Tag: Law

Unbelievable

I keep thinking I have posted my last post this Saturday morning, this is simply stunning and has to be noted:

“Ever since I was there [in 1998], there was a guy who told us that one cafeteria was for whites, one was for black.” But his eventual complaints, along with those of three other black workers, led to a damning decision recently by Quebec’s Human Rights Tribunal against Centre Maraîcher Eugène Guinois Jr., one of Canada’s largest commercial vegetable farms, located about 40 minutes southwest of Montreal. In her 32-page report, Judge Michèle Pauzé said she was “stunned, even scandalized” by the racism, neglect and segregation that took place at the 1,300-acre farm where Mr. Michel and scores of other black workers were hired to pick and process vegetables. The judge was so shocked by the case that she prefaced her decision with the phrase, “The events you are going to read happened here, in Quebec, during the years 2000 and 2001.”

While the Globe and Mail, instead of invoking the US south, could have as easily said this sad story sounded like something out of the segregationist elementary schools of forty or fifty years ago in my Nova Scotian hometown or the segregated movie theatres there then, too, the point is the same. Read the whole story and check the labels in your vegetable drawer.

Political Theatre Of The Mind

[Special Notice from Editor: it ain’t me.]

It has been a rare day of political scaredy-cat-ism thoughout the realm that could be called the poli-blogs of Canada. Within 24 hours of a few posts like mine on Sunday morning there were some amazingly dimwitted calls for the defence of democracy [Ed.: “toot-ta-tooooo!!!” go the horns!!! To the pea and asparagus harvesters, everyone!!!] because a commission judge ordered a publication ban. Throughout every legal system – even in the USA – there are plenty of instances of secrecy: US grand jury, Canadian trial jury, judicial privilege, solicitor-client privilege, settlement privilege, etc., etc. Some see sense – some know fear – some are just a wee bit off near the end. A publication ban to protect the fairness of a future trial is part of the same continuum and has existed for as long as we have been free. Society works because we have courts and courts work because we have lots of secrets – short term, long term, in theory or enforced by jail time. It is the way the world works…except no one told half the bloggers.

I think it has to do more with the change of the clocks for spring. Some people need a nap.

Update: How could I have been so horribly wrong. Here they are taking Jim Elve, ringleader at Blogs Canada away. Oh well.


Make sure the guys know where to
send the cookies…

Secret Testimony

Much fur is flying this morning on the publication on a US blog of what is stated to be one single source’s take on the secret testimony heard last week before the Gomery Commission. I will not [Ed.: …could not, would not in a boat; could not would not with a goat…] link to it but the canny Googler might do well to consider words that rhyme with “Baptains Borters”. Nothing new in this as the Bernardo testimony was posted on the internet on a “Finnish site” around ten years ago.

So you will not find anything substantive around here as far as evidence goes, but, for the national edjification, how’s about a superficial review of what a publication ban is. The right to receive testamony but create a publication ban around that testimony is a procedure which must be done under power granted to the Commission. The specific powers of the Gomery Commission come from an Order in Council issued by Paul Martin, Prime Minister. It creates a commission pursuant to Part I of the Inquiries Act and, pursuant to section 56 of the Judges Act, the Honourable John Howard Gomery be authorized to act as a Commissioner on the inquiry. Further,

the Commissioner be authorized to adopt any procedures and methods that he may consider expedient for the proper conduct of the inquiry, and to sit at any times and in any places in Canada that he may decide.

Each of these sources in law may include the power to order a publication ban. It is not specifically stated in Order creating the Commissions but the power to create its own rules is and, at Rules 17 and 18 of the Rules of Procedure of the Commission it states:

17. However, applications may be made by a party asking that the Commissioner issue an order that any portion of the proceedings be in camera, or issue an order prohibiting the disclosure, publication or communication of any testimony, document or evidence. Such applications shall be made in writing, supported by affidavit(s), at the earliest opportunity. The evidence and submissions on such applications may be presented in private or in public, or a combination of both, at the discretion of the Commissioner, according to these Rules, which are applicable to in camera matters with appropriate modifications.

18. The Commissioner may, at its discretion, issue an order that any portion of the proceedings be in camera, or issue an order prohibiting the disclosure, publication or communication of any testimony, document or evidence.

It is clear from that wording that ordinarily any “communications” of any “testimony” would be prohibited. That would tell me that speaking about the testimony would expected to be prohibited. Certainly this would cover off the “blogging is not publication” argument evoked by citizen journalists everywhere who wish to be treated as senior cub reporters on any other day. Once a publication ban is ordered, specific obligations are generally imposed on the media present under sections 50 and 51:

50. Whenever the Commission decides pursuant to Rules 17 and 18 to proceed in camera, or issue a publication, disclosure or communication ban, the designated media representative must, to the satisfaction of the Commission, take all necessary measures to ensure that all tape recording or sound recording machines have been turned off.

51. No other forms or means of recording, re-broadcasting or photographing beyond those permitted by these Rules will be allowed in the hearing rooms.

Note that the writing down of notes by pen and paper is not mentioned.

The specific Order requiring the publication ban is also available in the information superhighway. It provides further detail as to the expectations of Judge Gomery in this matter:

The expression “publication ban” as it is used in this decision, should be taken to have the meaning those words have been given in subsection 486(4.9) of the Criminal Code, which states that “no person shall publish in any way (…) any evidence taken, information given or submissions made at a hearing”, in this case, a hearing of the Commission. In my interpretation of this disposition, “broadcast” includes a posting on the Internet.

The word “broadcast” means “broadcast to the public”, so that a publication ban would not prohibit a television broadcaster such as CPAC from continuing to capture the television images and sound of the Commission’s proceedings, and from transmitting them to the media room and other in-house outlets, as it does at present. Rule 50 of the Commission’s Rules of Procedure and Practice should not be construed so as to prevent this practice.

So, even though he effectively removes the word “communication” from the ban he specifically included a posting on the internet of “any evidence taken, information given or submissions made at a hearing” under the prohibition. This certainly could be taken to not include speculative discussion, however, unwise or useless such a practice would appear to be…except that it is 98.742% of everything political blogs actually post. It does not include reading and even pasting into a privately retained file the received information for future purposes once the ban is lifted. That might be taken to be actually implied as the recording and in-house sharing for future broadcast is expressly allowed. The interesting question is what in law is “posting”. It would certainly include a posting such as this were it to include “any evidence taken, information given or submissions made at a hearing”. Is an email that gets passed amongst a circle of friends “publication to the public”? Does it also include second-hand speculation? Is it commenting on another post which includes either evidence or second-hand speculation? It is linking to a site which posts evidence? Is it giving a rhyme of the name of the site where a post may be found? Questions, questions, questions…

It is interesting to note one reason that a publication ban might be reasonable. Under Rule 26 of the Commissions’s Rules of Procedure:

The Commission is entitled to receive evidence which might otherwise be inadmissible in a court of law. Evidence will be admissible based on its probative value in relation to the Commission’s mandate.

Given all the skullduggery of politics, could you imagine that any of the witnesses would have after all this time any clear recollection or even understanding of the truth of what that did? We are into the realm of the political and an election and a political purpose can hang on a useful placement of misinformation.

Yes To Inquiry

The appeal period will have to run out before any decisions are made but this statement by the son of one of those lost in the Air India disaster is entirely correct:

“This was not an aviation accident. This was not an in-flight accident,” said Susheel Gupta, an Ottawa lawyer who was 12 when his mother died on board Air India Flight 182 on a June morning in 1985. “This was murder, pure and simple,” said Gupta. “Murder in any system of justice demands just that – justice. And if the murder of 329 innocent people … doesn’t deserve a public inquiry, then we ask: what does?”

Libel Shopping

Here is another cheery story to warm the hearts of those who hear that 1960’s Coca-cola ad about teaching the world to sing when they turn on the internet in the morning [from The Star]:

Relying on a long list of legal precedents, the Post’s lawyers brought a motion to have the lawsuit dismissed on the grounds the case had no “real or substantial connection” to Ontario. Bangoura had little or no reputation in Ontario because he did not live here when the stories were published and the reporters who worked on the story were based in the U.S., Kenya and Ivory Coast. If Bangoura’s lawsuit were allowed to proceed simply because the stories had been accessible in Ontario through the Internet, it would mean that publishers worldwide would face the prospect of being dragged into other countries’ courts for libel, no matter how remote their connection to the country might be, the [Washington] Post argued. That would encourage “forum shopping” by libel plaintiffs and have a devastating impact on freedom of expression, the newspaper argued. Its lawyers, however, were not able to persuade Superior Court Justice Romain Pitt, who called the Post a major international newspaper “spoken of in the same breath as The New York Times and London Tel(e)graph,” [Ed.: really, brother, missing that “e”] whose writers influence viewpoints throughout the English-speaking world. The Post should have foreseen fallout from the stories would have followed Bangoura wherever he lived, Pitt said in a decision last year, allowing the lawsuit to proceed to trial. The Post appealed.

So you see how that works. The Washington Post is available world wide via the internet and access to the on-line version paper that embarrasses in the legal sense is enough to land that web site’s owner a court case anywhere anyone can read it as opposed to where it is published. The prospect of being libelled in the most libel-finding-friendly jurisdiction or the most libel-damages-friendly jusrisdiction arises. But then why not? Should it be where the most part of the experience of the offence occurs? Should it not be where the person offended lives? If this principle is established, it won’t be limited to on-line newspapers, either.

It all reminds me of the glorious days of first year law school contracts class and the rapt fascination we all had encountering the telex case and the question of where the contract existed for substantive and procedural jurisdiction. I can still recall the sound of that fly buzzing in the florescent lights above the 41 daydreaming heads…

Sick With Constitution

Home sick for another day, I am reading a book called On Reading the Constitution by Lawrence Tribe, an author recommended to me by a NYC lawyer recommended to me by a now blogging former-classmate of his as well as a collection of essays on the founding of the USA called To Begin The World Anew by Bernard Bailyn. With the concurrent debate on same-sex marriage as well as my recent spate of trips south, I thought it was time to get some sense of the difference between the US and Canadian constitution and I already am very surprised by a few:

  • The inordinate respect given to the USA’s Founding Fathers and what they must have meant when they penning this or that clause in this or that sentence. In Canada, it is sometimes said that the 1981 patriation of the constitution and the Charter moved us to an American style “written constitution” but this is incorrect as we have a constitution of hundreds of documents from 1700s governor’s letters of instruction to recent agreements on off-shore oil revenue. What we do not have is an uber-text and any care for those who wrote it. The words have to live and die on their own.
  • The misrepresentation of the original intention for separation of church and state seems to contradict the interest in understanding the Founding Fathers. From the outset, ministers of the faith were barred from sitting in a legislature as the rules of the faith had no place in the civic law. Nowadays, there is this idea that the morality and perception of Christianity in the late-eighteenth century was exactly as red staters would wish were the case today. Nothing could be further from the truth and is factually demonstrable. If such an analysis were imported in the Canadian discourse, we would think Sir John A. was a T-totaller.
  • There are no constitutional lawyers in the USA in the same sense as in Canada as the Constitution down south serves as almost an everyday interpretive tool for all law. In Canada, you default to constitutional interpretation when other analyses fail to provide an answer and when applied it is a special case often handled by specializing counsel.
  • That the phenomena of the USA was as much or more in its recreation of the state as it is in its identification of the rights of humans. It was envisaged by fairly ordinary folk like Roger Sherman as much as Thomas Jeffersons and George Washingtons. The concurrent divided jurisdiction of federal and state government being one example of this rethinking of government. The idealism is almost embarassing if it were not actually effective. It makes me wonder that if Napoleon had not emerged in France at the same time as the early USA was trying to get a start whether the War of 1812 may have had a different outcome and we would now, throughout the greater British North America, all have thought what a nutty idea those fellers had way back then.

In Canada our law and history is not a morality play, a battle of good over the void. It is a bargain, an agreement to get along peacefully. The USA is a very different place.

New Marriage Laws Required

Not for same sex spouses – but Royals! From the Beeb:

On Monday, law experts said royals could not have English civil marriages and would have to wed in Scotland. But the lord chancellor insists the marriage, set to take place at Windsor Guildhall on 8 April, is legal…On Monday Sir Nicholas Lyell, a former attorney general, suggested emergency legislation may be needed to clarify the legal position before the wedding. He said he felt “disquiet” about the government’s advice to the Queen. “I don’t think she has been given enough advice,” he told the BBC Radio 4’s PM programme. Sir Nicholas believes the 1949 Marriage Act, which updated the law on civil marriages in England, excluded the Royal Family. He said this would leave them subject to historic laws requiring marriage in church.

I have little interest in the Royals but wish these two well as individuals. Sad to see, however, that they are perhaps not equal before the law. Time to liberate them from such privileges.

I Really Do Not Understand This

Presuming the alleged facts are as reported and as set out in the Statement of Claim, this will be a most interesting case to follow, as reported in The Toronto Star:

Romanian-born Alexandra Austin, who was adopted by an Ontario couple but sent back five months later to poverty and deprivation, has launched a $7 million lawsuit against her adoptive parents, the Canadian and Ontario governments and Swiss International Air Lines…[A]fter five months in the Austins’ Ancaster home, Alexandra was driven to the airport and put on a plane for return to Bucharest. Shortly afterward, the Austins adopted a Romanian baby girl…Canada had accepted her as a landed immigrant when the adoption was approved. But as she left the country before her adoptive parents filed a citizenship application, she never became Canadian.

The parents who adopted her are no longer in Canada, this person and her child are effectively stateless and Canada should be ashamed. How could such a thing occur? It is interesting that no reference to this case I have read, including the link above to the Star‘s full article, references the Criminal Code section that pops immediately into my mind and might have had similar wording at the time the one-way ticket to no one bought and used:

215. (1) Every one is under a legal duty

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years…

(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if

(a) with respect to a duty imposed by paragraph (1)(a) or (b),

(i) the person to whom the duty is owed is in destitute or necessitous circumstances…

218. Every one who unlawfully abandons or exposes a child who is under the age of ten years, so that its life is or is likely to be endangered or its health is or is likely to be permanently injured, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years…

I hope this sad case finds this person some meaningful remedy. Fortunately we have courts that allow for redress where these parents, these bureaucrats and all other adults involved failed if the facts prove out – but how could they not given she was nine?

Lessig on The Connection

I just listened to Lawrence Lessig on NPR’s show The Connection discussing the Creative Commons license and somewhat in support of “Free Culture” his book on how corporations control creativity. Here are my immediate lunch-hour thoughts which may be either quite pithy and brilliant or junk I will fully disavow by supper:

  • I was happy to hear that generally he considered the control of collaboration to be an artists option which should be supported and that access and use without the permission of authors is extreme and unbalanced. He discussed, by comparison, how the flourishing of art through audience participation is encouraged by the Creative Commons license. Without such a generic license, he says, lawyers inhibit creative collaboration through insisting that someone own the specific work prior to it being created. However, this is only another agreement – a better license – rather than no license. Without a generic license, specific licenses caused an obstacle. What the Creative Commons provides is better law rather than lawlessness. This, I think, is very good and may distinguishes Lessig from Doctorow.
  • He indicated that under copyright the rules for content in text differed from that in film and music and image. The “next generation of blogs,” however, will mix to create more powerful social commentary. Why? The power to “review” already exists. Is it the right to reference or to illustrate that is being demanded? The first, referencing, is likely available – I have never really worried out citing an expression as a fact – but the second is very problematic. Should I have the right to illustrate my creativity with yours without your agreement? Sadly, Lessing stated, incorrectly, that he thinks right to put music in NPR show as an illustrative background is a right. It is not unless there is payment. It is merely a license that it bought by NPR and paid for with the proceeds go back to the authors and other interest owners. He also said bloggers now cannot do what NPR can. That is true but merely because the copyright organizations like Canada’s SOCAN does not have a rate for internet use of music. Is that an illegality? It is neither prohibited or permitted, just as whistling another’s tune is not. Silence in law is not prohibition. Through various court rulings in Canada, we have something of a gap for now that is recognized in law, at least in Canada, which may make us something of a sanctuary at the present time. We may presently be the lucky nation for those purposes. But should the rights of bloggers and their desire to illustrate their creativity with the creativity of others come before the rights of those others to their creativity?
  • He came out with the knee-jerk useless statement “The future is illegal.” Apart from the inability to know what that could mean even in the context of a downloading teen with a computer, I just do not think that this is true. The future is merely not defined.
  • He suggests freedom is prevented when the control of culture is restricted to a few but why should the goal of unfettered progress take precedence over the interests of owners of each step in the inventive, progressive process? The digital medium of information really adds nothing to the consideration of that core question any more than previous electronic media or mass media have in the past. Are we not simply being intoxicated by the demands of speed – which demand is merely a product of the possibility of speed? Should the capacities of technology govern our human relations?
  • One caller spoke of the need to be specifically paid – she has worked for 20 years to create and audience she needs to sell her CDs. “So we all have our frustrations,” Lessing responds, less than effectively, but a wider range of choices to be made available to artists. The license is merely a technique to make money. Don’t use it if you do not want to. He reiterated he does not support piracy. He cites, however, a recent restrictive sampling case from a US court and its result that entirely barred unpermitted use of another’s work was left as an unargued point – an implicit wrong. He followed by an implicit good, Mixter, a wep space that allowed consensual collaboration. But this is a false dichotomy, an unpermitted unlicensed taking compared to a permitted licensed use and necessarily contrary to what he indicated to the musician of 20 year’s effort. If her work can be sampled without consent, then there is piracy. Plain and simple. He also made what appeared to be an error in analogy, comparing sharing his ideas when speaking with sharing an artists expression – this is a strict division in copyright law. You have no right to the idea just the particular expression of the idea. Software programming interestingly fuses the two as their are both the idea and the expression (due to, in a way, being both the instruction and the execution). Perhaps this is the problem. The analogy from software and cretivity to other media and creativity may simply not hold – yet it pervades this discussion.
  • For Lessig, the de-commoditization of software outside of proprietary interest as an extraordinary collaboration is a “dramatic model” which one presumes intelf makes it compellingly applicable elsewhere. He speaks too much of the need for generic “experimentation”. But can it really be transferred to creative activity in which the artist must have their specific work recognized as a unique commodity to be paid over a lifetime? Are we perhaps enamoured by the new technology to the point we are forgetting that the proposed general progress will create unacceptable consequences. How different is this really from earlier industrial revolution stages which sees the craftsman and artist crushed by the new, in this case, freeing them from the burden of stable income? In cooking they say do not pick up a hot pot without some idea of where you are going to put it down. There is as yet none of that good sense in this question.

Please comment, question and kick at will.

PS – not only did I originally spell it Lessing, I do have this desire to call him Doris.