University of Alberta Faculty of Law Blog

Escher-inspired New Yorker cover

Jailed for bad character

From a BBC story: The Afghan women jailed for 'bad character'

What are you here for?" I ask as we sit in a makeshift beauty parlour, surrounded by a group of Aghan women in less flamboyant attire.

"Should I tell her?" she asks the other women with a mischievous grin.

"Bad character," she says after a moment's hesitation.  She suppresses a giggle then doubles over with laughter.  Everyone giggles with her.

Sorarya doesn't explain what that means. But almost every woman in this room has been accused of "bad character" of one kind or another.

We are sitting in Badam Bagh, or Almond Garden, Afghanistan's only prison for women in the capital of Kabul.

The prison is a window on a world where, outside these walls, women are constantly judged against a standard that makes many of their stories difficult to fathom.

Sixteen-year-old Sabera, with a pretty yellow head scarf, frets that she is missing school.

"I was about to get engaged, and the boy came to ask me himself, before sending his parents.  A lady in our neighbourhood saw us, and called the police," she explains.

She was sentenced to three years but, in an act of mercy, it was shortened to 18 months.

Fellow inmate Aziza was accused of running away from her husband.  She says she was acquitted two months ago, but still languishes in prison.

A senior official in Afghanistan's Ministry for Women's Affairs told a recent UN workshop that about half of Afghanistan's 476 women prisoners were detained for "moral crimes".

That includes everything from running away from home, refusing to marry, marrying without their family's wishes, and "attempted adultery".

Fine dining with babies

Seeing a family stroll into your high end restaurant with an infant in tow is for some diners a very unwelcome sight.  Some fine-dining restaurants roll out the red carpet for kids but an Ottawa food and wine bar turned away a family because they brought their three-month old baby along to the party.  

Naturally, the chafed family did what everyone else is doing and took their grievance to the Human Rights Tribunal of Ontario.

Irony, or ... ?

June 23, 2010: a non-destructive earthquake starts in western Quebec, not far from the Ontario border, soon hits Ottawa and is soon felt in Toronto.

June 23, 2010: a tornado strikes Midland Ontario. The CBC reports that insurers estimate the damage as much as $15M. (http://www.cbc.ca/canada/story/2010/06/24/midland-ontario-tornado.html)

There was, of course, damage to a trailer park, too ... well, you had to know if there's a tornado involved there will usually be a trailer park, somewhere. Pictures on Youtube. (http://www.youtube.com/watch?v=4P6-rjImayg)

June 23, 2010: also the 20th anniversary of the death of the Meech Lake Accord. If this is Mother Nature's acknowledgment of the event, is she "punishing" Ontario for the failure of the accord - if so, she's got the wrong target - or for her then gov't and MPPs being on the "yes" side of what could be viewed as executive "putsch"?

Shoplifters shamed

Shoplift in Queens and you might end up on a wall of shame:

First, suspected shoplifters caught by the store’s security guards or staff members have their identification seized. Then, they are photographed holding up the items they are accused of trying to steal. Finally, workers at the store threaten to display the photographs to embarrass them, and to call the police — unless the accused thieves hand over money.

“We usually fine them $400,” said Tem Shieh, 60, the manager, who keeps track of customers on 30 video monitors in the store’s surveillance system. “If they don’t have the money, then we usually hold their identification and give them a chance to go get it.”

The practice of catching suspected shoplifters and demanding payment is an import from China, several experts in retail loss prevention said, where there is a traditional slogan that some storekeepers post: “Steal one, fine 10.” Whether this practice is legal in the United States is open to interpretation.

 

Factual Causation, Parsimony, and the Lord of the Tests

One Test to rule them all, One Test to find them,
One Test to bring them together, and in the light of doctrine bind them.

(apologies to Tolkien, Lord of The Rings)

Law needs to describe itself as a science, ultimately based on empirically verifiable principles, in order to avoid being nothing more than another form of theology, ultimately based on faith. Faith, by definition, does not require empirical verification. Similarly, Law's principles and rules need to avoid amouting to a form of magic that is fantasy, not merely an instance of knowledge beyond our current understanding. Magic, too, does not need verifiability. It simply is.

Physics has its search for the TOE (Theory of Everything). Canadian tort doctrine, in the area of factual causation, at least as expounded by current Supreme Court of Canada doctrine, apparently has its own TOE, its own one "One Test": the but-for test.

Unfortunately for the SCC, the but-for test when properly understood is not a TOE at all. It is not a theory that explains everything.While it is, in practice, a default test; nonetheless, even as a default test, it is not the all-powerful master test in the sense of the One Ring in Tolkien's Lord of the Rings.*   (The LoTR has been endlessly parodied. Two of the best are the Harvard Lampoon's  Bored of the Rings - easy enough to find online - and the Jack Black, Sarah Michelle Geller, and others parody of a seminal scene.) Nor, is it even even a positional equivalent of Asimov's Zeroeth Law of Robotics. 

(edited June 23, 25)

Live by the sword

Salter v. Hirst  2010 ONSC 3440 is the rare example, in Canada, of what in the U.S. is called a judgment N.O.V. (judgment non obstante veredicto) - a judgment by the judge in favour of one of the litigants notwithstanding the jury's findings of fact which, on their face, satisfy the requrirements for a verdict in favour of the other litigant.

In Salter, the jury found in favour of the plaintiff on all the issues [of fact] required for judgment liability against a defendant. The plaintiff moved for judgment in accordance with the findings of the jury. The defendant moved to have the action dismissed on the basis that one of the findings was perverse and not supported by any evidence. The defendant succeeded. The plaintiff failed. The rial judge held that there was no evidence whatsoever upon which the jury could have made the finding it did. The action was dismissed.

The case is also a reminder of the potential consequences of not having the necessary evidence, and not asking the necessary questions, even if one has a sympathetic plaintiff, a tragic injury, and a jury.

The case is also a reminder of the fact that there are some issues which require expert evidence: areas where lawyers won't be permitted to appeal to the jury members "common sense" as a basis upon which the jury can draw inferences about facts for which there was no positive evidence.

Professor Brown's "The Possibility of "Inference Causation": Inferring Cause-in-Fact and the Nature of Legal Fact-Finding" (2010) 55 McGill L.J. 1 is a prescient article on the issue that tripped the plaintiff. There's a link to a version of the article here. (In fact, the entire volume of the McGill LJ is on that site, just a bit of surprise  because the articles aren't available on the jounal's site, itself. It's not quite the version that's in the MLJ, at least in format, since the online version has endnotes not footnotes. I didn't check content.)

In the US, in civil cases, the practice is to ask the jury detailed questions. In Canada, the practice is to ask the jury general questions. Most litigators (in my experience) assume that generality favours the plaintiff, particularly given the narrow grounds for attacking appealing a jury verdict: essentially, no evidence upon which a jury acting reasonably could make the decision it did. This is one case where that generality may have backfired on the plaintiff.

DC

A Few Things From and For the Web

Anonymous Coward over at Bayblab - one of my favorite science blogs - has this interesting post which suggests that homeopathy and alternative medicine are attracting some positive attention in the British Parliament. I know a lot of people who would either enjoy or loathe this development.

This Harvard prof. has a few thoughts on what it really means to be a professor. (H/T Bayblog).

Some interesting recent developments in the world of biomedicine, science, law and policy:

• President Obama has asked his bioethics commission to look into the issues raised by synthetic biology following Craig Venter's recent announcement that his research team has created a synthetic cell. Other scientists say the work is a significant technical achievement, but not groundbreaking. Don't expect that to deter conspiracy theorists, who unfortunately may be writing the script for the next crop of lawmakers seeking to protect us from science gone mad à la embryonic stem cell research.
  
• Three members of the Board of Assisted Human Reproduction Canada, the federal regulatory agency responsible for implementing the provisions of the Assisted Human Reproduction Act, have resigned their posts. Interestingly, they can't say why because of a gag order written into their terms of service. You can read my reflections on the resignations here. One thing I did not mention in that post is that the current membership of the Board certainly does not "reflect a range of backgrounds and disciplines relevant to the Agency's objectives" as expressly required by the Act. Not that it matters - the Board has been largely inactive since its establishment in 2004.
• If you know someone planning to travel abroad for stem cell treatments, ask that they check out this website. A speaker at a regenerative medicine conference I attended last week in Madison, WI suggested that clinics offering unproven and unapproved stem cell treatments may be operating within a new research and innovation paradigm whereby patients receiving these treatments serve as unwitting funders and subjects of research. Or as I like to think of it: the paradigm that killed the right of autonomy.

Homolka's Pardon

The media are reporting that Karla Homolka will soon be eligible for a pardon under existing legislation. Nobody has suggested that they have information that she intends to apply. I do not know whether it's a given that she would get a pardon if she did apply. Nonetheless,  a majority of the members of the House of Commons have agreed, apparently, to expedite passage of the portion of  part of Bill C-23 that deals with pardons and changes the existing federal law (The Criminal Records Act) with the intention, apparently, of making it more difficult for Homolka to qualify.The Globe and Mail report is here. 

I assume - I haven't read the new provisions and it's been years since I did anything more than glance at the current - that under the new legislation H has less than the proverbial snowball's chance of getting a pardon in the immediate future.

The politics of the play are obvious, as are the good intentions of the MPs. But, there's that proverb about what the road to hell is paved with.

The lawyer in me wonders whether the Tories, in their grandstanding, and the other  MPs, in their rush to judgment, have received advice from lawyer(s) competent to give that advice that the legislation is constitutional, under the Charter, to the extent that it purports to alter, to their detriment, the eligibility for pardon of persons convicted of Criminal Code crimes prior to the passage of the proposed legislation? Bear in mind that, had the Criminal Code changed to her detriment after Homolka committed her crimes, she'd have been tried under the law criminal law as it was. Is "pardon law" a part of the criminal law for that purpose? The fact that deals with a criminal record suggests there's an argument it is. If it is, then isn't Homolka entitled to pardon eligibility under the law as it was when she was convicted (or new law if it's better for her, but that's not the case.)

The heinous nature of what she did doesn't entitle the current gov't and the rest of the MPs who are onside with it to knee-jerk in a way that's unconstitutional. Her acts were heinous. But that doesn't entitle the state to act unconstitutionally. There is something called the "Rule of Law" that even the current gov't is bound by, even when they don't like it.

But, if the proposed legislation isn't constitutional on the basis that it's contrary to the Charter - say s. 7 - and can't be saved by s. 1, and there isn't a notwithstanding clause, does that mean Homolka would have a s. 224 action against the Crown for damages?

Or does the gov't intend to use the Charter's notwithstanding provision just in case?

I don't know the better (or even correct)  answers to any of this. It's not my bailiwick. Perhaps I've missed something that means the problem I've raised doesn't exist.

Perhaps one of the members of this blog (or another reader with the required expertise) is in a position to comment.

Candidly, nothing I've seen in the conduct of the current party in power, or its members antics while in the oppostion makes me confident that the gov't has adequately considered the legal issues. I'd like to be wrong. about that. I'd also like to win Friday's $50 million lottery. (Yes, I 've bought a ticket.) 

Research, law journals and reviews, and competence

A friend said to me a while back that more and more of the articles that appear in reputable, peer-review required, law publications are written by academics for academics and intended to be read by academics familiar with the unstated assumptions. The corollary is that they're not written for lawyers in practice. Another corollary is that they're not written for judges. Since there is limited space in the publications, yet another corollary is that there's less space for articles written by anybody for practitioners and judges, even if the subject is one that should be written about for practitioners and judges. And yet another corollary is that it is less likely that a practitioner or judge looking for something helpful will devote the time required to determine whether there is something helpful in the journal.

On the other hand, the Advocates' Quarterly is, I think, the primary common law Canadian journal whose purpose is to publish articles about legal issues written for practitioners and judges. It has existed since the late 1970s. It is very easy to find well written, helpful, information in the AQ. It is easier, now, that the AQ is indexed on line and is available in full text, on line. However, the articles have been indexed online for years.

A quick check on CanLII produces 167 hits in reasons for judgment on what might be references to the AQ across all of the Canadian courts and 57 limited to the appellate courts. Some of the hits won't be to the AQ. Conversely, it is also likely that there were references to the AQ material in argument, but the judge did not consider the material relevant to the issues that needed to be decided, so didn't mention the journal. Still, putting these uncertainties aside,  what does an average of about 5 references a year suggest to you about the extent to which the profession fails to refer to what could well be a helpful source. 

Boardwalk Empire

A new trailer for HBO's highly anticipated Boardwalk Empire is out.  The series is based on the book Boardwalk Empire: The Birth, High Times, and Corruption of Atlantic City by Nelson Johnson (who is currently a judge of the New Jersey Superior Court) and brought to the small screen by Martin Scorcese and Terrence Winter (The Sopranos scribe.)

Official synopsis:

Boardwalk Empire is set in Atlantic City at the dawn of Prohibition, when the sale of alcohol became illegal throughout the United States.

America in 1920: The Great War was over, Wall Street was about to boom and everything was for sale, even the World Series. It was a time of change when women got the vote, broadcast radio began and young people ruled the world.

On the beach in southern New Jersey sat Atlantic City, a spectacular resort known as “The Worldʼs Playground,” a place where the rules didnʼt apply. Massive hotels lined its famous Boardwalk, which featured nightclubs, amusement piers and entertainment that rivaled Broadway. For a few dollars, a working man could get away and live like a king – legally or illegally.

The undisputed ruler of Atlantic City was the townʼs treasurer, Enoch “Nucky” Thompson (Steve Buscemi), a political fixer and backroom dealer who was equal parts politician and gangster and equally comfortable in either role. Because of its strategic location on the seaboard, the town was a hub of activity for rum-runners, minutes from Philadelphia, hours from New York City and less than a dayʼs drive from Chicago. And Nucky Thompson took full advantage.

Can't wait for this one.

Fraud in the fine wine world

Wine writer Mike Steinberger has a great piece at Slate.com - What's in the bottle?  Steinberger investigates fraud in the fine wine world and billionaire George Koch's litigious efforts to root it out.

Oil spill victims battle for compensation in Nigeria

Via Al Jazeera: 

A cause, B cause, C cause, D (mark)

Most law reviews and journals have peer review of some kind, aimed at some independent review of the accuracy of the content of the proposed article. In most cases,  trade-specific tabloids such as The Lawyers Weekly will rely on the submitters to get it right.  The Lawyers Weekly recently published, in a "Focus" section, an article about aspects of proof of causation in tort. The article contains statements which are significantly wrong. I suggested that TLW should publish a correction. It said it would but limited to a letter of no more than about 450 words. I declined. I'm not Mozart but TLW isn't even Emperor Franz Joseph, let alone Salieri. Anyway, the link, here, is to a PDF file that contains my correspondence with TLW, a link to the article in issue, and my explanation for why the article is wrong on the points I discuss. The least of the errors is that the article makes asserts propositions  contrary to existing SCC case law. (In fairness to the author of the article, both the ONCA and the SCC did that, too, but the SCC has the last word ... in this life.)

[updated June 21 -  added "both the ONCA and"]

Edmonton city council approves noisy motorcycle bylaw

Edmonton became the first jurisdiction in Canada to crack down on noisy bikes tonight.  Under the new rules, "bikers will face a $250 fine if caught blaring their vehicles above a certain sound level.  Using standards developed by the Society of Automative Engineers, police will test the bikes for different decibel thresholds when they're idled or operating at various revolutions per minute."

Measures to broaden the law to include all motor vehicles failed but don't worry, the Council promises to pursue all noisy vehicles:

After the bylaw vote, council passed a second motion.  It called on city staff and police to create a report on enforcing noise standards for all motor vehicles.

We will keep on going, I promise," Henderson said.

This is not about picking on motorcycles.  This is about noisy vehicles."

Chinese farmer stands up to developers

Via Boing Boing:

A Chinese farmer has resorted to the use of shock tactics to defend his right to land ownership by using improvised rockets to expel demolition corps that have threatened to evict him for the construction of commercial buildings.

........

Yang said he was prepared to protect himself early this year after negotiations with local authorities over compensation for his use of the land failed and demolition workers hired by the property developer threatened to use force.

The farmland nearby has almost all been requisitioned for the construction of department buildings. And the developer seems eager to start the project, with ditches already dug around Yang's land signaling imminent mass construction.

Yang was offered 130,000 yuan ($19,000) at most for the land requisitioned last year, said Ye Aimin, an official with the local Jinyinhu community.

But Yang demanded almost five times the amount, citing local government policies specifying compensation details with regard to the right of land use.

Farmer defends his turf

Graphic abortion billboards to be rolling through Southern Alberta again

The mobile anti-abortion campaign by the Canadian Centre for Bio-Ethical Reform created a stir in 2007 and it's looking to turn a few more heads when it starts hitting the streets of Southern Alberta again.  The billboards - featuring graphic images of aborted fetuses - usually elicit some pretty strong reaction which is exactly what the pro-lifers want.   From the 2007 article: 

Gerald Chipeur, a constitutional lawyer at Calgary's Miller Thompson says it's only a matter of time before someone tries censoring Ms. Gray's truck.

"It's almost a predictable occurrence there will be a response, someone will complain, the authorities will be shocked and will try to shut it down."

Still, courts both in the U.S. and Canada, have consistently found that public displays are constitutionally protected.

 

The Good, the Bad & the Ugly of Bill C-32 The Copyright Modernization Act

The Conservative government introduced a new copyright bill on Wednesday.  The proposed changes are far-reaching and I do not intend to document them all. What follows is a brief review of some of the major, and more controversial, changes that are proposed under the bill.  Certainly, the bill is more balanced than the two previous attempts at a "digital age" amendment.  However the most draconian aspect of those previous bills remains - the protection of digital locks which has the potential to extend copyright protection indefinitely and to eviscerate user rights under the Act. 


The Good


The breadth of fair dealing rights has been expanded under the Act.  While the list of permissible purposes for fair dealing remains closed, new categories have been included:  education,  parody and satire.  Interestingly, this may extend user rights beyond those enjoyed in the US at least in connection with satire as a permissible purpose.  While the US Act has an open list of fair use purposes, its Supreme Court has rejected the use of copyrighted works for satirical purposes as opposed to parody (the basic difference being that a parody pokes fun at the work itself whereas satire will allow a  work to be used to target more general social phenomena).  The amendment then addresses more specific kinds of user rights such as the legality of remixing copyrighted works to create new works, e.g. posting a youtube video of a toddler dancing to a copyrighted song playing in the background. For those kinds of cases, it seems such activities would be on safe ground since a creator need only show a non-commercial use, no substantial adverse effect on the work, attribution of the source where reasonable, and reasonable belief that use of the copyrighted work was fair dealing.  When an activity goes beyond this type of case (say a viral video that has a substantial adverse effect on the work), resort should still be had to the general fair dealing provisions first (CCH tells us that the fair dealing provisions should be analyzed first before looking to the more specific exceptions).  While the private copy regime remains for audio recordings, private copies will be permitted for other works legitimately obtained.  Finally, time shifting has been legalized under the new Bill, i.e. people can record TV programs (but not on demand programs), sound recordings or other works for later enjoyment under certain conditions. 




The Bad


The most egregious aspect of the bill, and one which has been severely criticized for years in this country and the US (where it has long been in force) is the criminalization of tampering with digital locks.  Individuals are prohibited from circumventing, offering services or sale of technologies that circumvent "technological protection measures" designed to control access to or dealing of the work even for legitimate purposes. Thus, while you may be allowed under the new bill to make a private back up copy of a video you purchased, the manufacturer may place a digital lock that deprives you of that right and if you try to circumvent that lock, you may be criminally charged.  Similarly, if you want to deal fairly with the work in a remix, you will not be able to copy a clip for that legitimate purpose.  What's more, digital locks are forever and may not be tampered with even after the copyright has expired, i.e. when the monopoly is over and copies could otherwise be freely made.


The Ugly


The Bill enshrines a "making available" right through the internet in connection with both copyrighted works and sound recordings.  This removes any ambiguity that uploads onto peer 2 peer network will constitute copyright infringement.  The ugly (or at least unclear) part is determining which internet intermediaries that facilitate copyright infringement online will be liable, in any.  There seems to be an intention to exempt from liability "content neutral", "passive conduits" of internet connectivity and services which has been the law in Canada since the 2004 SOCAN decision. Even the making of caches copies (or I would argue any act) to improve efficiency and economy of the internet finds protection under the new bill provided it is content neutral. Furthermore, copyright holders may notify entities like host servers and search engines of infringement which imposes a duty on those intermediaries to notify content providers. The new bill, however, muddies the waters somewhat by imposing liability on intermediaries that provide services that they know or "should" know is designed primarily to enable acts of copyright infringement.  While it seems the provision is directed to sites that facilitate file sharing, the ambit of this provision may extend beyond that.  Should a host service provider receive notice of copyright infringement in connection with a customer site, would it then be under a positive duty to monitor the site thereafter for fear of being to deemed to know of any future infringements in an objective sense? While the "primarily" language of this provision (as well as the factor analysis for determining liability under the provision) sets an appropriately high threshold, I believe it would be better to add wording which indicates the target of the provision is non content neutral intermediaries.


If you are interested in monitoring the politics of this amendment, see Michael Geist's blog. It seems there is growing support for the bill.  In my view, the bill is fine if it were not for the digital lock provisions.  Given the seriousness of the consequences of those provisions, however, I do not recommend supporting this bill.
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Factual causes and substantial connections, or how to suck and blow at the same time

The Canadian legal system recognizes the rule that parties and witnesses are not permitted to "suck and blow at the same time". A CanLII list of cases citing that principle is here. This rule should be distinguished from its corollary (for which I have not been able to find any Canadian authority) that it is permitted to "suck and blow at different times."

Scahill and Koch debate the Gaza aid flotilla

Things got heated between author Jeremy Scahill and former NY City mayor Ed Koch this morning - During a commercial break, Scahill tweeted that Koch called him a "terrorist supporter" and he challenged Koch to say it on-air.  Koch didn't.

Visit msnbc.com for breaking news, world news, and news about the economy