RSS FeedPodcast: Chris Bredt and BLG Climbing a Mountain (Episode 25)
In this podcast Omar Ha-Redeye speaks to Christopher Bredt of Borden, Ladner, Gervais LLP about his plans to clime Mt. Kilimanjaro, the tallest mountain in Africa.
Bredt will be accompanied by partners in his firm, Sean Weir, Shelley Munro, William Carter and Michael Smith.
The climb is a fundraiser for the Canadian Organization for Development through Education (CODE). You can donate to the climbers directly through the CODE climbers page.
For more on CODE, see the video below.
Devin Johnston, who has been running the podcasts here recently, is now articling. Current and incoming students interested in taking over these responsibilities can contact us directly.
The stakes of copyright reform
Not many government bills cause so much debate as C-32—the legislation to amend Canada’s Copyright Act—introduced on June 2, 2010. One of C-32’s most contentious innovations is a complete ban on bypassing digital locks on electronic content. James Moore, a federal Minister, said that C-32 offered “a common-sense balance between the interests of consumers and the rights of the creative community.” But his opponents believe Moore’s “common sense” will empower copyright holders and take away traditional rights of consumers.
C-32 is not the first attempt to revise Canada’s Copyright Act. The most recent reform effort began during the previous federal government in 2005. C-32 predecessors, Bills C-60 and C-61, died as a result of a collapsed government and a dissolved parliament. Many opposed the reforms, and Michael Geist, a University of Ottawa law professor, became an intellectual leader of the protest movement.
The government has said the current law is outdated. One letter sent to constituents mentioned that “Canada has been placed on piracy watch lists and our intellectual property protections are compared with those of countries like China, Russia and Dubai.” The government justified the reform by the need to comply with international treaties that it signed on behalf of Canada. There are also allegations that the Canadian government acted under pressure from the US government and the copyright lobby.
This reform will decide issues that ultimately concern everyone. Copyright is an exclusive right to copy or distribute a work. The flip side of someone’s copyright is everyone’s duty to respect it by not copying or distributing the copyright holder’s work without permission. Pretty much any original product of human expression is a work protected by copyright, including movies, music, books, and even your emails.
Copyright’s prohibition on copying would be draconian if some exceptions didn’t exist. Traditionally, “fair dealing” is one. The law has entitled us to copy parts of someone’s work for criticism, review, study, or similar activities. Just like copyright is a right of content owners against content consumers, fair dealing is a right of consumers against owners. Quoting from books, showing films clips, playing song excerpts, photocopying a few pages from a journal are essential to the development of arts and science and to our self-reflection as a society. If we can’t copy anything, we can’t spread information, and curbing the flow of information with constant payments to copyright holders will curb ideas and free expression. Fair dealing is important, and it is our right.
Copyright owners’ or their partners use technological protection measures (TPMs) to limit our right to fair dealing. They can encrypt their content so we can’t copy it. Most DVD films are an example. Owners can use proprietary formats that only sanctioned technology can access. Amazon does it with its e-books, which only Amazon Kindle can open. Hardware makers can restrict their devices to accept only permitted content. Apple screens each and every iPhone application before allowing it into its App Store.
You would expect the law to protect our traditional rights to fair dealing in those cases. And in some countries, to take the example of mobile phone locks, the law regulates or prohibits this practice. But in most countries, including Canada, the law doesn’t stop copyright owners or their partners from locking content or devices up. Such locks would make the right to fair dealing meaningless if circumvention technologies didn’t exist. They allow consumers to bypass digital locks on electronic content.
The big deal about C-32 is that it bans circumvention under penalty of fines or jail. Not only does C-32 ignore TMPs’ gutting of fair dealing rights, but it also punishes those using circumvention for fair dealing. C-32 turns consumers’ fair dealing rights into privileges granted at copyright owners’ discretion. If owners choose to unlock their content, fair dealing is possible. If they use TPMs, it’s not. If C-32 is passed, the independent statutory right to fair dealing will cease to exist.
Some people use circumvention to make illegal copies of movies, music, software, etc. But to choke a long-established right because the entertainment industry loses profits is an overkill. Go after illegal distributors, strengthen enforcement of existing laws but don’t give the copyright lobby powers to regulate fair dealing. Do we as a society want to give so much control over information flow, and by extension essentially over thought and expression, to an industry group?
(Post sponsored by AdviceScene)
Welcome to America?
Canada Needs More Immigrants
Canada needs to triple it’s population to 100 million, according to Irvin Studin in Global Brief,
At 34 million people, Canada today finds itself living the latter two realities. Canadians largely fancy themselves citizens either of a ‘small’ or, at most, a ‘middle’ or ‘principled’ power. There is little state or collective ambition to use strategic levers to be a player of any consequence in international affairs, and even less national cognizance that, with the requisite political acumen and chutzpah, the levers of strategic power available to Canada to be a driving force in the grand anarchy of international affairs are very considerable. A justified national self-confidence does reign, however, in the capacity of Canada to lead the world – or to be among the world’s leaders – in largely internal matters of federalism, human rights and the integration of the outsider – immigrants, of which Canada, on a per-capita basis, takes in the most in the world – into the national fold. And while Canada may on occasion serve to other countries as a gold standard of strong domestic governance, its patent weakness lies in its incapacity, and general national disinclination, to actually export (with intent, or purpose) this model or any associated Canadian instruments of influence…
It stands to reason that Canadians and the Canadian state have seldom seen population or demographics in strategic terms; that is, they are wholly insensitive to the idea of growing the national population in order to directly increase Canadian impact in international affairs. Many have forgotten that much of the original populating motive of the federal government in the late 19th and early 20th centuries had a clear sovereignty motive (yes, a strategic motive) vis-à-vis potential American encroachment into Canadian territory (particularly in the West). That strategic logic was almost inexorably, and with great rapidity, subordinated to a modern economic rationality – ever dominant today – that holds that Canadian population growth should be a function principally – if not exclusively – of the national need for new labour; specifically, in this early 21st century, new labour to replenish an ageing work force. Domestic considerations, and only domestic considerations, win the day.
That a far larger national population could give Canada greater weight in international affairs is – to the bemusement of many cold-blooded external analysts of the country – nary a line of reasoning that enters the national imagination. Regarded as radically absurd on the economic logic (for where are the jobs?), it may be regarded as wholly irresponsible and reckless on the social logic (for how is a country to absorb or integrate immigration waves that, over time, outstrip even the total current incumbent population)?
A national population of 100 million – three times the current Canadian population – is a symbolic quantum. It could very well be 85 million or 130 million and yield the same desired effects. And these effects would be pincer-like: first, a far larger demographic base to build strong national institutions and structures (east-west-north-south) across the vast territory of Canada – institutions that, while today often absent or weak, would eventually serve as a bulwark for international strategic influence; and second, a far larger talent pool to populate the strategic arms of the Canadian state – the military, diplomatic, general civil service and political branches of government – as well as connected sectors and organizations (business, cultural, educational, scientific) in Canadian society at large. In the process, the Canada of 100 million, through the force of new domestic structures, coupled with growing international impact (and prestige), undergoes an evolution of the national geist – one arguably appropriate for this new, more complicated, more international century. In short, Canada becomes a serious force to be reckoned with.
Hate Crimes Still Rising
Statistics Canada released the figures for 2008 hate crimes today, which shows an increase from previous years.
Blacks are the racial group most targeted, out of reported crimes, and Jews are the most targeted faith.
Copyright reform in Canada: Op-Ed
Industry Minister Tony Clement knows only one way to write copyright laws for the country: heavyhandedly … Read the entire June 11th commentary at the Vancouver Sun
‘If I Had a Billion Dollars’ I’d Build Toronto a Lake
Featuring Jennifer Smith and Lesley Stankaitis. Read about it at The Star.
Attorney-Tron
Source: Cyanide and Happiness (a favorite comic of mine).
Family Matters: Intro Episode
Being a lawyer had better be Awesome!
Marshall from How I Met Your Mother sings about law school.
World Institute for Research and Publication (WIRP) Presentations
I presented a couple papers this morning at the Annual Meeting of the World Institute for Research and Publication – Law. You can read more about the conference over at Slaw.
The presentations, with audio and complete papers, are available on the WIRP site, or on SlideShare below:
Full Paper: Media Narratives in Times of Turmoil: Depictions of Minorities in Canada Post 9/11
Full Paper: Admissibility of Alcohol and Gaming Commission of Ontario Reports
New Roadside Alcohol Suspensions: Bill 203 Explained
From Simon Says: Providing relevant information on policing and law
On May 1, 2009, amendments to the Highway Traffic Act (Sections 41-48) came into effect, as did three new Ontario Regulations (403/08, 405/08, and 407/08), as part of Bill 203, the Safer Roads for Safer Ontario Act.
Although we have just passed the one year anniversary of the legislation coming into force, there still seems to be a great deal of confusion about it. The purpose of this article is to dispel any remaining confusion over this legislation.
The purpose of this aspect of Bill 203 was to increase the penalty for drivers who blew in the “warn range” for blood alcohol concentration (B.A.C.), from what was then a 12 hour licence suspension to an escalating 3, 7, or 30 day suspension, with additional consequences.
These amendments did not change the B.A.C. level which qualifies as a “warn”, as some people have come to believe. This seems to be the most prominent misconception about Bill 203. The “warn” limit was, and is still, .05 to .08 B.A.C., or 50 to 80 milligrams of alcohol in 100 milliliters of blood. Under .05 B.A.C. is legal, unless you have a graduated Class G or Class M licence (G1, G2, M1, M2). Over .08 B.A.C. is, of course, illegal and qualifies you to be arrested and charged with Over 80 under Section 253 of the Criminal Code.
I encountered this mistaken impression about the “warn” level a great deal when I was on patrol after Bill 203 was enacted. I believe that the confusion stemmed from the wording used to advertise the new penalties. In print and on television, advertisements warned of “New roadside suspension for people who blow a .05.” Many people took this to mean that the limit had been lowered and people would now have their licence suspended for blowing a .05, however, that was always the case and the only thing that was new was the length of the suspension.
Prior to Bill 203, when police administered a roadside screening device to a driver who blew a “warn”, that driver got their licence seized by the police for 12 hours, after which time they could attend the police station and get it back. These suspensions were not recorded on a person’s driving record and there were no additional penalties or consequences. If a person drove during this 12 hour window they were technically driving on a suspended licence. However, it is not likely that anyone would know, except the officer who seized their licence, since the suspension was not recorded to CPIC (the Canadian Police Information Center), which any police officer can and would check during a traffic stop.
Now, under the new amendments, a driver blowing a “warn” will automatically have their licence suspended for 3 days and there are escalating penalties for repeat offenders. If a driver blows a “warn” again within 5 years, their licence will automatically be suspended for 7 days. If a driver blows a “warn” a third time, within 5 years of the second time, their licence will be automatically suspended for 30 days.
Since these suspensions are more than 12 hours long, they are entered onto CPIC for their duration, which allows any officer encountering the person in that time frame to know that their licence is under suspension. These suspensions are issued on the authority of the police officer, at the roadside and the authority extends to international driving permits and licences of other jurisdictions, as well as Ontario licences. This new legislation notwithstanding, police can still suspend the licence of a novice driver who has a blood alcohol level under .05 using the old 12 hour procedure.
If caught driving during this time on a suspended licence, a person can be subject to a fine of up to $5,000 and 6 months in jail. In my experience, Justices of the Peace do not take kindly to people driving when they have been told not to and jail time is not uncommon for this offence, even though it is only quasi-criminal.
The additional consequences for blowing a “warn” are as follows. Upon the second suspension, the driver will be required to complete a remedial alcohol program with the Ministry of Transportation and their licence will automatically be suspended indefinitely if they fail to complete the program. Upon the third conviction, the driver will be subjected to the remedial program again as well as to an ignition interlock condition on their license for a minimum of 6 months after their license is reinstated. This means that they are required to have an ignition interlock device installed in their vehicle and they are prohibited from driving any vehicle not equipped with one. Fines for violating ignition interlock conditions can be up to $1,000.
Another new consequence for blowing a “warn” is that, once the suspension is lifted, the person is required to pay a $150 reinstatement fee to the MTO to get their licence reactivated. This was not the case with the 12 hour suspensions, since the licence was not officially suspended with the MTO, it was just held by police for 12 hours.
One interesting feature of Bill 203 is the addition of Section 48 (9) to the Highway Traffic Act, which explicitly states that, “There is no appeal from, or right to be heard before, the suspension of a driver’s licence under this section.” This section has been greatly contested by some, who feel that it violates the rights guaranteed under Section 11 (d) of the Charter, “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” Since there is no trial process for licence suspensions, and no right to appeal, the police officer is, in effect, judge, jury, and executioner, convicting and carrying out the sentence themselves.
I believe that the only reason this particular feature was permitted to be passed is because, unlike an actual charge, a licence suspension carries no direct punishment. Although there is a great deal of inconvenience associated with it, there is no fine or other consequence for receiving a roadside suspension.
There is no indirect punishment for it either, since, according to a Financial Services Commission of Ontario bulletin, insurance companies cannot use an Administrative Driver’s Licence Suspension (ADLS), which is less than one year in length, in their risk classification system, which is what primarily determines your premiums. An ADLS is any suspension not associated with a conviction in court for a driving related offence, thus all of these suspensions qualify.
Perhaps to balance out this somewhat restrictive feature, Bill 203 also included the addition of Section 48 (6) of the Highway Traffic Act, which states that a driver now has the right to demand an officer provide them with a second opportunity to provide a breath sample, with a different roadside screening device or a breathalyser machine at the police station, to verify the accuracy of the first reading. The inclusion of the breathalyser machine at the station is important for anyone who wants absolute verification that the police are being honest with them, since the breathalyser machine prints out a record of the breath sample showing the B.A.C.
This section does come with one caveat, however: the second reading stands. If the second reading is under .05, the driver does not receive a licence suspension. If the second reading is also a “warn” they do. But, if the second reading is a fail, the person is arrested for Over 80. It is good to know your rights if you are in this situation, but be wary if you are going to demand a second sample! Unlike breathalyser samples for people arrested for Impaired Driving or Over 80, there is no specified minimum or maximum time between samples, however the driver must make themselves readily available for a second sample. They cannot delay while they wait for the B.A.C. to drop.
The rationale behind this legislation is to denounce driving with a blood alcohol level which could affect a driver’s ability to operate their motor vehicle safely, putting themselves and the public at risk. It is up to you to decide whether you think it accomplishes this goal and whether there may be a better way of doing it. I invite you to post your thoughts in the comments section and, as always, please feel free to share the link to this article on your forums and other social media outlets.
