published by UBC) and The Advocate (published by the Vancouver Bar Association) will be put out, as well as a book by Christopher Moore titled The British Columbia Court of Appeal: The First Hundred Years. A film titled 100 Years of the BC Court of Appeal will be broadcast on April 30, 7pm, on BC’s public educational network Knowledge, and if the trailer is any indication it should be a real zinger.
All in all it should be a great birthday celebration, very appropriate for a court that has really established itself over the last couple decades as a major player in the Canadian scene. Happy Birthday!
[Before being appointed to the Supreme Court, Chief Justice McLachlin sat on the BCCA]
How far can a government go to fight illegal migration? One government is flying right into uncharted territory if we are to judge by public reaction and media commentary. Arizona’s legislature is considering a bill that allows Arizona police to arrest people on a “reasonable suspicion” of their unlawful immigration status. Many groups ripped into the proposed law, and the head of the Los Angeles Roman Catholic archdiocese even compared it with “German Nazi and Russian Communist techniques.” Others defended the legislation citing high rates of illegal immigration in Arizona. The bill has several controversial provisions but let’s look closely at some detention powers it gives to the police. These changes can put Canadians lawfully travelling to Arizona at serious risk of detention.
Senate Bill 1070, also known as “Support Our Law Enforcement and Safe Neighborhoods Act,” allows the police to verify immigration status of a person, with whom they have “lawfully” come into “contact,” if they have a “reasonable suspicion” that the person is an illegal alien. The obvious interpretation of this provision is that the police will detain the person while they verify the status. This is clear from both the context of this provision and the purpose of the statute. The bill as a whole aims to ramp up enforcement of federal immigration laws. Its purpose is “attrition through enforcement.” The legislature hardly expects the police to release suspected illegals while they verify their status. Besides, the statute gives the police powers to turn illegal aliens over to federal authorities. It is hardly reasonable to expect Arizona police to let suspected illegals go while they check on their status. So verification will mean detention or arrest.
Bill 1070 sets out the following detention scheme. First, there must be a lawful contact between you and the police. Second, the police must form a “reasonable suspicion” that you are an illegal alien. Third, they must make a “reasonable attempt” to determine your “immigration status.” Fourth, if they can’t determine your status on the spot, they will contact the federal government. As you have already seen, the last stage will likely involve your arrest until the police hears from the federal immigration authorities.
A “lawful contact” with the police happens pretty much any time an officer can perceive you with his or her senses. If the officer can hear you, see you, or smell you, that’s a lawful contact, so it doesn’t even have to be a stop or a question. But if you’re driving, there are plenty of lawful opportunities to pull you over. Also, asking you a question is not unlawful but it’s a contact. All of that may give the officer enough information to form a “reasonable suspicion” that you are an illegal alien.
What information is enough for that “reasonable suspicion” is the crux of the matter. The proposed law prohibits relying solely on “race, color or national origin … except to the extent permitted by the United States or Arizona Constitution.” It means the police can rely on these factors as long as they are not the only factors. And what about accent? Dress? Religion? Apparently, these could be sole factors in forming a reasonable suspicion. Regardless of how the courts will interpret these provisions in the future, what matters is how front-line police officers will have the freedom to apply them. This article assumes you will be in the US lawfully, so if you are detained under this law, you will be eventually exonerated and released. But an extremely upsetting and arbitrary detention is bad enough so you should know the risks.
After detaining you on a “reasonable suspicion” of illegal status, the officer will make a “reasonable attempt” to determine your status. That’s also an interesting part. The bill lists IDs that will give you a presumption of lawful status on the spot. All of them (except maybe the “tribal” card) are US federal or state issued. Most Canadians, of course, do not require any US-issued ID like visas to travel to the US. So most Canadians in Arizona will have a Canadian passport or a Canadian province-issued enhanced driver’s license. That’s why most Canadians initially stopped under this bill will not be presumed to have lawful status in the US.
This will trigger a verification with the US immigration authorities and a potential longer, miserable detention of a Canadian who is in the US on a perfectly lawful basis. And all it takes is a “reasonable suspicion.”
Obviously, drafters of this proposed Arizona statute didn’t think about millions of Canadians who lawfully visit the US without any US-issued papers. They probably didn’t even know. And that’s why laws should be passed by or at least coordinated with people with relevant jurisdiction and expertise. Immigration should be the sole competence of the US Congress and the US federal executive. They would know about Canadians, but how long will random Canadians have to spend in Arizona custody before state authorities get hold of the feds, if this bill is passed? Perhaps, Foreign Affairs Canada should monitor this proposed legislation and issue an appropriate warning to Canadians if Arizona Senate Bill 1070 becomes law.
Some American law students are trying, with the launch of a new site.
Read more about it as the Wall Street Journal.