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TV Commercials Too Loud?

http://news.yahoo.com/s/ap/20100930/ap_on_en_tv/us_congress_loud_commercials

DUTY TO PROTECT: Does the Canadian federal executive have a legal duty to protect Canadians stranded abroad? The topic has been much in the news over the past several years. William Sampson, Brenda Martin, Michael Kapoustin, Michelle Fung, Hussein Celil, Amanda Lindhout and Noah Kirkman are just a few names lately in the press. In Canada (Prime Minister) v. Khadr [2010] 1 S.C.R. 44, the intervenor the National Council for the Protection of Canadians Abroad argued such a duty exists (Dean Peroff of Toronto, counsel). The argument is compelling in the face of general sluggishness or inability or undue modesty on the part of the federal government in addressing these cases. That said, my reservation is that were such a duty to be found, it would signal the triumph of judicial fiat not just over parliamentary supremacy (for the Charter has largely killed that already) but over executive discretion (royal prerogative) as well. Reservations aside, I made the argument two weeks ago in the Calgary Herald, reprinted here:

Oregon's got nerve -- where's Canada's?
By Daniel Mol, For The Calgary Herald September 14, 2010 Comments (6)
Today, an Alberta judge will have a rare opportunity to send the message that Canadian citizenship really means something: The court can dismiss Oregon's lawsuit against Calgary mother Lisa Kirkman.

Lisa's now 12-year-old son Noah was apprehended by Oregon child welfare authorities during a cross-border visit in 2008 and held for two years -- this despite the willingness of his mother and Alberta child welfare authorities to look after him in Canada. Now, and with plenty of gall, Oregon is suing Lisa Kirkman in Alberta for the cost of Noah's foster care.

Aside from the injustice of being forced to pay a foreign government for depriving you of your own child, this case raises broader questions about the willingness of Canada to look after the interests of Canadian citizens stranded abroad. It is hard to imagine the United States meekly standing by were Canadian authorities to seize and hold for two years an innocent American child. For Americans, that kind of Canadian action might well verge on a casus belli.

Yet, by all appearances, the Canadian government was content to sit back and wait two years for an elected Oregon county judge to finally permit Noah -- a Canadian citizen -- to return home. What if the judge had decided to permanently adopt Noah to an American foster family? Would that have caused our government to take decisive action?

Canadian provincial child welfare authorities are at least as capable as Oregon's of caring for a 10-year-old. A transfer from Oregon to Alberta could have been arranged within days of Noah's apprehension. As it happens, when Noah finally returned to Canada after two long years, Alberta child welfare authorities returned him to his mother almost immediately.

Anybody who can remember their own childhood ought to shudder to think of the disruption and trauma that invaded Noah's world. Will Noah be the last innocent Canadian child hung out to dry like this?

Noah Kirkman is no Omar Khadr. Noah is accused of no crime. The United States had no interest in prosecuting Noah. Neither should we assume that our Charter of Rights and Freedoms will say the same about Noah that it has about Khadr. In Canada, (Prime Minister) v. Khadr, the Supreme Court of Canada declined to order our federal government to intervene further on Khadr's behalf, calling it a matter of executive prerogative. That might be understandable in Khadr's case, where the applicable foreign policy is complicated by war crimes charges. But would the Supreme Court say the same in Noah Kirkman's case?

When it fails to act publicly and decisively in cases like Noah's, the federal government puts its precious prerogative at risk. Legal jurisprudence has yet to develop, but our constitution may well attach a use-it-or-lose-it condition to executive discretion. Future cases like Noah Kirkman's promise to present far more difficult tests than Khadr for federal governments who hesitate to act.

The Supreme Court in Khadr said that when Canadian citizens are held abroad, Canadian courts cannot force the Canadian government to intervene. They should not have to. If anything, Noah's case emphasizes that point. If Canadian government intervention is not, as our Supreme Court seems to have said, a legal issue, it ought to be a political issue. Will Canadians accept the idea of an elected judge in a backwater U.S. county dictating to a G7 nation? What about tin-pot authorities anywhere else in the world?

In the absence of a signal shift in government policy to something beyond the purely ad hoc, Canadian parents have to think long and hard before sending their children abroad for any reason, even to supposedly friendly allied nations.

The same applies to Canadian companies trying to do business in a global economy. Can the Canadian government post-William Sampson be relied on to protect or repatriate Canadian employees mixed up with foreign authorities?

The present federal cabinet has had a good deal to say about restoring pride in Canadian citizenship and Canada's place in the world. Flexing some muscle on behalf of Canadians detained abroad -- starting with the likes of Noah Kirkman -- is the surest way to give meaning to the rhetoric.

Daniel Mol is an Alberta lawyer. He is legal counsel for Lisa and Noah Kirkman.

dan@moladvocates.com

Read more: http://www.calgaryherald.com/news/Oregon+nerve+where+Canada/3520047/story.html#ixzz10tLRiwBz

Yay or Nay: Part deux

The shortest law review article in  history

Frick!

Two issues:

First, Quicklaw and Westlaw need to either integrate Google Search Appliances into their products or deploy someone who can. Period. I don't know anything about technical things, so let some informed person take the reins on this issue. When I log in to Quicklaw or Westlaw, I want their normal search boxes along with one called Google Search. The fact is this: I can often phonetically enter a style of cause in Google and return the right case. Best of luck trying that on Westlaw or Quicklaw.

Here is an example:

1) On Google.ca, I type in "Dunsmur" and the first thing I get is “Dunsmuir v. New Brunswick”. Simple!

2) On Westlaw, I type in "Dunsmur" and get the dreaded "Results: 0 Documents". Fail!

3) On Quicklaw, I type in "Dunsmur" and get the equally dreaded "No Documents Found". Fail!

One of the best search tools I have ever encountered is the Google Search Appliance that manages Saskatchewan's Hansards. Need to selectively quote some juicy gossip about what a politician said in 1988, then look no farther:

Roy Romanow: "[W]hy is it that the private potash corporations outside of this country in New Mexico are thriving and not laying off people... ?"

Second and unrelated, the amount of human capital wasted on accurate footnotes must be astonishing. Are there many sources, no matter how poorly footnoted, that cannot readily be found with a Google search? As long as you've got the author's last name and a couple of words from the title, you can find almost anything. The most technophobic and marginally-intellectually-enfranchised Luddites could surely find almost any source, even if it didn't conform to the rightfully-maligned McGill guide.

Is my tone acerbic and hyperbolic? Yes. Is it warranted? Probably.

Yay or Nay?

In what promises to be a very inspired (and short lived?) series, I think I may feel drawn to hold up some legislative, juristic, or otherwise "legal" excerpt for no other reason than to show it as an instance of some considerable triumph or malfunction of the temporal lobe.

Today I give you section 24 of the Divorce Act.

"A document offered in a proceeding under this Act that purports to be certified or sworn by a judge or an officer of a court shall, unless the contrary is proved, be proof of the appointment, signature or authority of the judge or officer and, in the case of a document purporting to be sworn, of the appointment, signature or authority of the person before whom the document purports to be sworn."

What's a lawyer's job?

It is oft said that the role of legal rules should be to reduce transaction costs, but, as many have acknowledged, societies are anything but free of transaction costs.  G. Wool, co-editor of Canons of Construction and avowed anti-economist, suggested recently that the role of a lawyer should therefore be to transfer existing external transaction costs away from his or her client and towards opposing counsel's client.

Is this a reasonable role for lawyers?  In fairness, I hope I have accurately stated his argument.

The story of Anthony Graves

Featured in Texas Monthly next month is the chilling story of Anthony Graves - "Since August 23, 1992, Anthony Graves has been behind bars for the gruesome murder of a family in Somerville. There was no clear motive, no physical evidence connecting him to the crime, and the only witness against him recanted, declaring again and again before his death, in 2000, that Graves didn’t do it. If he didn’t, the truth will come out. Won’t it?"

Really, it's a must read.  Here's Jeff Blackburn of the Innocence Project of Texas on the story:

Ms. Colloff’s article describes the extraordinary ins-and-outs of a legal process that involved many fine lawyers working for years on the case. These lawyers- Pat McCann, Roy Greenwood, Jay Burnett, Ms. Casarez and others- barely saved their client’s life. They were ablocked and challenged by prosecutors at every stage of the proceedings.

Ms. Colloff also describes how little any of the legal wrangling has meant to Mr. Graves in practical terms. Eighteen years later, he is still in jail despite his new trial. New pro bono lawyers, of which I was one, have defended him. Mr. Graves now has the stellar legal team of Katherine Scardino and Jimmy Phillips, Jr. on his side. (Disclaimer again: these are both good friends of mine and Ms. Scardino is a member of the Board of Directors of IPOT.)

Ms. Colloff tells this story very well and in a way that makes sense to the average reader. She does more than that, however: she puts it into perspective. Why did Mr. Graves get charged in the first place? Why did the State cover up the truth about Carter’s recantations? Why did the State fight so hard to execute Mr. Graves despite all of the problems it had created? Why does it still insist on trying this plainly innocent man for capital murder?

There's also a video that accompanies the story  - http://www.texasmonthly.com/multimedia/video/home/15188/&t=Reasonable+Doubt

Blackwater and Canada

Jeremy Scahill writing yesterday in The Nation:

Over the past several years, entities closely linked to the private security firm Blackwater have provided intelligence, training and security services to US and foreign governments as well as several multinational corporations, including Monsanto, Chevron, the Walt Disney Company, Royal Caribbean Cruise Lines and banking giants Deutsche Bank and Barclays, according to documents obtained by The Nation.

......

In August Blackwater and the State Department reached a $42 million settlement for hundreds of violations of US export control regulations.  Among the violations cited was the unauthorized export of technical data to the Canadian military.

 

............

 

Some of the training Blackwater provided to Canadian military forces was in Blackwater/TRC's "Mirror Image" course, where trainees live as a mock Al Qaeda cell in an effort to understand the mindset and culture of insurgents. Company literature describes it as "a classroom and field training program designed to simulate terrorist recruitment, training, techniques and operational tactics." Documents show that in March 2009 Blackwater/TRC spent $6,500 purchasing local tribal clothing in Afghanistan as well as assorted "propaganda materials—posters, Pakistan Urdu maps, etc." for Mirror Image, and another $9,500 on similar materials this past January in Pakistan and Afghanistan.

According to internal documents, in 2009 alone the Canadian military paid Blackwater more than $1.6 million through TRC. A Canadian military official praised the program in a letter to the center, saying it provided "unique and valid cultural awareness and mission specific deployment training for our soldiers in Afghanistan," adding that it was "a very effective and operationally current training program that is beneficial to our mission."

Cops on camera

A nice little video from The Cato Institute on something that is becoming more prevalent - cops caught on camera:

Green police in Cleveland

Wendy McElroy writes in The Freeman on the efforts of Cleveland, Ohio to encourage recycling by requiring RFID (radio-frequency identification tags) equipped recycling bins  - Big Brother Is Watching You Recycle:

Bankrupt cities across North America will be watching the Cleveland experiment. At the first indication of success – that is, of revenue enhancement – debates on mandatory recycling will break out in a multitude of city council chambers. It is not enough to hope that the Cleveland experiment will be a debacle; it almost certainly will be one but, nonetheless, debacles are often profitable to those who conduct them.

Perhaps, unlike the British, Americans will object to an RFID chip monitoring their garbage on privacy grounds. This objection may well be valid but it does not touch on the motives of local governments that consider mandatory recycling schemes. Nevertheless, it may well be the strongest defense that can be mounted.

American-style democracy

 http://blogs.sites.post-gazette.com/index.php/opinion/rob-rogers-cartoons

Rape, but not by deception

In July, Ubaka posted Rape by Deception, reporting on a plea bargain under which a married Arab man was convicted of duping a woman into having sex with him by pretending he was Jewish and single. Ubaka sought to explore whether these acts constituted a tort or a criminal offence in Canadian law.

It now turns out that the real story was far more complex. Although the verdict for rape by deception still stands, the original complaint and criminal charges were for rape by physical force. The complainant, who was a troubled youth and living in a women's shelter, testified that the man lured her into a building and sexually assualted her over her resistance. And while the medical records from the hospital in which she was treated supported the complainant's story, the prosecution felt during the trial that due to her background and history, which may have included prostitution, that it would be difficult to obtain a conviction without putting her on the stand again – and even then conviction would not be guaranteed. The prosecution therefore agreed to a plea bargain, which came under severe criticism from jurists and commentators when it was converted into an 18 months prison sentence.

It took some time for these facts to emerge, because the trial was held in closed court. The media's request to release the records was granted last week, but the story was only translated into English yesterday, here. Some journalists have expressed remorse about all too quickly parading a rapist as a victim of racism: e.g., here.

Legally speaking, only the facts in the revised indictment stand. The Supreme Court will review the verdict based on the charges described there. But there is always a story behind the story.