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Euro-Excellence v Kraft Canada

Euro-Excellence v Kraft Canada revolves around an attempt to use copyright law to prevent grey marketing, but its broader interest is in way in which the various opinions address policy considerations in the context of statutory interpretation.  Bastarache J. faced the policy issues head-on, while Abella J. stuck to a more narrowly textual approach.  Both these approaches have their own merits and the two opinions provide an interesting contrast.  The weakest opinion, in my view, was the majority decision of Rothstein J., which seems to be policy analysis in the guise of textual analysis.  The result combines the weaknesses, not the strengths, of  both the 'pure' approaches.

Re: Why Do Men Make More

Re: Moin's post - very interesting stuff. Would have thought that haggling is not something men do very well or at all. Going to the market was always more fun with my Dad than my Mom, simply because it was over on time and we could get away from the unbearable heat. My Mom once beat the price for a pound of beef down to 10% of the original quoted price.

Judicial appointments and judicial decisions: what should the link be?

Looks like faculty Blog guru and mover and shaker Moin Yahya continues to make quite a splash with his research surveying ideological bias on Ontario’s Court of Appeal. For peets sake, the piece, co-written with James Stribopoulos, hasn’t even been published yet in the Osgoode Hall Law Journal and it’s getting repeated media citations!

Today, it’s court critic Lorne Gunter who mentions the article in his National Post column. For the political scientist in all of us, it won’t come as a surprise that there’s bias on the bench, but kudos to Moin and James for taking the time to grind out some research to back up the proposition that gender and party affiliation are linked to case outcomes.

Gunter uses Moin’s research to try to take away some of the heat generated by the Conservatives’ February changes to the composition of judicial advisory councils. I saw some of this heat first hand at a party in March when an earnest UBC law student cornered me and held me captive for a half-hour lecture on how the Conservatives were messing with judicial independence and the rule of law by adding police representatives to judicial advisory councils. Don’t know what I did to deserve that treatment other than get introduced at the party as a poli sci constitution guy.

Anyway, Gunter implies that Canadians can’t complain about Conservative appointment partisanship when Liberals have already honed that art. What's good for the goose is good for the gander, but that's hardly a rock solid justification for continuing the practice. Political scientists are likely to see in the column yet another opportunity to talk about the appointments process, but, of course, Moin’s research forces us to confront the fact that even without partisanship in appointments, who judges are still affects how they judge.

Friday Poetry: The Coming

born

somewhere
        with blood without fragrance 

verminous birth,        welcomed with acid doses of scorn

nearby the carcass of crystal waters
flows from Koko shores in jagged leaps

black death comes to watery town
takes the fish and fauna
leaves the lumps and lupus
lupus and lumps

            perfect rhymes for jaded waders

dusk
glow-fades on the blooming tar

lips slung over stained teeth    contemplate    baby steps into sunset    facing the naked west

the will-been-to arrives…

More on NBA referee gambling scandal

Justin Wolfers, professor at the Wharton School at the University of Pennsylvania, has a fascinating op-ed in the NY Times today about the NBA referree gambling scandal. As many have argued before with respect to gambling and other consensual "vice" crimes, he suggests that the best way to deter gambling-inspired game manipulation is to legalize and regulate sports betting. I think he's right, but I'm betting that neither NBA Commissioner David Stern nor governments will take him up on his suggestion.

Of Citizenship

Two days ago, I acquired Canadian citizenship after swearing an oath of loyalty and allegiance to Canada and the Queen Elizabeth, among other things. I rather enjoyed the ceremony, which took about 20 minutes to complete, after a 2-hour processing time wait that almost made me lose my newly acquired values of respect, patience and compassion.

As things stand, I am now a dual citizen of Canada and Nigeria. How long I'll continue to enjoy this double honour remains unclear, especially since the conservative government is considering reviewing the laws on dual citizenship following the Lebanon Rescue Boomerang. I do hope resident dual citizens like me are grandfathered by any laws that change the status quo. If not, I suppose one will then have to choose which country to sever ties with. Here's some of the factors that will influence that decision.

For Nigeria:
1. Born there, all my family reside there.
2. The color of the passport (green).
3. Why would anyone not want to have intimate knowledge of this, and the circumstances leading to this? (At least, for sake of conversation).
4. To change this nonsense.
5. To avoid the stress of getting a visa just to experience this.

For Canada
1. Compassion, peace, security, tolerance, etc.
2. The color of the passport (black).
3. To join the liberal party and then vote against it (thank Goodness for the secret ballot).
4. The Charter of Rights and Freedoms.
5. This and this and this.

Alberta Law Puts Health Privacy Rights at Risk

I reproduce below an op-ed column co-authored with Tracey Bailey of the University of Alberta Health Law Insitute. It first appeared in the May 5, 2007 edition of the Edmonton Journal.

Imagine the following: police arrive at an inner city methadone clinic and demand that the nurse in charge give them the names of all patients matching a certain description. Earlier that day, someone had robbed a nearby convenience store. An eyewitness reported that the robber resembled someone whom he had seen frequenting the clinic.

Before a recent amendment to Alberta’s Health Information Act, complying with the police’s request would have clearly violated the nurse’s legal and ethical duty of confidentiality. Unless it was necessary to prevent imminent harm (or in certain other limited circumstances), health care workers could not give patients’ personal information to police unless presented with a warrant.

Confidential medical information, including details of patients’ illnesses or injuries, may now be released to police if a health care worker “reasonably believes” that it relates to the possible commission of an offence and disclosure “will protect the health and safety of Albertans.” This would permit disclosures that might conceivably aid the investigation of a broad variety of offences, even where there is no evidence of imminent danger. In the example above, the nurse might conclude (at the police’s urging) that one or more patients fit the description and that apprehending the robber could prevent the commission of further crimes.

At first blush, this might seem very reasonable. We want the police to use every tool at their disposal to suppress crime. One can also understand that in some situations, health care workers may believe that disclosing their patients’ confidential information could help police achieve this goal. The problem, however, is that the new law violates one of our most cherished ethical and legal principles; namely, that in the absence of either a judicial order or circumstances of imminent danger, health information must not be disclosed to police. Without this assurance, people may refrain from obtaining critical treatment because they fear that their personal information will be used against them.

This concern may be particularly acute for members of some disadvantaged groups, who are more likely than others to fear that sensitive information (such as addictions to illegal drugs) could be disclosed to the authorities. If people fail to report and seek treatment for health issues such as mental illness, addictions, or infectious diseases, the health and safety of the general public could also be placed at greater risk.

While the new power to disclose information to police is discretionary, not mandatory, there is a real danger that it will be used improperly. Unlike a judge deciding whether to issue a warrant, health professionals are neither legally trained nor institutionally insulated from police influence. Faced with a direct and forceful request for information relating to a serious crime, many practitioners will likely defer to police authority.

The police have not shown that the investigative tools that they have always had at their disposal are deficient. The warrant process is a time-tested element of our criminal justice system. By requiring police to demonstrate that it is truly necessary to invade a citizen’s privacy, warrants are a vital check on abuses of state power. In the absence of urgent circumstances, we should not allow police to avoid this process by pressuring health care workers to breach their patients’ confidences.

The new law is not only bad policy, it is also very likely unconstitutional. Its purpose and effect are to give police enhanced investigative powers, which the Constitution permits only the federal Parliament to do. It probably also violates section 8 of the Charter, which gives everyone the right to be “secure against unreasonable search or seizure.” The Supreme Court has repeatedly stressed that this right prohibits police from obtaining confidential health information in the absence of a warrant or exigent circumstances. As the Court has stated, health providers “ought not to be made part of the law enforcement machinery of the state.”

The new law should be repealed. If not, its constitutionality should be challenged in the courts. In the meantime, professional associations and health authorities should adopt directives and implement procedures to strictly limit the disclosure of health information. Given the myriad obligations on health professionals to protect their patients’ privacy, from a strictly legal perspective discretion conferred by the amendment should be exercised only rarely, if ever. In the absence of clear guidelines, however, many front-line practitioners are likely to succumb to pressure to disclose without fully considering their ethical and legal obligations. They should therefore be instructed never to release health information to police under the authority of this amendment. Such a policy is in the best interests of patients, the general public, and health care workers themselves, who may face liability for failing to adhere to their duties of confidentiality.

Friday Poetry: (forward)

(iii)

…love me fern says to kernel tree
feel my embrace handsome lover
mein liebes, long as felled iroko dark as night
blood so supple it produces nuts
love me fine beast of the savannah

every truth is sporadic
like good luck

(iv)

wood bleeds
        hissing foaming watery blood
sitting on its flame the pot of mama’s love
and her eyes
red teary dreary
blows stokes rekindles
the breath of her spirit flows

(v)

our land where serpents shed skin
in the midday sun
then go about swallowing unborn chicks
and hissing at school kids
we are the children of the midday sun
running from serpents with new skin
aliens in our own land   

Privacy Rights and Cognitive Bias

See my post of this title on Overcoming Bias.

Re: No More Wigs

Cons: Itchy, often dirty, hot and old-fashioned, adding to perception of judges as out-of-touch and fuddy duddy. (Law Blog)

Well, at least it's not always +32 degrees Celsius in the UK and the courtrooms probably have air conditioning. In Nigeria it is a different story. Despite the fact that this hand-me-down custom from our colonial days is clearly unconscionable given the circumstances, I doubt that the Nigerian Bar will ever entertain any attempt to change the status quo. You see, we just love our colonial customs. Indeed, we still scrutinize our customary laws for conformity with the colonial "repugnancy" standard of "natural justice, equity and good conscience." Some might call it the "common law". As a young barrister in Nigeria, I used to ride to court on an okada wearing this in unbearable heat. And if you're wondering about the smile on my face - it's my call to bar ceremony. I had to smile for pictures.

Oh and I should add that my aunt shelled out the equivalent of my 3 months pay as a new lawyer to get me the wig from Ede & Ravenscroft. Just in case you read the linked article on the list of reasons why practicing lawyers are unhappy.

shortage of labour or service discrimination?

I am new not only to this blog, but also to Edmonton, having recently moved from Toronto. While still there, I called to have my favourite newspaper delivered to my new address. It's been nine days, and the paper came once. Actually, I've been too busy to notice its absence until Saturday, and then it was delivered only after I complained. But on Monday, nothing again.

The customer service representative I spoke to explained that newspaper delivery across Edmonton is irregular,  because the current economy makes it difficult to find deliverers "as competent as we would like".

I mentioned this conversation to a group of colleagues. Russ Brown was skeptical of the explanation I received. He subscribes to a different morning paper and it is delivered regularly. Since the two newspapers have access to the same labour force, Russ suggested the problem might lie in the number of subscribers in my neighbourhood.

Since local service delivery is among my research interests, I became curious. I referred to the City of Edmonton website for a comparison of the two neighbourhood profiles. Indeed, there are significant differences in household income, education, and other socioeconomic indicators. Furthermore, the majority of residents in my neighbourhood are renters, as opposed to homeowners.

Could it be that fewer households in my neighbourhood subscribe to home delivery of a morning newspaper — too few to allow effective service? Or is it that my neighbourhood "matters less" to the provider? At this point this is all speculation. The friendly customer service representative promised me that the problem will be investigated and every step taken to ensure regular delivery.  We'll see.

Blogging Law

As a new faculty member, I have been encouraged to blog.

I think I see its merits. Blogs instantly publish the thoughts of their authors and make them available to anyone with a computer. Apart from the instant gratification involved, blogs provide the means to easily and quickly communicate with a vast array of persons known and unknown, near and far.

Although I do not regularly read them, nor have I ever contributed to one, I know that blogs matter.  Increasingly people write a blog or read those of others. A friend of a friend has a blog followed by thousands. Another friend admitted to a blogging addiction. In the latest issue of the University of Toronto Law Journal, Brenda Cossman and David Schneiderman suggest that being a blogger is among the identities that can constitute the "complex self." A few years ago, I had never heard the word; today, I encounter blogs everywhere I turn (wikipedia tells me there are 71 million of them).

Yet I sometimes wonder if, in the midst of it all, we are talking more and saying less. To paraphrase Gertrude Stein, I can't shake the feeling that there is no here here.  Busily blogging, are we still reflecting on our ideas and listening to one another?  Maybe I've just got the first-time blogger jitters.

Friday Poetry: (rewind)

metal water runs beneath the river you see
all amok
a few cups were shed as tears
many to bathe virgin cancers
    left, only a grain of sand buried
    in the heap of sea salt
the earth river kills, it kills hard
the earth river rules

    it is tragedy
    when the father to the scholar son says
    “what are you really”
    hot throbbing mad tragedy
    and the scholar son rages
    like boiling stew streaming down a firepot
    look what a tall drink of toxic water has brought upon you
    scholar son to father says
    metal madness

all lies are non-fiction
all non-fiction are non-truths
perfect syllogism

(Excerpt from work in progress. I'll post the sequel, titled "(forward)" next week)

Medicine Hat Murder Verdict

The recent guilty verdict in the infamous, wildly sensationalistic Medicine Hat triple murder trial provides an occasion to herald the basic soundness of the Canadian criminal justice system. It is easy for academics, journalists, and members of the general public to point out the inevitable imperfections of that system, especially when things appear to go awry in notorious cases.

In this case, a twelve year old girl was convicted of collaborating with her twenty-something boyfriend to carry out the gruesome murders of her parents and younger brother. The system responded appropriately: it gave her a fair trial, recognized her mistreatment by police (by excluding her coerced confession), and will hold her accountable in a manner that is sensitive to both the enormity of her crime and the diminished responsibility that must be afforded to the young and immature.

As David Paciocco argued in his 1999 book Getting Away With Murder, while there is undoubtedly room for reform, on the whole our criminal justice system works very well. We should take the time to recognize this more often.

"Talent Borrows, Genius Steals"

Famously etched on the B-side of the UK 7" and 12" vinyl release of The Smiths' single "Bigmouth Strikes Again" (a B-side song on the classic The Queen is Dead), the quote in the subject line (credited to Oscar Wilde) sums up singer Morrissey's feelings on the place of plagiarism in music and art. Moz fleshes out this position in the closing song on the A-side, the rhythmically pleasant  "Cemetry Gates", stating:

"A dreaded sunny day
so I meet you at the cemetery gates
Keats and Yeats are on your side
while Wilde is on mine...

You say: "ere thrice the sun done salutation to the dawn"
and you claim these words as your own
but I've read well, and I've heard them said
a hundred times, maybe less, maybe more

If you must write prose and poems
the words you use should be your own
don't plagiarise or take "on loans"
there's always someone, somewhere
with a big nose, who knows
and who trips you up and laughs
when you fall
who'll trip you up and laugh
when you fall"

What Morrissey seems to be saying here is that conscious copying of other's works is common artistic practice which should not be sanctioned, for the sake of art. This claim is highly relevant in the new era of bastard pop (mashups) and other musical genres that depend on extensive sampling of released material (hip-hop, electronica, classical music etc.). For example, Gregg Gillis a.k.a. Girl Talk, music producer and mashup new poster boy's critically acclaimed 2006 release titled "Night Ripper" contained songs composed almost entirely of songs from other artists. Gillis' work is perhaps the world record holder for copyright violations per number of possible plaintiffs, as he uses unlicensed sources, although the artists and songs are credited on the liner notes. For this reason, some music stores refused to sell Night Ripper. As far as I know, Gillis hasn't been sued yet, and he might have even succeeded in arousing congressional interest in the ways copyright laws and music licensing hinder art.

I haven't done any extensive reading on the Canadian legal position re: plagiarism in music. I did find one Ontario Supreme Court case,  Gondos v. Hardy,  38 O.R. (2d) 555, which contains an excellent summary of the law on the point. The current legal position seems to be that copyright infringement is established if there is sufficient objective similarity between the infringing work and the copyright work, and that the copyright work must be the source from which the infringing work is derived. Also, it does not matter whether the copying is conscious or unconscious, so long as there is a causal link.

Of course in a situation like Gillis encountered where it would be impracticable to obtain permission to use copyrighted work, the fair use defence might avail the infringer. However, in the final analysis, one wonders whether the time has come to recognize a "common artistic practice" exemption at least for those who ply the music sampling trade, a la Morrissey?

If you don't own The Queen is Dead, go here immediately. Or you're welcome to listen to the entire Smiths catalogue at my place, on vinyl.
Read my music blog.

Sniffer Dog Debate

My blog on sniffer dogs has generated a spirited and insightful exchange between a number of commentors and bloggers (my contributions notwithstanding) on the theoretical underpinnings of privacy law. It will be interesting to see whether the Supreme Court of Canada picks up on any of this when it renders its sniffer dog decisions later this year.

Poem: Untitled

splash of stillness
time made flesh
twist of memory
knock on the head
termite travels through clay highways
on the courtroom wall
crashed by the briskness of a broom
mole on my thigh
seeking for eyes
hidden by modesty
jug full of water
thirst for bite
maiden’s lacerated earlobes
craving for gold
whisper in the dark
no light to guide me there
touch my grey hair
and tell me how much longer
I have to live

(excerpt from Bread and Blood Tonics, about the reflections of an articling lawyer on a first time visit to a Nigerian courtroom).

Manufacturing controversy

I am a reluctant media interviewee. But sometimes, perhaps against my better judgment, I agree to speak to the media in the hope that my doing so will add a balanced perspective and will explain legal and ethical issues to interested members of the public.

This morning, I was contacted by a well-respected media outlet with a request for a live radio interview. The interview was to focus on the story of a Montreal woman (story also here) who has decided to freeze a number of her ova for possible future use by her now seven-year old daughter. The woman decided to take this step after she learned that her daughter has a genetic condition that might mean she is infertile.

The producer I spoke with this morning asked me a number of "pre-interview" questions, the first of which was "is it ethical for this woman to have frozen her eggs for her daughter's use?." I responded that there is nothing inherently unethical about what this woman has done, that it is ultimately a personal decision for her, and that while it does raise potential ethical concerns, these are, in my view, not insurmountable. I was also asked "Does this mean that, if the child goes on to have a child using her mother's eggs, she will be both mother and sibling to the resulting child?" I answered that, genetically speaking, the woman's daughter would be a half-sibling to her own child, but that from a social point of view, it is really a question of how the family chooses to define and shape its relationships. I noted that the separation of biological and social parenting is not novel, adoption being perhaps the most familiar example, and that this is simply a variation on that practice.

I also noted that the woman's daughter may never use the eggs that her mother has cryopreserved. Currently, it is very difficult to obtain donor eggs for use in IVF. But by the time this young girl is ready to raise children (should she choose to do so at all), that may no longer be the case and she may opt to use eggs provided by a different donor. I told the producer that one of the troubling issues surrounding this case is the lack of anonymity that has been granted to the family, particularly the young girl. Hopefully, however, by the time she is ready to try to conceive children, this will all be long-forgotten.

The producer then told me that she would speak to her senior producer and get back to me with the details of the interview. Instead, I got a phone message from her saying that they had decided to forego the story for now. They were hoping to find someone "who saw more of both sides of the issue, or thought that this was more unethical" than I did.

So much for providing a balanced, reasoned perspective. That, it seems, is not of interest. Instead, this media outlet is looking for controversy and would prefer to interview someone who is going to generate sound bites about how outrageous our society has become, how our social values have shifted in a direction that bodes poorly for the future. Not only would they prefer this type of interviewee, but they decided that the story itself is not worth telling unless they can find him or her. Maybe I've been right all along in being reluctant to speak to the media...

Your Tissue is Mine: Property Interests Trump Autonomy in the Catalona Case

Now that I have reflected on the US Court of Appeals' decision in the Washington University v. Catalona appeal, it seems to me that any academic discourse on the case should focus on answering the following two questions: (1) What is the philosophical or legal underpinning of the right to withdraw consent to donation of biological materials; and (2) what limits can be placed on the right to withdraw without displacing this philosophical or legal foundation? I believe that if the Court of Appeal (and the court of first instance) had directed its mind to these questions rather than to canvassing the meaning of words found in the informed consent documents, or Dr. Catalona's alleged hyprocrisy for that matter, they might have arrived at a more principled decision. Regrettably, a blog post is not the best forum to go into a detailed analysis of these two questions, and there is a ton of literature out there that explains the philosophical and legal basis for the right to withdraw. In my view, the right to withdraw consent to any form of research activity, including the donation of  biological materials, is  based on the principle of autonomy, and not on property or ownership interests. See my article co-authored with Tim Caulfield and Rosario Isasi and published in the Canadian Medical Association Journal for a detailed consideration of the role of autonomy in relation to the right to withdraw consent. I also think this autonomy right directs the fate of collected biological samples. I use the word "fate" deliberately, because I think the donor's exercise of the right to withdraw is not just an unqualified right to terminate participation in research or request destruction of collected samples, but also a dynamic right that allows donors to make decisions regarding the use of the collected samples. Essentially, this is donor sovereignty over the donated tissue (the bolded sentence is Jacob's, so give him hell if you disagree or think it's too dramatic).

With respect to the second question, of course the autonomy right implicated here has its limits, but mainly practical limits. For example, withdrawal ought not to extend to products resulting from the research, or to anonymized biological samples. 

Whether or not I am right about all this, it is clear that by treating the consent documentation in that case almost like a contract implicating ownership interests, the Court reached a flawed conclusion based on a flawed interpretation of the terms of that contract.

Go here for more blog posts on the Catalona appeal.

Passion in Legal Scholarship

I recently refereed a very bad paper about patenting of higher life forms.  At the end of the paper I knew that the author was passionately against “patenting life,” but the arguments were so poor that I really didn’t know why.  This paper didn’t say much of interest about patenting life, but it does raise interesting questions about passion in scholarship.  Passion is generally seen as a sign of sincerity, but there is no obvious connection between sincerity and truth. (As my wife says, “If there isn’t a tear in your eye, can what you say really be true?”)  Passion might make you inclined to work harder, but my impression is that it more often serves as a substitute for reason, as in the paper I refereed.  Randal Graham (a former colleague at UNB, now at UWO) once remarked to me that “passion makes for bad scholarship.”  On the whole I think he’s right.