Property – Law is Cool The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 1338880 Ancient Iraqi Property Law Exam Fri, 04 Dec 2009 13:46:22 +0000 This riddle actually goes back to the Sumerian civilization, translated from ancient cuneiform:

Three ox drivers from Adab were thirsty: one owned the ox, the other owned the cow and the other owned the wagon’s load.

The owner of the ox refused to get water because he feared his ox would be eaten by a lion;
the owner of the cow refused because he thought his cow might wander off into the desert;
the owner of the wagon refused because he feared his load would be stolen.

So they all went.

In their absence the ox made love to the cow which gave birth to a calf which ate the wagon’s load.

Problem: Who owns the calf?

Abbreviated rendition via Reema’s My Random Thoughts, who places it at 1200 BCE (though that would definitely be post-Sumerian).

The original has several lines missing, so we don’t really know the Sumerians’ answer to this. Good thing you’re not being tested.

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Indefeasibility of title? Not that indefeasible in Kenya? Wed, 21 Oct 2009 18:25:30 +0000 First posted on Commercial Law International on Oct 15, 2009.

By Charles Wanguhu

The caveat emptor rule dictates that an individual seeking to purchase land should ensure that he is dealing with the rightful owner. Therefore upon inspection of the register kept at the ministry of lands, an individual seeking to ensure the ownership of land would request the registrar for an official confirmation of search, the advantage of the official search is that it is given priority registration over all other transactions for a period of 14 days from the issue of the search.

However in the Mau forest in Kenya the government aims to evict thousands of families who are said to be on forest land. This is despite the fact that some of the settlers have valid title for the property which was a result of excision of forest land by the previous administration. A similar operation in 2005 resulted in thousands of people being displaced and claims of human rights violations by the evicting forces.

The new administration however views the issuance of the titles as void as in their view they were illegally obtained from the former administration. However, under the Principle of Indefeasibility the title of an innocent Purchaser cannot be set aside, even by the claims of a previous rightful owner. This is so, because the Register of Titles is conclusive evidence of the Purchaser’s rightful ownership of the land.

In the case of Maathai & 2 others v City Council of Nairobi & 2 other 1994 a case in which the Nobela laureate Waangari Maathai sought to stop the sale of a piece of land by the city council the court in its deliberations held that:

Registration of Titles Act Cap 201 of the laws of Kenya which provides inter alia, that the certificate of Title issued by the Registrar to a purchaser of land upon a transfer shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the indefeasible owner thereof …. and the title to that proprietor shall not be subject to challenge.”

The Kenyan government while well intentioned in conservation of forests has opened a pandoras box and thereby creating uncertainty in dealings in land. By ignoring the indefeasibility of first registration land transactions have become a gamble. A commission of inquiry into illegal/irregular allocation of public land revealed that a number of foreign embassy and consulates are actually built on former public land. It would be interesting to see whether the government would take similar measures against these missions as they are attempting to do with the families in the Mau forest.

An AFRICOG report available here looks at some of the recommendations of the Commission of inquiry and looks at the possibility or impossibility in implementing the recommendations.

The legal meaning of private property, Conclusion Tue, 08 Sep 2009 12:53:14 +0000 Click here for Part 1

Our courts couldn’t find any protection of private property from government action in the Charter. You can say that you don’t care because people like Kenk and Chatterjee are bad guys, even if no court of law convicted them of any crime. It looks like a pretty smart idea to go after a bad guy’s assets when there is a chance some sleazy lawyer will get him off. It shouldn’t happen to us because we are not bad guys. Our stuff doesn’t smell of marijuana. But the Civil Remedies Act doesn’t just target people who smell like drugs. You only need to be in the wrong place at the wrong time or even let wrong people use your property to get caught by this law. The statute specifically allows the government to take property of mentally ill found not criminally responsible or of people who were acquitted or who weren’t even charged. Again, this law doesn’t require any specific crime or any specific victim. Your property only needs to be “tainted.” The reasons are noble but the net is wide, and it’s the breadth of the law that you should be worried about. The law doesn’t work with exceptions. It targets general categories.

Because laws apply to general groups of people and don’t include lists of good guys, we should always check them for potential abuses. But this case also gives us a good chance to see what private property means in Canada in general. Chatterjee’s lawyers threw all Charter sections they could think of at the Superior Court judge. All failed. They dropped two out of four on appeal. Still no luck. Finally before the Supreme Court of Canada, all Charter challenges to property taking by the government were abandoned. And there is a good reason for that. Our modern constitutional law does not protect private property. We need to know this to understand our government and our legal system and to plan our lives accordingly. The starting point in this understanding should be the question of what property is.

Property is not a thing, it’s a relationship, as they say in first-year law-school classes. Your car is your property because you are in a certain relationship with other people. This relationship gives you a right to exclude anyone else from driving your car. The other end of this relationship is that other people have a duty not to take your car without your permission. But the most important thing about this relationship that makes your car your property is that the government will enforce it. The police will charge a car thief with a criminal offence. The courts will convict him or will order him to return the car if he took it accidentally. The only reason your car is yours is because the government lets you have it. The government gives you a permission to keep your car and to exclude others. If the government decides to take its permission back, you lose your property or some part of it. For example, if a police officer needs your car in an emergency, he can lawfully take it from you. Or the Parliament can pass a law allowing the government to take all cars with a milage below 10 mpg catching your Hummer in the net. There is no legal limit to how the Parliament can change your property relationships through statute because there are no constitutional protections of private property in Canada.

That’s why Chatterjee’s Charter arguments failed so miserably. We do not have a right to property in Canada like we have a right to life, liberty, or security. And the Ontario legislature can’t just pass a law infringing on those three lightly like it can with property rights. The Charter forces the government to follow the principles of fundamental justice if it wants to imprison, kill, or endanger someone. The criminal process is extremely demanding on the government because of the Charter, and the Parliament can’t take these rights from us because it can’t change the Charter on its own. For these reasons, our rights guaranteed by the Charter are truly our rights. Everything else are just privileges granted by the government, including property and ownership. You can say that the government is not some evil organization to be feared and distrusted, and you will be absolutely right. Canada is a democracy but the democracy is nothing but the rule of a majority. The very reason we put some crucial rights away from Parliament’s reach is to protect them from the majority. History knows many examples when democratic majorities persecuted smaller groups of citizens.

For this reason, it’s important to know what rights are protected and what rights are not. The Ontario’s Civil Remedies Act is a good example of how our property rights in Canada are not protected from the government. The public should know this, even if there are many perfectly good reasons for this lack of constitutional protection. The public should know that our property is just a government’s permission to call some things “ours.” This permission is not permanent, nor does the government have to follow any special fair process to take this permission back. Still, Canada’s federal and provincial governments have traditionally respected the stability of property and ownership. Because private property is critical to the survival and prosperity of our country, there is no reason to believe that Canadians will support any Parliament that tries to change the status quo. But we should be watchful when it comes to small abuses, especially against our less fortunate citizens “tainted” with crime, because there is no Charter challenge that can help them.


The legal meaning of private property, Part 1 Tue, 08 Sep 2009 01:44:36 +0000 Do you think you own your car? If the government convinces a judge that it’s more likely than not that your car is “tainted” with crime, the court can let the government take it from you. No conviction, trial, specific victim, or even specific crime are required.  Ontario’s Attorney General asked the courts to let him seize a house and trucks of an alleged bike thief and drug dealer months before he could even stand trial. Another man lost thousands in cash and some personal property to the government because the banknotes smelled of marijuana. The government justifies this law by the need to fight crime and recover its costs. But the really interesting question for all of us is what property really means, do we have any true rights to it, and what the government can do to our property. Although these cases involved people who seem to be different from most of us, we should learn that ownership in Canada is really a permission from the government to have something, whether we are shady characters or law-school professors.

Igor Kenk had a bike store on Queen West in Toronto. One day cops staked him out. They saw money change hands after some guy cut locks on a bike and brought the bike to Kenk. They saw it twice, and then they arrested Kenk. After searching his store and other addresses connected to him, they found hundreds of bicycles, pounds of pot and some cocaine. The police charged Kenk with theft and possession for the purpose of trafficking. About 500 bikes were claimed after a public showing. The remaining 2292 bikes went to storage because no one showed up for them. Kenk was arrested in July, 2008. In October, the province gave him a notice that it would be applying to court for a forfeiture of his store, the bicycles, and his two pickup trucks under the Civil Remedies Act. Not only did he not have his criminal trial yet, but even his preliminary hearing will not be held until next March.

Kenk is not the first man to see his property slip to the government’s hands without any criminal conviction. Robin Chatterjee lost almost $30,000 in cash and other personal property without even being charged with a crime. All it took was the smell of marijuana coming from his things when the police stopped Chatterjee’s car for a minor violation. The police didn’t find any actual pot. When the Attorney General of Ontario asked the courts to let the government keep Chatterjee’s property, Chatterjee started a legal battle. He claimed the Civil Remedies Act was against the constitution. And he lost at every step of the way, including at the Supreme Court. But his case became a leading judicial decision on civil forfeiture—government’s taking of crime-connected property without compensation.

In many Canadian provinces, legislatures gave the government a right to take crime-connected property with a court’s permission. In Ontario, this right comes from the Civil Remedies Act. This law allows the government to take “proceeds” and “instruments” of “unlawful activity” without compensation. The purpose of the law is to compensate victims of crime in general and to recover costs of crime. Your property only needs to be associated with or “tainted” by crime to fall under the law’s sweep. The government doesn’t have to prove you committed any crime. It doesn’t have to produce any specific victim of crime. It simply must show to the court that your property is “tainted.” The standard of proof is more-likely-true-than-not, also known as the balance of probabilities.

The Chatterjee case ended up supporting the Civil Remedies Act. His lawyers started at the Ontario’s Superior Court by attacking the law on many fronts. They claimed that the province doesn’t have the power to pass a law that is essentially a criminal law. Under the Canadian constitution, only the federal government can do that. The court rejected this argument and said that a forfeiture to recover costs of crime and compensate victims is a matter of property and civil rights in the province. The lawyers also claimed that the law breached  four sections of the Charter. The Superior Court disagreed again. On appeal, Chatterjee’s lawyers dropped two Charter challenges out of four but still lost on all counts. The version of the case that reached the Supreme Court of Canada didn’t allege any Charter violations. All Chatterjee tried to claim was that Ontario overstepped its powers because the Civil Remedies Act was essentially a criminal statute designed to punish people. The SCC unanimously rejected the appeal. So, the Ontario law stands as it is.

Our courts made it clear that the Charter does not apply when the government takes our property to recover costs of crime, even if you didn’t commit any crime. What’s more, courts’ rulings show that the Charter does not protect our property from the government at all. First, the Charter doesn’t even mention “property.” Second, not a single Charter section Chatterjee relied on convinced the courts that the Charter could imply property protection. He tried sections 7, 8, 9, and 11(d). Section 7 guarantees us fundamental justice when the government tries to take our life, liberty, or security. Section 8 protects us from unreasonable search and seizure. Section 9 prohibits the government from arbitrary arrests. Section 11(d) guarantees presumption of innocence and a fair trial. The Superior Court held that s. 7 does not protect “economic interests.” It also said that even the stress and the stigma of losing your property under the label of crime are not enough to harm our “security” that s. 7 protects. As for s. 8, the court said it applies to privacy, not property. Section 9 was rejected outright. Section 11(d) didn’t fly because the court held that “civil forfeiture [did] not qualify as an offence.” So there was no presumption of innocence to protect or fair trial to guarantee.

Click here for conclusion.


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Housing discrimination Thu, 09 Jul 2009 03:34:15 +0000 Landlords trample on tenants’ human rights

(post sponsored by

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Reformed “Computer Terrorist” Kevin Mitnick Reflects on his Crime and Punishment Mon, 22 Jun 2009 21:16:14 +0000 kevinmitnickElinor Mills of has conducted an interesting interview with the famous hacker, Kevin Mitnick.

Beginning at 12-years of age, Mitnick primarily used social engineering to manipulate and gain unauthorized access to telecommunications networks; for example, to evade long-distance charges or access the speaker systems of fast food restaurants. In the late 70s, as his intellectual curiosity grew and telecommunications became digital, Mitnick began cracking computer networks and pursuing larger “trophies”.

In 1988, he was convicted for this activity and sentenced to 12 months in prison. During the subsequent period of supervised release, Mitnick hacked into Pacific Bell voice mail computers–then evaded the FBI for two and a half years.

Though Mitnick gained access to these networks and often stole code, he claims he never profited from these activities or caused damage to his victims beyond their wasted time and frustration. Nevertheless, at the time of his arrest, he was the most wanted computer criminal in United States history.

In 1999, Mitnick confessed to various counts, including wire and computer fraud, as part of a plea agreement. He was sentenced to 46 months in prison in addition to 22 months for violating the terms of his 1989 supervised release.

In the interview, Mitnick had this to say about his crime and punishment:

I served five years, and I ended up in solitary confinement for a year because a federal prosecutor told the judge that if I got to a phone I could connect to NORAD (North American Aerospace Command) and somehow launch an ICBM (Intercontinental Ballistic Missile). So the judge, reflecting on the movie War Games, put me in solitary confinement. I think it was a strategy they used to get me to plead out or cooperate. I was held for four and a half years without a trial. I spent a lot of time focused on the defense and reading cases and serving as assistant to my attorney. At the end of the day I realized justice is economic; unless you have enough money to properly mount an effective defense you always lose.

I wanted to admit that I was hacking, but the intention and the purpose of it wasn’t fraud because to commit a fraud you have to convert property to your own use and benefit, to profit. In my case that was lacking. I was doing it for the trophy. I was cloning my cell phone to random subscribers and dialing into computers from the cell phone. The purpose wasn’t to make free calls; it was to make it more difficult for the government to track me. They claimed all my hacking into those companies was a huge elaborate fraud and that I caused $300 million of damage. They said the value of property I copied, the R&D development cost, was $300 million. The government tried to use the old (definition of) loss for tangible property. If I copied that code and they no longer had use of it, it would be a $300 million loss or whatever.

They told my attorney that if I didn’t cooperate and plead out, not only would they take me to trial in Los Angeles, but they would put me in a revolving door of trials and put me on a bus and take me from federal jurisdiction to federal jurisdiction. So I signed the deal and admitted causing between a $5 million and $10 million loss. I signed it not believing it. I signed it to get out. I really don’t believe to this day that my actions caused that amount of loss, because none of the victim companies lost use of their code, they never claimed any losses due to my activities. Sure there were losses, maybe in the thousands of dollars, for their time to investigate who hacked into their systems and to secure them. Those are the real losses. But I was the example for the federal government, so they needed to put me away for a long time. That’s why I was very angry and bitter against the government at the time, because I wasn’t being punished for what I did. I was being punished for what I represented at the time. I have no qualms about being punished for what I did. The punishment should fit the crime.

Since his release, Mitnick has founded a successful security consulting company, published two computer security books, and lectured on the subject around the world.

Read the interview here.

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SCC: No Privacy Interest in Things We Throw Out Thu, 09 Apr 2009 18:11:22 +0000 Trash bag privacy (courtesy of Flickr: Steve and Sara)The Supreme Court of Canada today released its decision in R. v. Patrick, 2009 SCC 17, which concerns privacy interests in garbage and other abandoned items. The Court ruled that a police search of garbage abandoned at the curb does not require a warrant and can be done without violating the Charter.

Calgary police suspected that Mr. Patrick was operating an ecstacy lab in his house. Acting on this suspicion, the police attended at the house on six occaisions to retrieve and search through garbage bags, looking for any evidence of criminal activity.

The garbage bags had been placed inside garbage cans, which in turn had been left outside in a small shed for collection. The shed was on Mr. Patrick’s property, and the police had to reach over the property line to grab the bags.

As a result of these searches, police retrieved numerous incriminating pieces of evidence. The bags contained things like packaging for a digital scale, a receipt for muiatic acid, torn up chemical recipes, etc. Some of the items were contaminated with ecstacy.

Partly on the basis of the evidence collected in this way, the police were able to obtain a warrant to search Mr. Patrick’s home. After forcibly entering his home, they discovered precursor chemicals, scales, a pill press, and 2679 ecstacy pills.

Patrick argued that his section 8 Charter right to be free from unreasonable search and seizure had been violated.

The Court unanimously decided that it had not.

The central issue in the case was whether Patrick, by placing his garbage bags outside to be picked up by municipal garbage collection, had abandoned any interest in those bags.

Thus, the case was was essentially resolved as a property law question.

The majority cited R. v. Dyment, [1988] 2 S.C.R. 417 for the proposition that abandonment of an item automatically disposes of one’s privacy interest in that item:

In R. v. Dyment, [1988] 2 S.C.R. 417, La Forest J. treated abandonment as  fatal to a reasonable expectation of privacy.  He held that when an accused abandons something, it is “best to put it in Charter terms by saying that he [has] ceased to have a reasonable expectation of privacy with regard to it.”

[Patrick, at para. 22.]

Next, they cited R. v. Stillman, [1997] 1 S.C.R. 607 as standing for the same proposition:

In R. v. Stillman, [1997] 1 S.C.R. 607, McLachlin J., in dissent, but not on this point, stated that “[t]he purpose of s. 8 is to protect the person and property of the individual from unreasonable search and seizure.  This purpose is not engaged in the case of property which the accused has discarded.”

[Patrick, at para. 23.]

A finding that an accused person has abandoned an item seems, therefore, to be dispositive of any section 8 claim about that item. That’s a pretty narrow view of privacy.

Ironically, in Stillman, the seizure of a discarded tissue was held to have breached the accused’s section 8 rights. In that case, a young man was in custody at RCMP headquarters for five days. During the course of his detention, Stillman blew his nose into a tissue and tossed it out. The police retrieved the discarded tissue and obtained Stillman’s DNA.

The Supreme Court in Stillman focussed on the fact that the accused was in custody and had no real alternative to giving up his bodily samples:

[W]hen an accused person is in custody, the production of bodily samples is not an unforeseen occurrence.  It is simply the inevitable consequence of the normal functioning of the human body.  The police are only able to profit from the production of the samples because the accused is continuously under their surveillance.  For this reason it is somewhat misleading to speak of “abandonment” in the context of evidence obtained from an accused who is in custody. … In those circumstances, how can the appellant assert his right not to consent to the provision of bodily samples?  He would be required to destroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminating evidence on his person at all times in order to prevent the police from “retrieving” this “potentially useful waste”

[Stillman, at paras. 58-59.]

Why is the custody versus out of custody distinction so significant?

The reality of modern urban life is that the only realistic way to dispose of household garbage is through the municipal waste system. The production of household garbage is not an unforseen occurrence. It is simply the “inevitable consequence” of civilization. The garbage has to go somewhere. It is completely impractical (and probably illegal) to have to burn every piece of garbage that you want to keep private. Indeed, in Calgary, where Mr. Patrick lived, by-laws make it illegal to dispose of household garbage in any way other than by placing it in a waste container for collection.

Thus, whether you are in custody or at home, the waste you produce will eventually end up in the hands of the state.

(Incidentally, Calgary also has a by-law making it illegal to scavenge through someone’s garbage. The police violated the by-law, but I doubt whether anybody wrote them a ticket. Isn’t the existence of this by-law indicative of the important privacy concerns that we have in our waste? The majority dismissed the relevance of the by-law [Patrick, at para. 68].)

Despite recognizing the important privacy concerns with respect to the contents of a household garbage bag the Supreme Court simply could not get past the abandoment issue:

Residential waste includes an enormous amount of personal information about what is going on in our homes, including a lot of DNA on household tissues, highly personal records (e.g., love letters, overdue bills and tax returns) and hidden vices (pill bottles, syringes, sexual paraphernalia, etc.).  As it was put by counsel for the Canadian Civil Liberties Association, a garbage bag may more accurately be described as a bag of “information” whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle.  Many of us may not wish to disclose these things to the public generally or to the police in particular.

[A]part from the key issue of abandonment, the circumstances in this case favour the appellant. The police were trying to find out what was “happening inside a private dwelling, the most private of places” (Plant, at p. 302).  … The gathering up of the contents of the bags by the police provided them with a window into the appellant’s private life.

[Patrick, at paras. 30, 40; emphasis mine.]

So when exactly does household waste become abandoned such that the police can freely look into that window? The defence argued that the privacy interest in garbage should continue until the garbage becomes anonymous. The Court rejected this view outright:

The idea that s. 8 protects an individuals’s privacy in garbage until the last unpaid bill rots into dust, or the incriminating letters turn into muck and are no longer decipherable, is to my mind too extravagant to contemplate.  It would require the entire municipal disposal system to be regarded as an extension, in terms of privacy, of the dwelling-house.

[Patrick, at para. 54.]

Is that actually “too extravagant to contemplate?” Is the defence’s proposal such a bad idea? I certainly think that the personal items I throw in the trash ought to remain private until they cease to exist. I bet a lot of Canadians would agree with me. The municipal garbage system, to me, is like an Orwellian memory hole.

The Court concluded that the moment we toss our garbage bags to the curb, our privacy interest in the contents of the bags is at an end. It doesn’t matter if the garbage bags are on your side of the property line. It doesn’t matter if you take pains to drive your garbage bags all the way to the dump site. The majority held that:

Given the “totality of the circumstances” test, little would be gained by an essay on different variations of garbage disposal.  To take a few common examples, however, the rural people who take their garbage to a dump and abandon it to the pickers and the seagulls, the apartment dweller who unloads garbage down a chute to the potential scrutiny of a curious building superintendent, and the householder who takes surreptitious advantage of a conveniently located dumpster to rid himself or herself of the “bag of information” are all acting in a manner inconsistent with the reasonable assertion of a continuing privacy interest, in my view.

[T]he appellant had abandoned his privacy interest in the contents of the garbage bags gathered up by the police when he placed them in the garbage alcove open to the laneway ready for collection.  The taking by the police did not constitute a search and seizure within the scope of s. 8, and the evidence (as well as the fruits of the search warrant obtained in reliance on such evidence) was properly admissible.

[Patrick, at paras. 64, 73.]

There was a brief concurring opinion by Justice Abella. Though she did not believe that a Charter breach had occurred in this case, her focus was not on the abandonment issue.

Abella J. found that abandonment alone should not automatically leave household waste open to police scrutiny.  She was concerned that under the majority’s approach, the police would have unrestricted access “to information most people would never expect to be publicly accessible.” In her view, a person has a diminished, but not extinguished, expectation of privacy in respect of garbage which has been abandoned [Patrick, para. 90].

Given that there was some expectation of privacy, this expectation would have to be balanced against the legitimate interests of the state in investigating crime.  Abella J. did not believe that prior judicial authorization in the form of a warrant would strike the appropriate balance.  Instead, she felt that police must have a reasonable suspicion. “Reasonable suspicion” was not defined in the judgment, but it usually refers to some articulable grounds for believing that a crime has taken place. It is more than a mere hunch, but something less than reasonable and probable grounds; a fairly low threshold.

“[I]n my view, with respect, the privacy of personal information emanating from the home, which has been transformed into household waste and put out for disposal, is entitled to protection from indiscriminate state intrusion.  Such information should not be seen to automatically lose its “private” character simply because it is put outside for garbage disposal.  Before the state can rummage through the personal information from this ultimate zone of privacy, there should be, at the very least, a reasonable suspicion that a crime has been or is likely to be committed.”

[Abella J., concurring, in Patrick, at para. 77.]

Certainly when we throw our garbage out we are giving up a proprietary claim to it. But I think that our proprietary claim has to be treated as distinct from our privacy interest. I think it’s an inherent expectation of Canadians that what we throw out will be free from scrutiny by other members of the public, and certainly by the state.

Abella J.’s decision is much more compelling in that it recognizes a legitimate (though diminished) expectation of privacy in things we throw out.

Unfortunately, today’s majority decision significantly abrogates our privacy rights in this country.

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Collective Licensing – a Solution to Copyright Lawsuits? Sun, 08 Mar 2009 17:09:46 +0000 There has been increasing talk about voluntary collective licensing of media on the internet and it seems that at least some music labels are open to embracing it, albeit in limited ways. There is some opposition too.

The voluntary collective licensing solution, whereby a body collects a levy from all interested parties (in this case university students) and redistributes that money to record labels and artists, is a welcome step forward from the current (failing) strategy of litigation against those accused of copyright violation on the internet. The basic premise of the approach is what organization such as EFF have been advocating for some time, which is the legalization of distribution of copyrighted content on the internet (i.e. filesharing).

From an economic perspective, the creation of such content needs to be encouraged, so the content needs to be somehow protected…or does it? The only thing that has to be ensured is that those that create the content are fairly rewarded for it in accordance with the principles of perfectly competitive markets (most notably, no extra-normal profits). Schemes such as volutary licensing should ensure that content flows while people who create that content get fairly compensated.

If copyright holders still wish to generate extra-normal profits, they must take steps to create and market scarcities. In the past, this scarcity came in the form of on-demand performances (recordings of artists that can be viewed or heard on demand by the user). Now that these recordings may be freely distributed and copied, they are no longer scarce.

So what is scarce? Items and experiences demanded by fans and followers of given content (e.g. fans of musicians, movies, directors, actors, etc.). Merchandise (t-shirts with band logos for example), special interviews with directors, concerts, backstage access at concerts, special authentic album inserts, autographs, and other such opportunities are in great demand, cannot be copied and are entirely controlled by content owners and copyright holders.

If copyright holders were to make the bulk of their money off resources that are scarce, they may even find it profitable to give abundant content which is easily copied away for free and drum up demand for scarcities that they control. In this case, issues like voluntary licensing (and litigation) won’t even come up.

Lord of the Rings as Property Law Sun, 30 Mar 2008 00:28:02 +0000 by Omar Ha-Redeye and Jacob Kaufman
(from the March Issue of Nexus, Western Law’s Student Newspaper)

Lord of the RingsThe novel The Lord of the Rings was a phenomenon. The movie trilogy based upon it has grossed over a billion dollars and won a slew of Oscars.

But what’s really interesting about the work is that it is about property law.

Seems Like a Property Exam

Consider the following facts which seem ripped from a first year property law exam:

  1. Sauron holds ownership in the Ring through accession, by working one thing (base metals) into a new thing (a ring of power)
  2. He is dispossessed by Isildur, who now holds possession in the Ring.
  3. Isildur loses the Ring (he has a manifest intent to exclude others but no physical control) when it slips off his finger as he was swimming in the Anduin river to escape from Orcs.
  4. Déagol finds the Ring.
  5. He is dispossessed by Sméagol (a.k.a. Gollum).
  6. Gollum loses the Ring and it is finally found by Bilbo.
  7. Bilbo gifts the Ring to Frodo. Later, Aragorn (the heir of Isildur) tells Frodo to carry the ring to Mordor, making Frodo his bailee.
  8. Sam, assuming that Frodo is dead, takes the Ring according to instructions to help Frodo with the Ring in grave circumstances. Sam is acting here as a (fictional) bailee and he returns possession to Frodo after finding him still alive.
  9. At the end of the book, Gollum restores his possession of the ring. Seconds later, he and the Ring are both destroyed. At this point all property held in the Ring disappears.

Hierarchy of Ownership and Possession
The Lord of the Rings story is that of a property hierarchy with one owner and a series of possessors.

Bilbo states,

[The Ring] is mine isn’t it? I found it.

He seems to be laying a claim of ownership through finding. But finding only lets a finder hold possession in a thing. It does not extinguish the rights of those higher up on the hierarchy.

In Anderson v. Gouldberg it was found that “possession is good title against all the world except those having better title.” It does not matter that several of the possessors of the Ring like Isildur and Sméagol obtained possession by violently dispossessing others. That circumstance does not change the dispossessor’s rights vis-à-vis a third party.

The fact that all parties subsequent to Sauron hold only possession in the ring is acknowledged in the text. When Gandalf forces Bilbo to give up the Ring, he tells him to,

[s]top possessing [the Ring].

After discovering that Aragorn is the heir of Isildur Frodo exclaims that the Ring really belongs to Aragorn. Aragon corrects him:

It does not belong to either of us, but it has been ordained that you should hold it for a while.

Frodo later elaborates that the Ring,

does not belong to any mortal – though if any could claim it, it would be Aragorn.

Here he demonstrates his understanding of the property hierarchy – with Sauron at the apex as owner and Aragorn as next highest as a descendent of the first possessor after Sauron.

Aragorn’s Claim

What claims can Aragorn make that he is the rightful owner?

Isildur claimed the Ring as weregild for the death of his relatives at Sauron’s hand.

As Professor Gwen Seabourne notes this is,

compensation for the kin of the slain in respect of a (wrongful) killing.

If a claim in weregild is upheld then Aragorn would hold ownership of the Ring. The Ring, however, is shown to have Animus Revertendi as it seeks to return itself to Sauron.

Would this cut against a transfer in weregild? Canadian Courts have, so far, not ruled on how the intrinsic characteristics of magical items demonstrate who holds what property in them.

Another claim that Aragorn could make is that Sauron’s ownership of the ring elapsed due to abandonment.

Simpson v. Gowers defines abandonment as a “giving up, a total desertion, and absolute relinquishment.” Sauron did believe that the Ring was gone forever, which would support the idea that an abandonment occurred.

Asessing a Claim of Abanonment

Stewart v. Gustafson sets out four factors to further help determine if property has been abandoned:

  1. Passage of Time: As the years go by, the likelihood of abandonment increases. In this case 3000 years passed, which is a not insignificant lapse of time.
  2. Nature of Transaction: Certain transactions lend themselves more to assuming abandonment, having objects cut off your hand does not appear to be one of them.
  3. Property Holder’s Conduct: Abandonment can be inferred if a property holder does not try to require possession a reasonable time after receiving notice. After finding that the Ring was still attainable, not only is Sauron trying to retake possession but he is described as “seeking it, seeking it, and all his thoughts [are] bent on it.”
  4. Nature of the Thing: As the value of a chattel increases, the likelihood of inferring abandonment decreases. The extreme value of the Ring (it could be used to conquer all Middle Earth) cuts against an abandonment. The specific nature of the Ring also cuts against abandonment. Gandalf specifically states that “[the Ring’s] keeper never abandons it”.

It appears to be that the evidence points to no abandonment having occurred.

However, it seems likely that 3,000 years well exceeded the limitations period.

Therefore, Sauron has lost his right to legal recourse.

As far as Canadian law goes however he would still have a self-help remedy, which he apparently exercised by sending the Nazgûl to seize the ring.


In addition to the primary property dispute over the ownership of the Ring, there are several other conflicts over property in the Lord of the Rings, such as the claim of Rohan’s neighbors that the Riders wrongfully disposessed them of their land, the conflicting claims to ownership of Moria as between the Dwarves and the Balrog, and Aragorn’s claims to inherit the lands and other property of his ancestor Isildur. The chapter on “The Scouring of the Shire” with its scathing portrayal of Saruman’s “Gatherers and Sharers” and Saruman’s nationalization of industry is a thinly veiled attack on socialism. None of this is to say that Tolkien was some kind of libertarian. He hated modern industry and capitalism. But he did have a conservative traditionalist’s attachment to private property, and it comes through in the book at many points.

Adam Parachin This is a reformatted article from a previous post. Acknowledgement is provided to Prof. Adam Parachin, who teaches first-year Property at the University of Western Ontario for the initial inspiration of these posts.

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Unconscionable Organ Donations Mon, 11 Feb 2008 01:49:21 +0000 “Dr. Horror” Captured

An internationally wanted physician from Brampton, Ontario, was caught in Nepal last week.

Dr. Amit Kumar was wanted for harvesting organs from poor Indians, usually sold to more affluent people, including international citizens.

An Ethical Debate

The Kumar incident has sparked an ethical dialogue over organ donation.

Andrew Chung of The Star states,

Some libertarians would say that as individuals, we should be able to choose, if we so desire, to sell one of our two kidneys. It’s my kidney, after all, and I can do what I like with it.

Chung quotes Michael McDonald, of the W. Maurice Young Centre for Applied Ethics,

It’s not just another piece of property that we own, like a watch…

Who owns the body? There are just some things that are not to be bought or sold, not marketable quantities.

Chung also cites Leigh Turner, McGill University professor at the Biomedical Ethics Unit,

If a decision is uncoerced, if no one’s forcing you, you should be in a position where you can make the choice and live with the consequences…

But once you add poverty and real inequality to the mix, suddenly choice and autonomy starts to look a lot murkier.

Leigh’s last point refers a form of procedural unconscionability, a classical concept in the equitable courts of common law used to protect vulnerable parties. Equity was distinguished from the rest of common law by its intense focus on ethical issues to achieve justice.

Using the case of Dr. Kumar can help illustrate some of the principles of this equitable doctrine.

Defining Procedural Unconscionability

Procedural unconscionability is a type of equitable fraud, not involving a misrepresentation of facts, but rather through the conduct of one party in obtaining assent.[1]

Conduct is evaluated by examining whether parties meet on equal terms, and if they were taken advantage of as a result.[2]

The court can consider this a form of equitable duress which can produce an unfair result and therefore set aside to avoid perpetuating injustice.[3]

In addition to the reasonableness, the court will look at how equitable a transaction is, and how conscientious the other party is.[4]

Unconscionability therefore does not require deceit, and can be caused by distress, recklessness, wildness, or carelessness. [5] The characteristics of the relationship between the parties are also inconsequential for the purposes of unconscionability.[6]

Two Elements of Unconscionability

The presumption of fraud is established through a proof of inequality of bargaining power, and an undue advantage or benefit that impairs the weaker party from protecting their own interests.[7]

This can commonly occur between two parties where one is astute in business, and the other is older and vulnerable, and the former use their power over the other to their advantage.

Elements identified as criteria for vulnerability include ignorance, need or distress.[8]

Community Standards Test

Despite their interests in protecting vulnerable parties, the court does encourage to take responsibility for their own lives and decisions.[9] This balance is achieved by looking at the broader context in which the contract occurs through a community standards test.

A British Columbia Court of Appeal case found that a transaction between a businessman and a Native fisherman was unconscionable, and rescinded it as it impugned commercial realties.[10]

This has been followed by courts in other jurisdictions, specifically looking at the tactics used to obtain the contract. A more recent case from the B.C. Court of Appeal affirmed the use of the given views of a community,[11] but the dissent preferred assessing only if it was fair, just and reasonable.[12]

Awareness of Party
Another element of unconscionability is the potential need for the stronger party to be aware of the other’s vulnerability.

Canadian courts are largely silent on this issue, but the current status is that it is not considered material whether the stronger party was unaware of the other’s weakness, or even if they had no notice or indication that such weakness might be present.[13]

Procedurally Unconscionable

Harvesting organs from poor people in India obviously relies on immense inequalities in bargaining power. The benefit received from by the donee is claimed to be offset by the substantial amount of compensation provided to the donor, which is even more significant when Westerners pay in their funds. But Turner also stated,

Some of the poorest people on the planet, can they really be making an autonomous choice that by not selling the kidney they can’t buy food to eat? It’s really not a free choice of any kind.

It’s also important to note that some of the harvestees were explicitly unwilling, and all of the cases expressed signs of economic disadvantage. Dr. Kumar would have known of the obvious inequality of bargaining power between himself and the impoverished persons of India, irrespective of this issue in different jurisdictions.

Although libertarian ideology seeks to maximize the rights of the individual, in many instances – including this one – it surpasses legal constraints. The criteria in this case and the standards of the international community at play all make this type of exploitation unconscionabile.



[1] CIBC v. Ohlson (1997), 209 A.R. 140 at para. 20.

[2] Wood v. Abrey (1818), 56 E.R. 558 (Ch.).

[3] Stewart v. Canada Life Assurance Co. (1994), 132 N.S.R. (2d) 324 at 334 (N.S.C.A.).

[4] Campbell v. Campbell (1990), 83 Nfld. & P.E.I.R. 340 at 349 (Nfld. U.F.C).

Stel-Van Homes Ltd. v. Fortini (2001), 16 B.L.R. (3d) 103 at paras. 125-127 (Ont. S.C.J.).

[5] Waters v. Donnelly (1884), 9 O.R. 391 at 401-402 (Ch.).

[6] Black v. Wilcox (1976), 12 O.R. (2d) 759 at para. 196 (C.A.).

[7] Bank of Credit & Commerce International v. Aboody (1990), 1 Q.B. 923 at 924 (Q.B.D.).

[8] Supra note 3 at para. 4.

[9] Pelech v. Pelech (1986), 1 S.C.R. 801 at para. 85.

[10] Harry v. Kreutziger (1978), 95 D.L.R. (3d) 231 (B.C.C.A.).

[11] Gindis v. Brisbourne (2000), 183 D.L.R. (4th) 431 (B.C.C.A.) at paras. 23-27.

[12] Ibid. at para. 35. Though upheld at the Supreme Court of Canada, the distinction between the two tests and which of the two was superior was not reviewed.

[13] Marshall v. Canada Permanent Trust Co. (1968), 69 D.L.R. (2d) 260 (Alta. S.C.).