Here is what Justice Corbett of the Ontario Superior Court of Justice had to say recently in Sri Guru Nanak Sikh Centre Brampton v. Dhadda,

[1] It is not open to anyone involved in the plaintiff to dispense with the law because they think they are wise and know what is best. “Tradition” is not a basis for ignoring the law.

…

[4] The plaintiff has a long sad history of conflict. And this just has to stop. It is an embarrassment: the plaintiff is an important religious, social and cultural institution. The conflicts have been riotous, often petty, and are concerned with issues of control, and not the high-minded principles cited as justifications for this lawless behaviour.

[5] Snowie J. stated, roughly ten years ago: a “more business-like approach” to managing the affairs of the plaintiff would be in everyone’s best interests. Methinks Her Honour spoke too softly. No doubt she was moved by the fact that this is a religious and charitable institution, and the members and directors are unpaid volunteers. Apparently her message did not get through to everyone.

…

[11] Some of the defendants have engaged in gross misconduct in the conduct of this litigation. For them apparently, the ends justify the means. It is offensive that some defendants should perjure themselves so blatantly in their evidence. The ends do notjustify the means. Through their misconduct, these defendants have, in the end, only discredited themselves.

[12] Litigation is not some childish game. It is serious process of conflict resolution. It is not acceptable to lie under oath or to falsify documents to try to win a lawsuit for control of a temple.

[13] I understand that these are emotional issues for the parties. Some of the defendants have played key roles in founding and building the plaintiff. Together with some of the plaintiffs, they have built a wonderful and vibrant institution. But they do not own it. And these defendants’ past good deeds and leadership do not justify their misconduct.

With an opening like that, you know the facts have to be juicy. And they are, if not also complex and convoluted, and filled with an emotion.

But there are also some general principles of advocacy worth gleaning from the judgement too,

[290] A factum is written argument. That does not leave it open to deliver a written polemic. There should be a “facts” section of the factum, that underpins the argument. It is currently popular to blend facts and arguments. In my view, when this is done properly, it makes it easier to grasp the argument and evaluate the arguments. Where, as here, the recitation of the facts is the argument, and is not referenced to the evidence, the factum fails in its task to persuade. It creates suspicion in the mind of the judge. And so every controversial statement of fact must be checked to ensure its accuracy.

[291] Conclusions, or inferences, are of no value when stated baldly.

[292] Good advocacy is not the presentation of conclusions of inferences in a patterned argument. That is necessary, of course, but that is the easy part. Good advocacy is the careful selection and organization of facts that lead to the conclusions or inferences that then feed to a particular conclusion. The absence of a clear recitation of facts from which inferences or conclusions might be drawn has left it to the court to review the evidence to determine if there is evidence in the record to support the broad assertions in the defendants’ factum.

And if that doesn't have you reading the case for more, I'm not really sure what will.

The Supreme Court is scheduled to hear the appeal in Clements (Litigation Guardian of) v. Clements, 2011 BCCA 581, reversing 2009 BCSC 112; leave to appeal granted 2011 CanLII 36004 (SCC) on February 17, 2012. The Supreme Court’s summary of the issues in the appeal suggests that that all the Court was asked to do is clarify the meaning of the Resurfice material contribution test for proof of the causation requirements in causes of action in negligence and, then, determine the correct result in Clements based on that test. See http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=34100.

That is an accurate enough summary of what was in Ms. Clements (the appellant’s) leave to appeal factum. It is not an accurate summary of what is in her factum. The appellant (Ms. Clements) has explicitly asked the Court to decide if the causation issue ought to have been decided in her favour on the bases of the but-for test, in particular the “robust, pragmatic, common sense” approach mandated by Snell v. Farell [1990] 2 S.C.R. 311, 1990 CanLII 70. The parties’ factums are available on the Supreme Court’s web site. See http://www.scc-csc.gc.ca/case-dossier/cms-sgd/fac-mem-eng.aspx?cas=34100. That is not a problem because the Supreme Court’s mandate, having granted leave, is to make the decision that ought to have been made by the lower court from which the appeal comes; or order a new trial if that is the proper decision (if the decision appealed from was “against the weight of the evidence); or remand the appeal or any part of the appeal to the court appealed from for additional consideration in accordance with the direction of the Court: the Supreme Court of Canada Act, R.S.C. 1985, c. S-26, ss. 44-46.1.

The Supreme Court panel in Clements could have three judges who were appointed to the Court after Resurfice was decided. It will if the panel is the full 9 member court. It will have at least 1 new judge if the panel is composed of seven judges. Justices Cromwell, Moldaver and Karakatanis are the new appointments. Justices Bastarache, Binnie and Charron have retired. Only Justice Cromwell has expressed a judicial opinion on the meaning of Resurfice in reported reasons for judgment. Only Chief Justice McLachlin and Justice LeBel J. remain from the panel that decided Walker Estate v. York Finch Hospital, [2001] 1 S.C.R. 647, 2001 SCC 23. Only McLachlin C.J. remains from the panels that decided Snell and Athey v. Leonati, [1996] 3 S.C. R. 458, 1996 CanLII 183.

A colleague’s comment about the granting of leave in Clements was “here we go”. My immediate reaction was to add “again”. I hope I am wrong.

On the other hand, the Continuing Legal Education Society of British Columbia's (CLE BC) first "Causation in Tort" conference was held in Vancouver in June 2008, about 1 year after Resurfice. "Causation in Tort II" was held in Vancouver in June 2011. It will probably be late 2012 or early 2013 before the Clements reasons are released, assuming that Supreme Court concludes that the case requires something more than a brief oral judgment. Assuming the Supreme Court does attempt, again, to clarify the jurisprudence, it will probably take a year or so before the Clements reasons will have been considered often enough by the provincial and territorial courts that clear trends will be apparent. So mid 2014 will be just about time for "Causation in Tort III" in Vancouver, in May or June. (If you've spotted a trend, you're right.)

For those who care about such things, the materials from both "Causation in Tort" conferences are very good* and reasonably priced. They are available through the CLE BC web site store. (No, I don't get direct kickbacks but if enough people by the material that'll probably hint at some reason for the next conference.)

(*Full disclosure – I was involved in the preparation of some of the materials in both conferences. The "Causation in Tort II"  material includes sample factums for a mock appeal to the British Columbia Court of Appeal that was part of the "Causation in Tort II" programme. The factums cover a wide range of issues. The unfortunate plaintiff – an otherwise successful British Columbia lawyer – somehow managed to develop both AIDS and mesothelioma, then be killed in a rather complicated motor vehicle accident while on his way to an appointment with one of his doctors. The appeal dealt only with liability.)

Library Boy told us last year about some tentative steps that courts were making to embrace – or to sniff around tentatively – the whole subject of social media. Today's announcement from the UK Supreme Court that it will start official tweets of judgments – this in anticipation of the Assange extradition decision – represents the first wholesale adoption by a final court of appeal.

It overshadows Chief Justice McLachlin's announcement within a speech at Carleton University on the Media and the Courts, that the Canadian judiciary should start to think seriously about social media.

See the Globe, the Star, CTV and the Halifax papers

You can see a brief video clip here.

I understand that the Australians may be thinking about the issues too.

What is the responsibility of a public body to notify a third-party when a request for information is made? The Supreme Court of Canada considered this question in Merck Frosst Canada Ltd. v. Canada (Health), on appeal from the Federal Court, and released this week. Although the appellant's appeal was dismissed by the court, they did highlight some areas of improvement for the drug application process.

A competitor of the appellant pharmaceutical company, Merck Frosst, requested information under the Access to Information Act about submissions Merck had made to Health Canada. The submissions were required under the Food and Drug Regulations to bring Merck's Singulair® to market. They consisted of a New Drug Submission (“NDS”) and a Supplementary New Drug Submission (“SNDS”) that contained full and frank disclosure of all knowledge and information that the appellant had about the asthma drug, including list of ingredients, details of manufacture, tests for potency, purity, stability and safety, and detailed safety tests. Some of this information is eventually contained in the Product Monograph when the product is approved, but the contents are subject to discussions and negotiations between Health Canada and the pharmaceutical company.

Background

At issue was the appropriate balance between access to information for accountability and strengthening democracy, and private interests necessary to foster research and innovation. Justice Cromwell referenced Justice La Forest's statement in Dagg v. Canada (Minister of Finance) to explain the purpose of the Access to Information Act,

On receiving the information request from the appellant's competitor, Health Canada identified 30 out of 550 NDS pages and 60 of 300 SNDS pages that could not be disclosed under s. 20(1) of the Act,

20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains

 (a) trade secrets of a third party;

 (b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;

 (c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; …

The court noted that this section must be read in conjunction with substantive protections in s. 25,

25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.

Health Canada notified the appellant of the request when it was made under s. 27(1), but Merck indicated that all of the NDS and SNDS information were confidential trade secrets subject to s. 20(1), with the exception of already published studies and the Product Monograph. Health Canada took this into consideration and made further redactions, but provided disclosure to the competitor. As a result, Merck filed for judicial review. Five decisions preceded the hearing before the Supreme Court.

On the initial application, Merck was successful in part. The Federal Court held that Health Canada could not disclose any part of the record without prior notice apart from a public document called a Notice of Compliance. A unanimous decision on appeal remitted the matter back to Federal Court over a misinterpretation of s. 20(1)(b).

The rehearing found that Health Canada should have conducted its own thorough review before putting the onus of refusing the disclosure on Merck. Health Canada agreed to conduct further redactions. Some trade secrets were found by the court in the submissions, and Merck successfully obtained a declaratory order over the lawfulness of the procedure followed.

The Federal Court of Appeals then concurrently heard two appeals and cross-appeals. A unanimous court upheld the appeals and dismissed the cross-appeals, and held that the notice obligation only arises where s. 20(1) information is contained, and disclosure without prior notice otherwise does not contravene the Act. The interpreted the trade secrets exemption narrowly and with a high threshold, and required direct and objective evidence to demonstrate confidential information. The court found that Merck did not provide sufficient evidence in this respect.

Decision

Justice Cromwell for the majority indicated that government institutions must make reasonable efforts to give third parties written notice of requests for disclosure except where a waiver has been made. He applied the "modern approach" of statutory interpretation, also referred to in the literature as the "informed interpretation approach" or "pragmatic dynamism,"

[64] …the words of a provision are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament…

He held that s. 27 created a low threshold to trigger the notice requirements, but rejected the appellant's position that there as an automatic right to notice,

[64] …The grammatical and ordinary sense of s. 27(1) makes plain that notice is required only if certain conditions are met in the particular circumstances. The section does not refer to particular categories of documents but rather to particular types of information that are or may be contained in records otherwise subject to disclosure. The subsection sets out specific conditions precedent for engaging the notice requirement. As the Federal Court Trial Division put it in words that were endorsed by the Federal Court of Appeal: “The essential condition precedent to the issuance of the notice is that the respondent has reason to believe the disclosure of the record might be contrary to his obligation under section 20 not to disclose records”

He concluded at para. 84,

(i) With respect to third party information, the institutional head has equally important duties to disclose and not to disclose and must take both duties equally seriously.

(ii) The institutional head:

- should disclose third party information without notice only where the information is clearly subject to disclosure, that is, there is no reason to believe that it is exempt;

- should refuse to disclose third party information without notice where the information is clearly exempt, that is, where there is no reason to believe that the information is subject to disclosure.

(iii) The institutional head must give notice if he or she:

- is in doubt about whether the information is exempt, in other words if the case does not fall under the situations set out in point (ii);

- intends to disclose exempted material to serve the public interest pursuant to s. 20(6); or

- intends to disclose severed material pursuant to s. 25.

He noted that both parties took extreme positions and hoped for a more cooperative and constructive approach in the future, because the Act only functions when the parties cooperate. The institutional head cannot shift their responsibility on the third party and the third party must provide assistance in helping them carry out their duties,

[90] From the third party’s perspective, it is, of course, prudent and in accordance with common sense to be as helpful as it can be in identifying precisely why disclosure is not permitted. Nonetheless, the head must make a serious attempt, with the available information and having regard to the practical constraints, to discharge the responsibility imposed by the Act to apply the requirements to disclose or not disclose…

Eileen Vanderburgh of Alexander Holburn Beaudin & Lang LLP summarizes the relevance of the decision on the Information and Privacy Blog,

This decision confirms the obligations of a public body in dealing with requests for third party information and the rights and obligations of a third party seeking to restrict access to information it has supplied to a public body. In some cases private sector organizations can address their rights to notice of access requests for their information by way of contract, or by clearly advising the public body that it considers the information it is supplying to be confidential and within the category of information that is excepted from disclosure under any applicable access legislation, thereby triggering the obligation of the pubic body to provide notice. However, neither contract language nor statements of confidentiality will determine whether or not the records at issue are in fact excepted from disclosure.

The Paris court of appeals has decided that a suggested search query generated by the Google Suggest function defamed the company whose name was first entered into the search box. This feature works by displaying the most popular searches performed by other Google searchers associated with the text typed into the search box. So Google doesn’t decide what is displayed; its machines just count and show.

Turns out that one of the most popular associations with the name of the plaintiff company was ‘escroc’, which in French means crook or swindler.

Is this a kind of ‘crowd-sourced’ defamation? What can Google or any search engine realistically do about it? Can the company program its suggestion feature to avoid any words in any language that may have a defamatory meaning? (I guess defamation by context or innuendo may be harder to demonstrate in this process.)

Would it be defamatory if a search for Company X turned up, as an ‘auto-suggest’, CompanyXSucks.com?

The damages were pretty stiff, it seems to me – 50,000 euros.

So: is there a problem here, in your view? Would Canadian law produce the same result? How would you advise your client, the search engine? What about your client Company X, in my hypothetical?

The Quebec Bar Association last week published its first annual report card on the rule of law in the province, or Bilan de l’état de droit au Québec (in French only).

In the report, the Association summarizes its public interventions over the past year.

But what appear fairly unique are its efforts to measure the level of respect for the "rule of law" by authorities in the province and in Canada according to 4 criteria:

• public authorities and their representatives are subject to the law and courts are independent
• the protection of rights and freedoms of all citizens is assured
• the laws are stable and predictable
• access to justice is affordable

Overall, the Quebec Bar concludes that citizens of the province can have confidence in the rule of law in Quebec and Canada.

But there are grounds for worrying that certain rights are being eroded, states the report. And, according to the Bar, on certain occasions, the State has departed from respect for the rule of law.

The report mentions:

• reform of the Criminal Code (in particular, the proposed expansion of mandatory minimum sentences is criticized for threatening the ability of judges to make sentences correspond to the individual circumstances of each case)
• the growing "trivialization" (banalisation in French) of immunity from prosecution of certain categories of citizens and organizations, usually for economic reasons. The report mentions legislation that eliminated the right of citizens to sue snowmobilers or off-road vehicles for nuisance or damages to their property. It also refers to the proposed bill that would protect the City of Quebec from ever being sued over the building of a new sports/entertainment amphitheatre
• diminishing access to justice due to rising legal costs

It will be interesting to see if the idea of annual reports on respect for the rule of law spreads to other provinces and territories.

With Parliament back in session, we are seeing more attention on the proposed "lawful access" legislation. There is good reason for that. Many of us believe the proposed legislation is an affront to privacy, and gives law enforcement overly intrusive rights without court supervision that will in practice be no more than expensive, invasive, privacy offensive security theatre.

In this CBC interview, Ann Cavoukian, the Ontario Privacy Commissioner, does an excellent job of explaining the issue. Well worth investing 7 minutes to watch.

The state of Indiana may soon become the 23rd state in the US to adopt right-to-work legislation. With the Senate Committee having already passed the Bill, it will go to the full Senate. If there are no amendments, the governor of Indiana could be signing the Bill as early as tomorrow (see a news article here).

Back-to-work legislation prohibits contracts between employers and unions which require all employees to pay union dues as a condition of employment. As such, this type of legislation gives the non-member employee the option of paying union dues (or not). Supporters of this type of legislation believe that it makes the market more competitive and brings greater investment into the state. Those against right-to-work legislation see it as the government's attempt to "bust" unions and will lead to lower wages.

In Canada, we have the Rand formula which forces all employees, whether members of the union in place or not, to pay union dues, as it is considered that all employees benefit from the negotiated terms and conditions of employment. The Supreme Court of Canada has already decided that the forced payment of dues does not constitute a violation of the freedom of expression and that if there were a violation of the freedom of association, it was saved by section 1 of the Canadian Charter of Human Rights and Freedoms. In a day and age where the role of the trade union is questioned, would or should right-to-work legislation have a place in Canadian labour law?

After a 6 week break the Members of Parliament return to Ottawa today starting at 11 am ET. The Projected Order of Business mentions resumption of the debate over Bill C-25, Pooled Registered Pension Plans Act. CBC's Kady O'Malley has her take on today's proceedings over on the CBC website.

We are expecting a new Federal budget in the next few weeks. And according to CBC News Now, other major legislation that will be dealt with this session includes immigration, financial services review, copyright reform (Bill C-11), the omnibus crime bill (Bill C-10) and doing away with the long gun registry (Bill C-19).

Coverage is currently available from the CBC Politics page. You can also see Kady O'Malley's live coverage via Twitter from the Hill Ticker.

The Senate returns tomorrow.

Fair use (s. 107) is an intentionally drafted ambiguous provision in the U.S. Copyright Act for the purpose of defending users of copyright works from a variety of otherwise infringing acts. Although often compared to the Canadian fair dealing, the two defenses are quite different. Two interesting documents on the analysis of fair use and its interpretation were recently released.

General Counsel from the U.S. Patent and Trademark Office released a memorandum on 19 January 2012 on: USPTO Position on Fair Use of Copies of NPL Made in Patent Examination. The memorandum looks at three issues: Whether it is fair use of the USPTO to make copies of copyrighted non-patent literature (NPL) and provide such copies to an applicant in the course of patent examination? Whether it is fair use for the USPTO to provide certified copies of entire file histories, including copyright NPL to members of the public, for a free? Whether it is fair use for an applicant to make a copy of a piece of copyrighted NPL and submit it to the USPTO?

Code of Best Practices in Fair Use for Academic and Research Libraries was published on 25 January 2012 by the Association of Research Libraries and the Center for Social Media. This document addresses various questions such as how to make libraries' special collection available online; what can be digitized for student use; and, reproducing materials for faculty, staff and other users.

Those who apply fair dealing or fair use or are generally interested in these topics will find the discussions and analysis interesting in both of these documents, though at the end of the day, the application of either of these defenses very much depends upon the circumstances in each particular situation.

Steven Slevin had a lifelong history of mental illness. On August 24, 2005, Slevin was charged with driving while intoxicated and receiving or transferring a stolen vehicle, and checked into the Dona Ana County Detention Center.

He was placed in solitary confinement, and remained there for approximately 18 months. He was briefly released for 14 days to receive psychiatric care and was returned to solitary confinement, for a total of 22 months, before the charges were dismissed and he was released on June 25, 2007 due to incapacity of participating in his own defence.

Slevin files suit on December 23, 2008, and on January 24, 2012 a jury awarded him $22 million, $6.5 million in punitive damages, and $15.5 compensatory damages for deprivation of constitutional rights, including the right to humane conditions of confinement, the right to receive adequate medical attention, and depriving him of procedural due process.

The court documents, including the complaint, trial briefs, and jury verdict, are available here. The county is expected to appeal the decision.

The inability of prisons to deal with mental health problems has long been recognized. The World Health Organization (WHO) estimates there are 450 million people with mental illness, who are highly represented in prisons populations,

The disproportionately high rate of mental disorders in prisons is related to several factors:

• the widespread misconception that all people with mental disorders are a danger to the public;
• the general intolerance of many societies to difficult or disturbing behaviour;
• the failure to promote treatment, care and rehabilitation,
• and, above all, the lack of, or poor access to, mental health services in many countries.

Prisons are often used as a dumping ground for those with mental health, and conditions there usually exacerbate mental health disorders. Improper treatment of mental health also has a cost to prison operations, because such inmates require specialized care and often more attention than others who are incarcerated. The high cost of incarceration, rather than publicly-funded medical care, means that the costs of inappropriate treatment of the mentally ill are passed on to the public.

Although damages as high as those awarded to Slevin would not likely be found in Canada, it is a reminder of the public cost of the government's omnibus crime package, Bill C-10. Jerry Madden, a conservative Republican and head of the Texas House Committee on Corrections, responded to Bill C-10 last fall,

It's a very expensive thing to build new prisons and, if you build 'em, I guarantee you they will come. They'll be filled, OK? Because people will send them there.

Let's just remember who we will inevitably be filling these prisons with.

Globalization takes its toll. This time the toll is to be paid by Americans who want to use works that had, according to US law at the time, entered the public domain but that have been removed from that status and place back under copyright by a 1994 act of the US Congress in order to bring that country into line with the Berne Convention for the Protection of Literary and Artistic Works. As you might imagine, a number of disappointed users sued the US government, arguing that according to the intent of the Copyright and Patent Clause of the American constitution once a work was in the public domain it could not be withdrawn from it. Last week the case was ruled on by the US Supreme Court in a 6-2 decision, Golan v. Holder, No. 10-545 [PDF]. Justice Ginsburg, writing for the majority, ruled that the law in question:

does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit.

As always, the SCOTUSblog is an excellent source for material surrounding the decision. To learn more about the musician, Lawrence Golan, who challenged the law, take a look at a couple of articles on the issue in The Chronicle: 1, 2.

The works affected in 1994, judged to number in the millions, are largely works by non-Americans that, as foreign works, were not as protected by copyright as were native works. The "recaptured" works included music by Prokofiev, Shostakovich, and Stravinsky; and:

books by H.G. Wells, Virginia Woolf, and C.S. Lewis; films by Alfred Hitchcock, Federico Fellini, and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso.

Canada ratified the Berne Convention in 1931, signed it in 1948, and acceded to current forms in 1970 and 1998.

Last year I told you about the plan to release a voluntary national standard for mentally healthy workplaces. The standard aims to help Canadian employers support the psychological health and safety of their employees by providing them with the necessary guidelines and tools to achieve measurable improvements in psychological health and safety in the workplace. A draft of the standard was released on November 1, 2011 without much coverage and a consultation period followed which ended January 6, 2012. The final Standard is expected to be published in late summer 2012.

Unfortunately, since the consultation period is over, the draft of the standard is no longer available online. You can still obtain a copy by calling the CSA Standards or any of their partners championing the development of the Standard.

Luckily, Cheryl A. Edwards and Shane Todd from Heenan Blaikie LLP have prepared a very in-depth analysis of the proposed Standard and you can view it here.

According to the Mental Health Commission of Canada, mental illnesses and mental health issues are the leading cause of short- and long- term disability in the country. The cost of dealing with these issues is in the range of $51 billion per year, with almost $20 billion of that amount coming from workplace losses.

Thus, it will be interesting to see how the government, advocacy groups, associations like the CSA, mental health agencies and private sector will assist employers with solutions, resources and tools to deal with this important issue.

Adding to David Canton's post this week, updating us on privacy and data protection developments, here is a release from our friend, Ontario's Information and Privacy Commissioner, Dr. Ann Cavoukian. And an interview with Steve Paikin at TVO.

It's NOT "just a number!" Commissioner Cavoukian warns of the ease of data linkages in an increasingly online world

TORONTO, Jan. 25, 2012 /CNW/ – Ontario's Information and Privacy Commissioner, Dr. Ann Cavoukian, says that people's perceptions of their privacy and anonymity online fall far short of reality. In fact, technology has evolved to the point that the seemingly unrelated pieces of information that people share about themselves online, may now be linked together, to create a detailed profile of an individual.

"We have reached a point where information – not only strongly-identifiable Social Insurance Numbers, but also IP addresses, licence plate numbers, and mobile devices – serve as pointers to personally-identifiable information, through an ever-expanding web of data linkages. This bears little resemblance to anonymous information," the Commissioner said.

New analytic tools and algorithms now make it possible – not only to link numbers to names – but to also combine information from multiple sources, ultimately creating an accurate profile of a personally-identifiable individual – and in the process, to reveal their online activities.

"Imagine a scenario where your 'anonymous' comments on a newspaper website or in an online chat forum, could be tracked back to you personally, simply by linking your IP address and browser data across multiple platforms," the Commissioner said.

The Commissioner's advice to consumers: As people share more and more personal information about themselves in new ways (such as personal blogs and social networking sites), they need to consider the nature of the information they share, and how their personal information might be used.

At the same time, she urges organizations that collect and use this data to offer consumers a clear, easy-to-use mechanism to opt out of the collection and use of their personal information. Better still – make privacy the default setting.

Getting the privacy balance right is not easy, from both theoretical and practical perspectives. As examples, here are some recent developments that go both ways.

Pro Privacy

• Proposed Bill C-12 amendments to PIPEDA that would mandate privacy breach notification in certain circumstances.
• The Ontario Court of Appeal decision in Jones v Tsige that created a tort of breach of privacy, or "intrusion upon seclusion" for intentional, offensive privacy invasions.
• The US Supreme court decision in US v Jones that decided police need to get a warrant before attaching a GPS tracking device to a vehicle.

Anti Privacy

• Proposed Bill C-12 amendments to PIPEDA that encourage private entities to give personal information to law enforcement without warrants.
• Proposed "Lawful Access" legislation that allows police to obtain a significant amount of information about our mobile phone and internet accounts without a warrant, and would require ISP's to retain certain information about us.
• The Supreme Court of Canada's refusal to hear the appeal of the Leon's case where the Alberta Court of Appeal said that license plates are not personal information.

English news sources reported yesterday that a three-judge panel of the High Court found Theodora Dallas, until recently a university lecturer in psychology, guilty of contempt of court and sentenced her to six months imprisonment. She will serve the first three in jail and "be on license" for the second three.

Dallas was on a jury trying a case of grievous bodily harm. The trial judge had given jurors clear instructions not to look up matters connected to the trial. At home, she searched the term "grievous bodily harm" and then put it in conjunction with "Luton," producing a result that showed the defendant had once been charged with (and acquitted of) rape. Dallas told other jurors during their deliberation what she had found in this way, with the consequence that, when this breach was reported to the trial judge, the trial was stopped.

A written judgment is not yet available online, so far as I can find. However, lengthy excerpts are available in a story in the Guardian. The story is also carried by the BBC, and The Register, among others.

This is not the first time an English court has dispensed a stiff penalty for disobeying instructions to a jury to stay off the internet. In June of this year a juror who used the internet to contact a defendant who had been acquitted earlier in the large trial was sentenced to eight months in prison.

As might be imagined, this case has once again raised concern and comment about the difficulty of conducting jury trials in this day and age of ubiquitous internet access. It will be difficult if not impossible, I suspect, to persuade obstreperous or "Bolshy" jurors that they mustn't do what they can so easily do in fact — and with little fear of getting caught if they keep their mouths shut.

The Library of Parliament's Information and Research Service has released a background paper, "Legal Status at the Federal Level of Assisted Human Reproduction in Canada" [PDF] by Sonya Noris and Marlisa Tiedemann. The paper takes the reader though the recent history (1990 – present) of federal attempts at the regulation of this set of developing medical practices, culminating in a brief analysis of the Quebec constitutional challenge to the Assisted Human Reproduction Act culminating in the ambiguous / ambivalent response of the Supreme Court (4-4-1, so to speak) in Reference re Assisted Human Reproduction Act 2010 SCC 61.

According to the backgrounder, "the federal Minister of Health’s office simply noted that they would 'take the necessary time to review the decision.'" Nothing has been forthcoming since that time, though it may be that the existence of the background paper bespeaks a revival of government interest. For, if the legal situation isn't busy developing, the technology certainly will be, bringing with it trying ethical and legal questions.

Just to remind you about what that technology might entail, here's a list of practices from the backgrounder that have at one time or another been forbidden or heavily frowned on:

• cloning of human embryos;
• commercial preconception or “surrogacy” arrangements;
• buying and selling of eggs, sperm and embryos;
• egg donation in exchange for in vitro fertilization services;
• germ-line genetic alteration (genetic alteration that can be passed to subsequent generations);
• ectogenesis (creation of an artificial womb);
• sex selection for non-medical purposes;
• creation of animal/human hybrids;
• retrieval of eggs from cadavers and fetuses for donation, fertilization or research;
• transfer of embryos between humans and another species;
• research on embryos beyond 14 days of development;
• creation of embryos solely for research purposes;
• use of human eggs, sperm or embryos for a reproductive procedure or for medical research without the informed consent of the donor; and
• offers to provide or pay for any prohibited practices.

Here are just a few links to what seems the most thoughtful commentary on the aftermath of the Jan. 18 Blackout. Add more in the comments, if you got 'em.

• SOPA support in Congress
• PIPA vote postponed
• Why the strategy failed
• Whose daily life the blackout affected
• The significance of the effort
• The whole thing explained in 13 minutes

Also, using copyright laws to justify civil rights infringements is not over

One year ago I wrote about Brian Coldin, a naturist and owner of a nudist resort in Barrie, Ontario, who was charged with three counts of being nude in a public place and two counts of being nude and exposed to public view while on private property. As part of his defence, Coldin launched a constitutional challenge to the Criminal Code provisions against public nudity. He states that the Code limits his freedom of expression and is too broad.

On Thursday January 12, 2012, Justice Jon-Jo Douglas convicted Coldin on the three counts of being nude in a public place. Douglas upheld the constitutional validity of Canada’s public nudity laws stating, "requiring people to wear some modicum of clothing when in public is a reasonable limit." The judge found the law prohibiting nudity in a public place doesn't infringe on freedom of expression or the right to practise naturism.

On the other hand, however, the judge did state that aspects of the legislation that restrict nakedness on private property have little to do with the preservation of order and decency:

It is difficult to conceive how public order and decency is preserved by preventing people from going unclothed on private property even when they are visible to others."

Thus, Coldin was found not guilty on two counts of being nude and exposed to public view while on private property, the clothing-optional resort he operates in the Bracebridge area.

Coldin was sentenced to two years probation and $3,000 in fines.

In my last post, I asked: Is the law so outdated and imperfect that it should be re-examined by Parliament? The answer, from the Court at least, is: not yet!

To this end, the judge added:

Coldin's actions expressed "not much more than his desire to be publicly nude."

Attending at the pickup of Tim Hortons, of A&W, without one's pants expresses little meaning about naturism to others, and it is certainly not perceived as having important meaning."

Coldin may appeal. He and other naturists may look for support to Judge Douglas's comments about being nude on private property but visible to the public. But that's only a small part of what Coldin is seeking, and the Supreme Court doesn't seem likely to open up a wider debate on the topic.

I guess we'll just have to keep our eyes open and perhaps Coldin and his case will get more exposure. Of course, I doubt Coldin is so brazen in his protest at this time of the year in Barrie.

Summary

Historically actions around privacy stemmed from concepts of trespass in the common law, and were only recognized as cearly actionable where stipulated by statute. An Ontario Court of Appeal decision today, Jones v. Tsige, changed that by recognizing the tort of invasion of privacy.

The action arose between two employees in a bank who did not know or work with each other. The plaintiff had a common law relationship with the former husband of the defendant, and the defendant acknowledged looking at the plaintiff's bank information without just cause or reason on multiple ocassions.

The plaintiff claimed $70,000 for invasion of privacy and breach of fiduciary duty, and punitive damages of $20,000. The plaintiff moved for summary judgment, but the action was dismissed when the defendant was successful on the motion in claiming that there was no tort for breach of privacy in Ontario.

The Court of Appeal reversed the decision in part and awarded $10,000, recognizing a right of action for intrusion upon seclusion to reflect the changing needs of society.

Analysis

Sharpe J.A. wrote for the court, and accepted the proposition by William L. Prosser in his 1960 article, “Privacy,” that the common law actually developed four different types of related torts for breach of privacy:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness

Sharpe J.A. determined that this case fell into the first category and restricted commentary on this cause to avoid deciding on issues beyond the facts before the court. After reviewing the case law on the subject, he concluded that Ontario courts were not far from recognizing a common law right to privacy and had been moving in that direction for some time.

In particular, he considered Euteneier v. Lee, which was relied upon heavily by the motions judge. Any references to privacy interests by the plaintiff in Euteneier were particulars of other causes of actions or consequences of the actions by the defendant, and for that reason it was considered an error to treat those allegations as causes of action that could stand alone.

Sharpe J.A. also discussed s. 8 Charter rights and identified three distinct privacy interests:

1. personal privacy
2. territorial privacy
3. informational privacy

Although the Charter would not necessarily apply to actions between private parties, Sharpe J.A. referenced Heenan Blaikie's John Craig and stated that it was consistent to develop the common law to reflect Charter values.

Finally, the court reviewed privacy legislation such as the Personal Information Protection and Electronic Documents Act (PIPEDA), the Personal Health Information Protection Act (PHIPA), the Freedom of Information and Protection of Privacy Act (FIPPA),the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), and the Consumer Reporting Act, as well as privacy law and legislation in other jurisdictions.

The discussion about the pace of technology and the needs of the law to keep up with change was worth noting,

[67] For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially. Legal scholars such as Peter Burns have written of “the pressing need to preserve ‘privacy’ which is being threatened by science and technology to the point of surrender”: “The Law and Privacy: the Canadian Experience” at p. 1. See also Alan Westin, Privacy and Freedom (New York: Atheneum, 1967). The internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.

[68] It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.

Elements of the New Tort

The court adopted the wording of the American Restatement § 652B to define intrusion of seclusion, which was itself imported from Prosser,

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The court also referenced the comments to the Restatement to emphasize that non-physical forms of investigation were also included,

Comments:
a. The form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.
b. The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.

The court lay out the elements of this cause of action:

1. the defendant’s conduct must be intentional, including recklessness;
2. the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns;
3. a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

To ensure that intrusion of seclusion was not applied to broadly, the court defined the type of privacy interests that would be affected:

• financial or health records
• sexual practices and orientation
• employment
• diary or private correspondence that could be reasonably considered highly offensive

The court also noted that protections of freedom of expression and freedom of the press could provide valid defences where communication of facts are in the public interest.

Damages

Proving harm to an economic interest would not be required for this cause of action, but the court noted that because of the intangible interest being protected here that any damages would be modest. The court provided a helpful table of damages related to privacy interests in Ontario.

Appendix A: Ontario damage awards

Appendix B: Damage awards under provincial privacy legislation

Given the recent news about the arrest of Sub-Lieutenant Jeffrey Paul Delisle, Slaw readers may want to visit the Security of Information Act (SOIA) under which he has been charged, according to reports. Government officials and the RCMP have refused to identify the section of the legislation involved, however.

I say "visit" the Act in part because it is a nearly indigestible tangle, a true failure, perhaps, of the draftsperson's art. This lack of clarity, which could be seen as a sympathetic reflection of the espionage world I suppose, has been the subject of judicial criticism. Readers may recall O'Neill v. Canada, the 2006 case of the Ottawa reporter who had documents pertaining to Maher Arar removed from her home pursuant to search warrants obtained on the basis of s.4 of SOIA, an older section in this much-updated "palimpsest" of a statute, in part dating back it seems to 1889. O'Neill challenged the validity of the warrants and, in so doing, the validity under the Charter of section 4(1)(a), 4(3) and 4(4)(b). Justice Ratushny of the Ontario Superior Court found these "inelegant" sections did in fact violate sections 7 and 2(b) of the Charter, being both overbroad and vague; neither was saved by s.1.

Though the heart of s.4 has been found unconstitutional, it remains in the legislation; I suspect however that Delisle will be charged under another section.

I'll reproduce s.4(1)(a) and (b) here, so you can see the sort of drafting I'm talking about:

4. (1) Every person is guilty of an offence under this Act who, having in his possession or control any secret official code word, password, sketch, plan, model, article, note, document or information that relates to or is used in a prohibited place or anything in a prohibited place, or that has been made or obtained in contravention of this Act, or that has been entrusted in confidence to him by any person holding office under Her Majesty, or that he has obtained or to which he has had access while subject to the Code of Service Discipline within the meaning of the National Defence Act or owing to his position as a person who holds or has held office under Her Majesty, or as a person who holds or has held a contract made on behalf of Her Majesty, or a contract the performance of which in whole or in part is carried out in a prohibited place, or as a person who is or has been employed under a person who holds or has held such an office or contract,

(a) communicates the code word, password, sketch, plan, model, article, note, document or information to any person, other than a person to whom he is authorized to communicate with, or a person to whom it is in the interest of the State his duty to communicate it;

(b) uses the information in his possession for the benefit of any foreign power or in any other manner prejudicial to the safety or interests of the State;

The more modern sections, introduced in 2001 after the attack on the World Trade Center, are better written, I'm glad to say. Though their number and the breadth of the definitions of some critical terms — "Prejudice to the safety or interest of the State" in s.3, for example — make for difficult analysis.

I don't know about you, but when I'm confronted with a new chunk of complicated legislation and need to get some understanding of it, I begin to chart it out, typically re-doing the order in which modern drafting practice dictates things be laid out. I wonder whether it wouldn't be possible and desirable to have each act accompanied by one or more flow charts as a guide from the framers and possessing the same lack of authority as the helpful side notes now used in legislation. I suppose that in this day and age I should be asking for a computer program that could do this charting automatically; but I'd settle for a graphic layout of what the draftspeople had in mind.

(This may not be such a wacky idea. More than a decade ago a graphic designer, David Berman, proposed to a Justice Canada pilot project that Canada move "Toward a New Format for Canadian Legislation: Using graphic design principles and methods to improve public access to the law" [PDF]. Our ability to manipulate information has come a long way since 2000; it may be time for a later version of this proposal.)

Here are some of the sites that are going dark today, or changing their home pages in protest over the proposed US legislation. For more information on why this legislation is so bad, check out these sites, or search for "SOPA" on Slaw or Techdirt.com, or just Google it.

Wikipedia:

Boing Boing

WordPress

EFF

This is Google's US site. Google's Canadian homepage does not seem to be affected.

Michael Geist

The traditional tests for the validity of a marriage in Canada (which adopted the rules established by the English courts in the nineteenth century) was that a marriage had to be valid (i) where it was performed, by the lex loci celebrationis, and (ii) by the law of the parties’ ante-nuptial domicile, usually referred to as the question of “essential validity”. Simon Fodden correctly stated the law in his earlier post.

With respect to the lex loci celebrationis, the ceremony had to comply with the rules of the place where it occurred—the minister had to be licensed, a licence obtained by the parties, etc. In the eighteenth century, the English courts recognized as a valid English marriage a marriage performed in Scotland, notwithstanding that the parties, usually being under 21, could not validly marry in England without parental consent. This fact is the reason that, had they been minded to, Lydia Bennet and George Wickham could have married in Scotland and become respectable. Many Georgian romance novels, e.g. those of Georgette Heyer, deal with “flights to the border” with the woman’s father in hot pursuit. Gretna Green became famous because it was the first place on the main road north of the border where a person, the local blacksmith, could be found to perform the marriage. Gretna Green lost its popularity once Scotland required residence in Scotland for three weeks before being able to marry there. No one would choose to spend that time in Gretna when the sights of Edinburgh beckoned!

In Brook v. Brook (1861), 9 H.L.C. 193, 1 E.R. 703, the House of Lords dealt with the question of essential validity and held that the marriage of a man to his deceased wife’s sister in Denmark was invalid because such a marriage was within the prohibited degrees of affinity under English law, the law of the parties’ ante-nuptial domiciles, though not under Danish law. (It was on this ground that Henry VIII was able to divorce Catherine of Aragon. The problems that the English courts and legislature had with marriages like that of Mr. Brook are truly extraordinary. They are wonderfully retold by E.S. Turner in Roads to Ruin, a book that I once had but now can no longer find.)

It is the law laid down by the House of Lords in Brook v. Brook that the lawyer for the Department of Justice was absolutely correctly, if imprudently, relying on for his argument that the marriage in Ontario of a same-sex couple domiciled in Florida or the United Kingdom, was invalid.

From one point of view, it made no sense for the English courts to recognize as a valid English marriage a marriage (in Scotland) that was designed to evade a requirement of English law. From another and far more important point of view, it was the right thing to do. The reason for this conclusion is that a marriage is a fait accompli in the lives of the parties and for centuries the common law set its face against rules which would invalidate a marriage. If a couple married in Scotland, notwithstanding that they could not marry in England and lived together for many years, it would be grotesque if (i) their children were illegitimate (then a very serious problem) and (ii) the woman had no right to succeed to the man’s estate.

What is wrong with the rule regarding essential validity, is that in the structure of conflict of laws, it functions as a choice of law rule. Conflicts is a monstrous construction. I won’t go into my arguments for saying this—they offend conflicts scholars, though none of them have ever told me why my views are wrong—but the domicile rule, correctly described by John Gregory, is part of this. What it could do and frequently did was to invalidate marriages where there was no good reason not to have regard for the fundamental policy of holding marriages to be valid. As a choice of law rule, it was wholly indifferent to its effects.

The conflicts rules for marriage were tested at the end of WW II. People living in dis-placed persons’ camps married without giving much thought to the legalities, and when these marriages were later tested, the English courts often simply refused to follow the law as laid down by the House of Lords because doing so would have the effect of invalidating a marriage. The cases are of course not consistent. I wrote a long article, "A New Approach to Marriage and Divorce in the Conflict of Laws" (1974), 24 University of Toronto Law Journal 17, which sets out the law and describes the cases.

A colleague of mine put this situation to me:

The position taken by Justice can have all sorts of very bizarre repercussions. What if a same-sex couple was married in Ontario at a time when both parties were domiciled in Texas, and then subsequently emigrated to Canada. On their arrival in Canada as landed immigrants, should Canada take the position that their marriage is invalid on the basis of the ordinary rules governing conflicts in family law?

Traditional doctrine, i.e., the law laid down by the House of Lords, would say, tant pis, you are not married! The problem with this response is that the couple may not realize that their marriage is invalid and when, many years later, the validity of the marriage matters, it may be too late for them to do much about it.

A better place to start would be to adopt a Canadian domestic principle that events that are faits accomplis in the lives of the parties be recognized as effective unless under Canadian law there is some good reason not to do so. (A good reason under Canadian law not to recognize a marriage might be the existence of a prior marriage or the non-age of one of the parties, i.e., he or she was too young to be able to enter marriage.) This approach can deal with the situation where the parties in my colleague’s example, on arriving in Ontario, are told their marriage is invalid and simply go their separate ways. That event becomes a fait accompli and should be recognized as such. This approach is emphatically not a choice of law rule; it is the straightforward application of domestic Canadian law, informed by, for example, Charter values, with, as appropriate, due consideration for foreign law. Conversely, the parties’ marriage, notwithstanding that they might have walked away from it but did not, should be valid in Ontario once they have relied on it.

The problem with divorce is similar. What a divorce does is re-confer on the parties the capacity to marry other people. Yes, it deals with support, children, etc., but those questions can be dealt with outside a divorce.

The principal problem with divorce is created by the fact that the court that hears the petition applies only its own law; in conflicts terms, there is no choice of law component. What was wrong (from the Canadian point of view) with a “quickie” Nevada or Mexican divorce years ago was that the Canadian values in sustaining a marriage—leave aside the question whether they made a great deal of sense—were ignored by the Nevada or Mexican courts. If Canada now, having abolished the residency requirement for a Canadian divorce, becomes like Nevada, we can divorce as many couples as we like but there is a strong likelihood that the places where the people return to (or the place where one party may have remained) may not recognize the divorce. In other words, they may not be able to re-marry in those places or reasonably expect to have their support obligations dealt with by Ontario law.

Before the Divorce Act was amended to make the recognition of a foreign divorce much more likely, there were huge problems created for a person who had relied on a foreign divorce—it was a fait accompli in the person’s life—and truly horrible decisions were made. The courts’ attempted, as they always do, to do the right thing and the law became very complex, very uncertain and, in true conflicts fashion, quite exotic. Again, my article deals with some of the cases and problems. What is most important to understand is that the conflicts approach was completely indifferent to the values at stake; they were as likely to be frustrated as forwarded.

Just as Canadian courts do not take jurisdiction just because a plaintiff has issued a statement of claim in Ontario, naming an out-of-province defendant—there has to be a real and substantial connection or submission—so they shouldn’t take jurisdiction to hear any petition for divorce just because they are asked to. At the very least, they should, as they never have, consider the law of the foreign jurisdiction. I do not argue for this as a choice of law rule, but simply that, under Canadian law, it might be fair to the responding spouse or respectful of the foreign law to have regard to his or her rights under the foreign law. It seems to be hubris to imagine that other countries will simply recognize what we do just because we have done it.

What is certain is that whatever we do there will be complex problems; the best we can do is to consider what our values seek to protect and consider the application of foreign law solely from that point of view.

I just returned from the 2012 Liberal Biennial conference in Ottawa, where a number of policy resolutions were passed. One which has received considerable attention is Priority Policy Resolution 117, which passed with 77% of the vote. The text of the resolution reads:

Justice
117. Legalize and Regulate Marijuana
WHEREAS, despite almost a century of prohibition, millions of Canadians today regularly consume marijuana and other cannabis products;
WHEREAS the failed prohibition of marijuana has exhausted countless billions of dollars spent on ineffective or incomplete enforcement and has resulted in unnecessarily dangerous and expensive congestion in our judicial system;
WHEREAS various marijuana decriminalization or legalization policy prescriptions have been recommended by the 1969-72 Commission of Enquiry into the Non-Medical Use of Drugs, the 2002 Canadian Senate Special Committee on Illegal Drugs, and the 2002 House of Commons Special Committee on the Non-Medical Use of Drugs;
WHEREAS the legal status quo for the criminal regulation of marijuana continues to endanger Canadians by generating significant resources for gang-related violent criminal activity and weapons smuggling – a reality which could be very easily confronted by the regulation and legitimization of Canada’s marijuana
industry;
BE IT RESOLVED that a new Liberal government will legalize marijuana and ensure the regulation and taxation of its production, distribution, and use, while enacting strict penalties for illegal trafficking, illegal importation and exportation, and impaired driving;
BE IT FURTHER RESOLVED that a new Liberal government will invest significant resources in prevention and education programs designed to promote awareness of the health risks and consequences of marijuana use and dependency, especially amongst youth;
BE IT FURTHER RESOLVED that a new Liberal government will extend amnesty to all Canadians previously convicted of simple and minimal marijuana possession, and ensure the elimination of all criminal records related thereto;
BE IT FURTHER RESOLVED that a new Liberal government will work with the provinces and local governments of Canada on a coordinated regulatory approach to marijuana which maintains significant federal responsibility for marijuana control while respecting provincial health jurisdiction and particular regional concerns and practices.
Young Liberals of Canada
Liberal Party of Canada (British Columbia)

The theme of the conference was evidence-based policy and featured a plenary talk by Munir A. Sheikh, the former Chief Statistician at Statistics Canada who championed the long-form census.

However, policy resolutions passed by delegates are not binding on the Party executive, especially since a constitutional amendment which would have removed the leader's veto powers was not removed,

(2) The National Policy and Platform Committee is responsible to:

(a) provide a forum for members of the Party to have their say and influence the policies and platform of the Party;
(b) coordinate the policy development process in all provinces and territories with a view to maintaining a current written statement of the policies of the Party (the “Party policies”) that will, together with contributions from the Leader and the Caucus and subject to the approval of the Leader, form the basis for the platform of the Party for use in the next general election (the “Party platform”);
(c) establish written procedures for the policy development process and publish those procedures on the public website of the Party;
(d) maintain an up to date compilation of the Party policies on the public website of the Party; (e) subject to the veto in whole or in part (including a veto line by line) by the Leader, draft the Party platform and, upon its release during an election, publish the Party platform on the public website of the Party

Veto powers are relevant because decriminalization of marijuana has passed at previous Liberal conventions but was subsequently excluded from the Party platform. The role of the leader in supporting this resolution should then be important, but interim leader Bob Rae has thus far expressed support in his closing speech, adding,

Let's face up to it, Canada, the war on drugs has been a complete bust.

Leadership though will now be determined not just by party membership, but also by a new class created by another constitutional amendment, called "supporters," a free mechanism for participation within the party for those over 18 that support the purposes of the party, is qualified to vote, and is not a member of any other federal party,

54 Call of Leadership Vote

…

(2) If the Leader publicly announces an intention to resign or if the Leader delivers to the National President a written resignation or a written request to call a Leadership Vote, then the Leader ceases to be the Leader on the earlier of the appointment of an Interim Leader and when a new Leader is elected by the supporters members of the Party.
…
(7) The person appointed as the Interim Leader may exercise all the powers of the Leader under this Constitution until a new Leader is elected by the supporters members of the Party.
…

56 Leadership Vote procedure
(1) The Leadership Vote is a direct vote of all supporters members of the Party who have a right to vote on the Leadership Vote weighted equally for each electoral district in Canada and counted in accordance with this Section.

Because these non-member supporters will help choose the leader in March-June 2013, they may have direct input into whether the legalization of marijuana becomes part of the official Party platform. Candidates will likely be expected to express their positions on this issue during the race.

Also of relevance is that the current official opposition does not have decriminalization or legalization of marijuana in their policy platform, and the leading party is unlikely to include it given their "tough on crime" rhetoric.

If the proposal has a broad enough interest among the public it could help reinvigorate the Liberal Party through these new supporters, but conversely could mobilize opponents to either work against it within the party, or seek to prevent its passing through support of the other major parties. Either way, nobody can say that the Liberal Party of Canada, which never before in its history has been in third place status, is irrelevant to the Canadian political scene.

It's been a great long time since I claimed any expertise in family law, but the fuss over today's Globe and Mail front page headline (see the story here) concerning the availability of divorce to foreign same-sex couples married here in Canada has tempted me to put a toe in the waters again, just to check with Slaw readers that my understanding is correct or off base.

And that understanding is the following:

The law of marriage is governed by two sets of rules, one dealing with formal validity and the other with essential validity, or capacity to marry. Just to make things wonderfully difficult, that split is mapped onto another, the Canadian constitutional division of powers, with Parliament getting capacity and the provincial assemblies getting form. Going abroad to marry adds a third duality to the analysis, because conflict of laws rules say that lex loci—the law of the place where the marriage is performed—governs the proper form of marriage, and the law of the parties' domicile governs their capacity to marry.

What then is the situation of a same-sex couple that comes from Florida, let's say, to Ontario (or any other Canadian province) in order to marry here?

First, they must meet provincial licence requirements, set out in the Marriage Act (and interpreted on the City of Toronto website, for example). This does not present a problem for the couple, and they go through the ceremony. Are they then "married"? The answer depends, at least initially, on an analysis of the various dualities outlined above. It would seem that their sex, and whether it is required to be "opposite", is a matter of personal capacity, i.e. essential validity, and hence governed by their domicile. In the simple example I'm using I've not complicated the domicile issue, and it's clear, ex hypothesi, that Florida is their domicile. Florida law does not currently permit same sex marriages. The consequence of this is that the couple is arguably not married: no amount of formal ratification can overcome an essential stumbling block.

The "logic" of this is that the couple can't be "married" here and "not married" there. And the consequence is that, not being married, they aren't able to get divorced—here, there, or anywhere. The federal Parliament has nothing to do with it; and the provincial laws and bodies are constitutionally unable to make capacity an issue, so they don't do an investigation of capacity at the time of marriage. It's caveat marrier so far as we're concerned.

Yes but.

What legal "buts" may there be? Perhaps a Canadian court would be willing to say that Florida law is so uncivilized that we choose not to recognize it insofar as it forbids same-sex marriages. Our courts have done similar things when shoes were on other feet, so to speak, and we were appalled by polygamous marriages from non-Western countries, declining to recognize their jurisdiction over capacity. That would be interesting indeed.

A drier approach might be to call on a fourth duality, that between marriages void ab initio and those voidable only. The argument here would be that this lack of capacity renders a marriage voidable only, with the upshot that it can only be challenged by one of the parties and is valid until successfully challenged by an annulment proceeding. The inability to consummate a marriage, i.e. lack of sexual capacity, only makes a marriage voidable, as does the lack of age and, probably, lack of mental capacity at the time of the ceremony. But I'm doubtful that this approach would have much success for a bunch of reasons I'm going to spare you.

None of this produces a good or happy result, perhaps. And it may be that a court will find a way to salvage something out of these "exilic" marriages, even if, ironically, it's only a divorce (which gives rise to corollary relief, after all).

On December 6, 2011, the Internet Child Pornography Reporting Regulations were registered in the Canada Gazette and came into force. The goal of the regulations is to establish a framework necessary to implement the mechanics for the designated organizations receiving reports and service providers who report to discharge their duties under An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service.

On December 8, 2011, the federal Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service (formerly Bill C-22) came into force. The new legislation aims to protect children from online sexual exploitation, by requiring suppliers of Internet services to the public to:

• Report tips they receive regarding websites where child pornography may be publicly available to the Canadian Centre for Child Protection
• Notify police and safeguard evidence if they believe that a child pornography offence has been committed using an Internet service that they provide

More details on obligations under the Act can be found in my previous blog post.

So what does the Regulations say?

Purpose of regulations

Designated organization and service providers both have obligations under the Act. The Regulations state how these obligations should be completed (i.e., how to make a report to a designated organization in accordance with the Act, how to notify police in accordance with section 3 of the Act and how to safeguard evidence in accordance with section 4 of the Act.

Obligations of designated organization

The Regulation officially names the Canadian Centre for Child Protection (C3P) as the designated organization for receiving reports under the Act. The C3P is currently Canada's national tip line for online reporting of child sexual exploitation on the Internet.

The regulation:

Describes what is required for having a secure online system. The designated organization must, for the purpose of receiving reports of Internet addresses under the Act, maintain a secure online system that a) assigns each service provider a unique identifier for the purpose of making reports; b) allows a service provider to report only Internet addresses; and c) issues to a service provider, for each report they make, a receipt that indicates the incident number assigned to the report, the service provider's name and unique identifier and the date and time of the report.

Elaborates on the role, functions and activities of the designated organization. The designated organization must take reasonable measures to:

a) Ensure its continued ability to discharge its role, functions and activities under the Act, including measures relating to the protection of its physical facilities and technical infrastructure, risk prevention and mitigation, emergency management and service resumption;

b) Protect from unauthorized access any information obtained or generated by the designated organization in the course of discharging its role, functions or activities under the Act; and

c) Ensure that all of its personnel have the necessary security clearance and training to discharge the designated organization's role, functions and activities under the Act.

Requires analysis and communication of findings. As soon as feasible after receiving a report required under the Act, the designated organization must determine whether any material found at the reported Internet address appears to constitute child pornography and, if so:

a) Determine, if possible, the geographic location of the server that the reported Internet address points to and the geographic location of the server hosting the material that appears to constitute child pornography; and

b) Make available to every appropriate Canadian law enforcement agency by secure means:

(i) The reported Internet address,

(ii) A description of any geographic location that the designated organization was able to determine under paragraph a), and

(iii) Any other information in the designated organization's possession that might assist the agency's investigation.

Describes what is required for retention of records. For each report received, the designated organization must retain the reported Internet address and a copy of the receipt issued for two years after the day on which the report is received.

Clarifies what to do if there is a breach, incident or conflict of interest, and how to notify the minister. The designated organization must notify the Minister of Justice and the Minister of Public Safety and Emergency Preparedness within 24 hours of becoming aware of any incident or breach that jeopardizes the designated organization's ability to discharge its role, functions or activities under the Act. In addition, the designated organization must take any measures necessary to avoid a conflict of interest in respect of its role, functions and activities under the Act, and must address any such conflict that does arise.

Describes the requirement for annual reporting. The designated organization must, not later than June 30 of each year, submit to the Minister of Justice and the Minister of Public Safety and Emergency Preparedness a report on the discharge of its role, functions and activities under the Act for the 12-month period beginning on April 1 of the preceding year. The report must include:

a) The number of reports received under the Act and, of those, the number that led the designated organization to make information available to a law enforcement agency;

b) A description of the measures that the designated organization had in place

c) A description of any incident referred in the Act that occurred and the steps taken in response to the incident;

d) A description of the measures that the designated organization had in place in accordance with the Act, any conflict of interest that arose and the steps taken to address it; and

e) Any other information that may affect the designated organization's current or future ability to discharge its role, functions or activities under the Act.

Obligations of service providers

The regulation elaborates on the manner in which persons who provide Internet services to the public can discharge their obligations under the Act, including as it relates to making a report, making a notification and preserving computer data under the Act.

Method of reporting. For the purpose of the Act, an Internet address must be reported by a service provider using the online system set up by the designated organization the C3P. The notification from a service provider must be in writing and must include the following information:

a) The child pornography offence that the service provider has reasonable grounds to believe is being or has been committed using their Internet service;

b) A description of the material that appears to constitute child pornography, including its format;

c) The circumstances under which the service provider discovered the alleged offence, including the date and time of discovery;

d) A description of any other evidence relating to the alleged offence in the possession or control of the service provider; and

e) Contact information of the service provider's representative for the purpose of investigating the matter.

Security measures to protect data. A service provider that is required to preserve computer data must retain a copy of that data in a secure offline location.

Enforcement

Any prosecutions under this Act are conducted by the Public Prosecution Service of Canada.

This post is co-authored with Christina Catenacci LL.B

The U.S. Court of Appeals for the 10th Circuit ruled today in Awad v. Ziriax et al, blocking a proposed constitutional amendment that would forbid domestic courts from considering or using international law. The more controversial aspect of the amendment is that it would also ban courts from using or considering Shari'ah law.

The Appeals court upheld the decision of The Western District Court of Oklahoma on November 29, 2010 to grant a preliminary injunction blocking the amendment, and stated,

Appellants argue there is no discrimination because the amendment bans all religious laws from Oklahoma courts and Sharia law is named only as an example. But that argument conflicts with the amendment’s plain language, which mentions Sharia law in two places…

The amendment bans only one form of religious law—Sharia law. Even if we accept Appellants’ argument that we should interpret “cultures” to include “religions,” the text does not ban all religious laws. The word “other” in the amendment modifies both “nations” and “cultures.” Therefore, if we substituted the word “religions” for “cultures,” the amendment would prohibit Oklahoma courts from “look[ing] to the legal precepts of other . . . religions.” The word “other” implies that whatever religions the legislature considered to be part of domestic or Oklahoma culture would not have their legal precepts prohibited from consideration, while all others would. Thus, the second portion of the amendment that mentions Sharia law also discriminates among religions.

The court also commented on the lack of compelling state interest by the appellants,

Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma…

The proposed amendment goes further than preventing courts from “applying” Sharia law. The amendment forbids state courts from “considering” those laws. See Aplt. App. Vol. 1 at 168. Even if the state could identify and support a reason to single out and restrict Sharia law in its courts, the amendment’s complete ban of Sharia law is hardly an exercise of narrow tailoring. Appellants have not carried their burden to show why the proposed amendment is “closely fitted” to a compelling interest.

Finally, the court commented on the role of the judiciary in the democratic process,

Federal courts should be wary of interfering with the voting process, but we agree with the district court and the Sixth Circuit that “‘it is always in the public interest to prevent the violation of a party’s constitutional rights.’” Awad, 754 F. Supp. 2d at 1308 (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)). “While the public has an interest in the will of the voters being carried out . . . the public has a more profound and long-term interest in upholding an individual’s constitutional rights.” Id.; see also Cate v. Oldham, 707 F.2d 1176, 1190 (10th Cir. 1983) (noting “[t]he strong public interest in protecting First Amendment values”).

About three weeks, my colleague and fellow blogger Genevieve Lay wrote a post about the brewing storm in Montreal regarding the Canadiens' appointment of the unilingual Anglophone Randy Cunneyworth as head coach. Perhaps because it was posted shortly before Christmas, Genevieve's post did not garner any comments. However, the debate has intensified, both in the "blogosphere" and in Montreal.

In short, many Québecois feel that the Canadiens should appoint only a bilingual or Francophone coach. Local Québec papers got in the act, calling for the Canadiens' General Manager's head for his insentive decision. In response to the furor, the Canadiens responded on December 19 with a statement basically apologizing (as reported by the Montreal Gazette):

“Although our main priority remains to win hockey games and to keep improving as a team,” Molson’s statement read, “it is obvious that the ability for the head coach to express himself in both French and English will be a very important factor in the selection of the permanent head coach. … We would like to thank all our fans for their understanding.”

On January 3, the GM took it a step further (also as reported by the Montreal Gazette):

"I'm sorry if we upset people," Gauthier said Monday, during one of his media chats which are as rare as a visit from Halley's Comet, "because that certainly wasn't our intention."

"What will happen in the future, at the end of the season, is that we will reevaluate the whole file. As (owner Geoff) Molson said in his communique a week ago, it's very important that our head coach be bilingual. So that will be part of our decision at that point."

It would seem, rightly or wrongly, that the Canadians will favour a bilingual coach. Politics aside, there are legal issues involved in this debate. If Randy Cunneyworth is let go solely because he speaks French, is that discrimination based on language? If so, is it justifiable under the Québec Charter of Rights?

Prof. David Doorey and I engaged in an interesting debate via our respective blogs and there is no need to summarize them on Slaw. See here for Prof. Doorey"s original post and here for mine responding to his. His final (and eloquent) retort is here.

Time for you all to weigh in: Is it discriminatory? If so, is it justified?

The EU privacy directive (1995 version – I gather that it is being revised, though I don't know on what timetable) provides that member countries may not release personal information outside the EU unless the recipients are bound by equivalent safeguards for privacy.

While the US has a 'safe harbor' agreement with the EU about criteria for judging when the protections are equivalent, Canada does not. On the other hand, we have a generally applicable privacy law (PIPEDA) and some provincial equivalents, plus personal health information laws in most provinces. Are they enough to permit the personal information to come here, or are there problems?

I think for example of a provision like Article 8 of the Directive, about processing of 'special categories of data', like heath care data. This is not to be released without consent of the individual concerned. However, there is an exception for data released for diagnostic or health care reasons, if the person to whom the PI is released is subject to safeguards under the applicable law. (Arrticle 8(3))

Are the provincial health information protection acts (I think of the Personal Health Information Protection Act in Ontario, but most provinces have them, as noted) considered adequate protection for such disclosure from the EU? If there is no official EU-level pronouncement on the topic, have you or your clients run into any problems in getting information transferred from EU countries that would rely on this legislation for authority? Do the transferors (or their lawyers) distinguish between PIPEDA and the specific obligations of the provincial laws in discussing such transfers?

In short, how is this working in practice, given the variety of EU laws implementing the Directive and the variety of laws that apply to the potential recipients?

Are any of the likely revisions to the Directive going to affect operations on this practical level, or are they just aimed at updating for new technology or practices, like data storage in the cloud?

The conclusion of most of the occupy camps across North America this fall was largely peaceful, with some notable exceptions involving pepper spray and excess force. But the protesters for the most part were non-violent, and in my exposure in Toronto, largely respectful of the legal system.

Although skepticism abounded when police announcements were shared or news stories circulated, judicial decisions appeared to have much more impartiality and credibility to the protesters. If the courts can be used as an alternative to police excess and fiascoes like the G20, I interpret it as a small success for our judicial system.

A recent American decision could see protesters, some of them backed with union support, bringing their own actions to address wrongs that they see as the heart of the occupy movement. On December 20, 2011, the New York Court of Appeals unanimously ruled in Assured Guaranty (UK) Ltd. v. J.P. Morgan Investment Management Inc. that the New York General Business Law article 23-A, sections 352-353, also known as the "Martin Act," does not preempt common law securities claims for breach of fiduciary duty and gross negligence.

Background

The Martin Act was passed in 1921, and gives the Attorney General extremely broad enforcement authority to regulate, investigate, and bring civil and criminal actions for securities fraud, including the power to seek equitable and monetary relief. The only elements necessary to demonstrate a violation under the Martin Act is a misrepresentation or omission of material fact when inducing or promoting securities trading, without a need to show intent, reliance or damages.

In Assured, the defendant claimed that the Martin Act precluded private investors from initiating their own common law claims, a strategy that has been used extensively to preempt non-fraud common law claims otherwise covered by the statute. More recent court judgments have rejected this approach.

The plaintiff claimed that the defendant had mismanaged a $500 million investment portfolio of an entity by investing in high-risk securities such as subprime mortgage-backed securities, without diversifying the portfolio or advising the the entity of the true level of risk. The plaintiff also claimed that the defendant improperly invested in a nonparty client rather than benefit the portfolio or the plaintiff, causing a 86 per cent financial loss to the portfolio from $360 million on June 30, 2006 to $50 million on Feb. 28, 2009, and triggering a the plaintiff's guaranteed obligation to pay.

The Supreme Court granted the defendant's motion and dismissed the claim in its entirety under CPLR 3211, holding that breach of fiduciary duty and gross negligence fell,

within the purview of the Martin Act and their prosecution by plaintiff would be inconsistent with the Attorney General's exclusive enforcement powers under the Act.

The Appellate Division reinstated two tort claim for breach of fiduciary duty and gross negligence and a contract claim, stating,

there is nothing in the plain language of the Martin Act, its legislative history or appellate level decisions in this state that supports defendant's argument that the Act preempts otherwise validly pleaded common-law causes of action"

The Appellate Division granted the defence's leave to appeal on a certified question,

…plaintiff's common-law breach of fiduciary duty and gross negligence claims must be dismissed because they are preempted by the Martin Act. Contending that the Martin Act vests the Attorney General with exclusive authority over fraudulent securities and investment practices addressed by the statute, J.P. Morgan asserts that it would be inconsistent to allow private investors to bring overlapping common-law claims. J.P.

Analysis

Graffeo J. rejected the defendants submissions that CPC Intl. v. McKesson Corp. and Kerusa Co. LLC v. W10Z/515 Real Estate Ltd. Partnership abrogated all nonfraud common-law claims. She indicated that legislative intent was integral here, and noted that the Act had been amended a number of times to broaden its powers. She cited Hechter v. New York Life Ins. Co. and ABN AMRO Bank, N.V. v. MBIA Inc. to emphasize that an unambiguous legislative intent to override the common law would be necessary for abrogation, and pointed to Burns Jackson v. Lindner,

…when the common law gives a remedy, and another remedy is provided by statute, the latter is cumulative, unless made exclusive by the statute…

Although the Martin Act did not create a private right of action to enforce its provisions, the defendant was unable to demonstrate anything in the legislative history of any of the amendments demonstrating a mandate that would abolish private common-law claims.

The cases relied on by the defendant were distinguished from Assured. In the first, the plaintiff brought a private action under the Martin Act, as opposed to a private action independent of the Act. In the second case, the plaintiff's entire claim was based on a Martin Act disclosure violation that did not have an independent cause of action, and private parties do not have a right to enforce the Martin Act. Graffeo J. concluded that a mere overlap between the common law and the Martin Act and its regulations is not enough to extinguish the remedies in common law, as long as it is not entirely dependent on the Martin Act for viability.

The court also considered policy implications regarding expansive preemption in securities and real estate, but concluded,

…we believe that policy concerns militate in favor of allowing plaintiff's common-law claims to proceed. We agree with the Attorney General that the purpose of the Martin Act is not impaired by private common-law actions that have a legal basis independent of the statute because proceedings by the Attorney General and private actions further the same goal — combating fraud and deception in securities transactions. Moreover, as Judge Marrero observed recently, to hold that the Martin Act precludes properly pleaded common-law actions would leave the marketplace "less protected than it was before the Martin Act's passage, which can hardly have been the goal of its drafters" (Anwar v. Fairfield Greenwich Ltd., 728 F Supp 2d 354, 371 [SD NY 2010]).

Implications

The defendant has noted that the decision relates to the adequacy of the pleadings and not the merits of the claim, and intend to continue to vigorously dispute the claim as they consider their management of the client's accounts appropriate. The case did not disturb the general rule that securities fraud claims by classes of 50 or more are precluded by the Securities Litigation Uniform Standards Act (SLUSA).

Robert A. Wallner of Milberg LLP, who filed an amicus brief for labor organizations, called the decision "a landmark change in the law," and said that "the ramifications of this decision are quite extraordinary."

There has been quite a bit of commentary about the union ties to the occupy movement, and in some ways they have been the biggest victims of the economic crisis. The largest security investors in the United States are union members, largely through pension plans. This decision is expected to open the doors to more actions by unions out of events during the economic recession. It may also demonstrate some of the future relevance of unions, in an era of transition to a service economy and declining unionization rates.

For disgruntled investors, or workers who have invested through a pension or labour group, these types of actions may finally provide the type of relief that many were expecting, instead of the bonuses that were often observed. Occupiers are expected to head out to the parks again once the weather warms up, and maybe this time some of them will turn to the courts instead.

Because of the possible protections afforded "freedom of religion" under the constitutions of many countries, we've seen various groups or individuals seek to exempt their activities from the normal operation of the law by claiming to be or belong to "churches" or "religious organizations." The use of certain otherwise proscribed drugs, for example, has been claimed to be an important part of "religious practice" (see, e.g. Holy Light of the Queen and the drug ayahuasca; and the amazingly prolific Church of the Universe, involving marijuana). More commonly, perhaps, people attempt to form churches or to become recognized as ministers of churches in order to avoid taxes, whether on property or income. Negotiating the rendering interface, so to speak, between caesar and god, is not easy.

Now we learn that in Sweden, official recognition has been given to the Church of Kopimism. After knocking on Kammarkollegiet's door twice before, Isak Gerson's Missionerande Kopimistamfundet got third-time-lucky as the gates to status opened.

What do they believe in? Information. Yep. Information. This, from their official site—which may or may not be available when you try, having been Slashdotted:

For the Church of Kopimism, information is holy and copying is a sacrament. Information holds a value, in itself and in what it contains, and the value multiplies through copying. Therefore, copying is central for the organisation and its members.

Being recognized by the state of Sweden is a large step for all of kopimi. Hopefully, this is one step towards the day when we can live out our faith without fear of persecution . . .

I suspect this is more a direct attack on copyright than it is a critique of (official) religions. But it points up once again the incompatibility, in my view, of an empirical system open to argument and evidence (whether or not it comes anywhere near that "ideal") and a belief-based system holding inarguable premises—or, to put it another way, perhaps, parliamentary supremacy versus supreme being supremacy. j

Those of us in Canada who delve and spin in the world of information may find it harder to persuade the revenue folks of our deserving sanctity. But according to Gerson, we are probably already members of his church:

The community of kopimi requires no formal membership. You just have to feel a calling to worship what is the holiest of the holiest, information and copy. To do this, we organize kopyactings – religious services – where the kopimists share information with eachother through copying and remix.

Skål.

Members of Parliament Stephen Woodworth (Kitchener-Centre, CPC) and Jeff Watson (Essex, CPC) are calling for a national discussion on the definition of "human being" and a full examination of Canada's laws in this regard. The appeal is supported by the Evangelical Fellowship of Canada (EFC).

Faye Sonier, the legal counsel for the EFC emphasized that the question is not so much "What is human?" but "When is human?" Sonier explains:

Medicine recognizes a point of viability for a child in the womb. Science is prepared to experiment using pre-natal human tissue from conception onward. Yet, Canada's Criminal Code states that a child in the womb is not human.

The Criminal Code provisions on this point are dumbfounding.

Parliament needs to examine these provisions; consider their historical roots; and debate whether they make sense in twenty-first century Canada."

Section 223(1) of the Criminal Code defines a human being as a child who has completely proceeded in a living state from the mother's body, whether or not the child has breathed.

Section 223(2) sets out that a homicide occurs when a person injures a child before or during its birth and the child dies after exiting the birth canal.

In its application, the Supreme Court of Canada has emphasized that an unborn child has no "legal" rights. Thus, according to the Criminal Code, the baby becomes human only when it has fully emerged from its mother's body. The EFC's Activate CFPL blog offers illustrations of the problems that arise from these definitions.

In R. v. Sullivan (1991), the Supreme Court of Canada ruled that two midwives could not be found criminally responsible in the death of an unborn child because a fetus has no rights. The Court determined that a child in the process of being born was not a "person" according to the definition in the Criminal Code.

In R. v. Drummond (1996), Brenda Drummond was charged with attempted murder after she shot herself in the womb while she was nearly full term in her pregnancy. The child was born two days later, received treatment and survived. Drummond was acquitted of attempting to murder the baby because, according to law, a baby is not a legal "person" until it is born. The Court could only have found the mother guilty of murder if the child had died after he was born. She was later sentenced to 30 months probation for "failing to provide the necessities of life" for having failed to report the injury immediately after the birth.

Yes, the wording of the law and its application are confusing, but do we need a national discussion on the definition of "human being"? In this case, with the likely aim of restricting abortions? Because this will certainly be one result!

In 1988, the Supreme Court of Canada ruled that Canada's abortion law was unconstitutional and since then abortion has been available without any major restrictions. In 1991, the Senate defeated a Bill that would have criminalized abortion unless a doctor concluded that a pregnancy would threaten a woman's physical or psychological health.

How do we reconcile the growing understanding of the complexities of life before birth with women's hard-won access to abortion and right to choose, while also protecting mothers throughout their pregnancies. And what about the increasing calls to intervene on behalf of fetuses, that is, to give them legal rights and even for those interests to outweigh those of the mother?

In an editorial on the Huffington Post, Woodworth asks, "Does it make medical sense in the 21st century to say that a child is not a human being until the moment of complete birth?"

It is obvious that the entire question of life before birth and how it should be treated requires national public discussion, and no doubt such a discussion will lead to compromise and better law; however, I do not think we will find an answer that is satisfactory to all in any century!

Pending legislation always makes good fodder for lawyers to comment on in annual predictions articles. The pending anti-spam legislation has resulted in several such comments.

In my predictions article scheduled for publication next week, I comment that:

The Federal anti-spam legislation that was expected to be in force in 2011 is still waiting for regulations to be passed before coming into force. The draft regulations received a lot of criticism, and may be revised prior to the Act coming into force. The Act will be a compliance headache for many organizations, unless the regulations effectively narrow the broad definition of Spam. The Act is intended to provide tools to stop what we all understand to be spam. But the Act defines spam to include e-mails that many businesses or charities routinely send that the recipients probably would not consider to be spam.

Michael Geist predicts that in July:

Nearly one year after proposing anti-spam regulations, the government unveils modified regulations and seeks further public comment before the law takes effect. The new regulations establish a series of new exceptions to the law consistent with the demands of several marketing groups.

Barry Sookman has written a detailed analysis entitled Will it be illegal to recommend a dentist under Canada's new anti-spam law (CASL)?  in which he suggests that the legislation may indeed be that overreaching. It is worth a read to get a flavour for how complex this can get, and what the unintended consequences may be.

This legislation and its pending regulations merit a close watch this year. While its intentions are good, I believe it has the potential to waste far more time, money and effort for businesses and charities attempting to comply, than it will save by the amount of real spam it might reduce. And I'm not sure whether appropriate regulations can temper it sufficiently.

Another wrinkle is that the Supreme Court of Canada's December decision that said the proposed Canadian Securities Act was not within the legislative authority of Parliament has some wondering if the same fate might be in store for parts of the anti-spam legislation.

"Her Majesty's Counsel, learned in the law, for the Province of Alberta"

The designation of Queen's Counsel was bestowed recently on some members of the Alberta Bar. Though the tradition of recognizing outstanding expertise, work and contributions in a lawyer’s public life has ceased in some Canadian jurisdictions, being appointed a QC is worthy of congratulations.

The legislative authority for Queen's Counsel appointments exists in Alberta, British Columbia, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, and Saskatchewan

Quebec stopped making Queen's Counsel appointments in 1976, and Ontario stopped the practice in 1985. The federal government discontinued federal Queen's Counsel appointments in 1993.

Last May I attended a talk by Ron Deibert, Director of Citizen Lab, part of the Munk School of Global Affairs, University of Toronto, at the annual Mesh Conference in Toronto. He talked about cyber crime having become one of the world's largest growth sectors, with savvy young coders from poorer nations leading the way. Cyber crime, he explained, takes advantage of:

• mobile networking and reliance on the web for our computing
• lack of controls (i.e. regulation and legislation) internationally
• proper security practices and policies not yet in place

Deibert has written a report for GISWatch (Global Information Society Watch) entitled Toward a Cyber Security Strategy for Global Civil Society? (December 2011) in which he explains the forces affecting cyberspace:

• "The internet’s de facto and distributed regime of governance – largely informal and driven up to now by decisions of like-minded engineers – has come under massive stress as a function of the internet’s continuing rapid growth."
• "…there has been a vast growth in the developing world, as millions of new digital natives come online. With these new digital natives come new values and interests that in turn are affecting internet governance, as governments like China, Russia and India exercise their influence."
• Television, telephony and radio have been integrated into what we know as cyberspace to make one big communications system. "This paradigm shift has upset the principles, norms and rules of what used to be just the “internet”, with implications for freedom of speech and access to information."
• Transnational corporations are acting as gatekeepers. "Market considerations can easily outweigh privacy and other rights concerns, and have already made largely irrelevant so-called 'end-to-end' principles that once ensured network neutrality."
• "…the private sector is being pressured, compelled, and even incentivised to 'police the internet' by governments looking to download their growing cyberspace controls." He points to the proposed "Omnibus Crime Bill" (Bill C-10, Safe Streets and Communities Act) in Canada as an example of a government requiring ISPs and telecommunications companies to "retain user data, process the data in ways that make it amenable to law enforcement and intelligence, and then share that data with law enforcement representatives – all without judicial oversight."

He states that "the securitisation of cyberspace – a transformation of the domain into a matter of national security – is perhaps the most important factor shaping the global communications ecosystem today." Cyberspace is now affecting national security, and has brought with it a whole new set of products, services and policy around cyber securitisation.

He says it is also affecting Internet censorship, and this will become an increasing threat to civic networks that are interested in open data. The threats are real, he insists, so if civic networks want to see their interests maintained on the Internet, they must get involved in helping to find "grassroots" solutions to the Internet's security problems before governments dominate with their interests only:

Civic networks need to be at the forefront of security solutions that preserve cyberspace as an open commons of information, protect privacy by design, and shore up access to information and freedom of speech, while at the same time address the growing vulnerabilities that have produced a massive explosion in cyber crime and security breaches.

He states that civic networks–like large corporations–are transnational in scope, and are therefore well placed to bring public pressure to bear on the private sector. He also explains:

Part of the civic strategy must also include a serious engagement with law enforcement – another traditional anathema for civil society. Law enforcement agencies are often stigmatised as the Orwellian bogeymen of internet freedom (and in places like Belarus, Uzbekistan and Burma, they are), but the reality in the liberal democratic world is more complex. Many law enforcement agencies are overwhelmed with cyber crime, are understaffed, lack proper equipment and training, and have no incentives or structures to cooperate across borders. Instead of dealing with these shortcomings head on, politicians are opting for new “Patriot Act” powers that dilute civil liberties, place burdens on the private sector, and conjure up fears of a surveillance society. What law enforcement needs is not new powers, it needs new resources, capabilities, proper training and equipment. But alongside those new resources should be the highest standards of judicial oversight and public accountability. Civic networks can articulate the differences between powers and resources, and highlight the importance of public accountability to liberal democracy as an example to the rest of the world without alienating what could be an important natural ally.

I encourage you to read the full paper as this only gives a taste of Deibert's full intention.

While this paper is a call to action to "civil networks" to step up to the plate, I wonder who these networks are specifically. Who will take up the call, who will lead the way? Other than the OpenNet initiative and the Electronic Frontier Foundation mentioned in the article, I don't get a sense of exactly who is meant to carry this through. No doubt all of us as citizens, but I expect it will take a lot of coordination.

Photo credit: Binary Code 2 by Flaivoloka, from stock.xchng.

As I am in the holiday spirit, I thought it would be good to post a quick reminder about how statutory holidays work in La Belle Province. I'd also be curious to know how this might differ from other provinces or countries altogether.

According to the Québec Labour Standards Act, employers can require that employees work on statutory holidays. However, if they are required to work, employees must be paid an indemnity equal to 1/20 of the four weeks’ wages preceding the holiday, in addition to your regular salary. If the employee makes commission, the indemnity would be equal to 1/60 of the twelve weeks’ wages preceding the holiday.

Part-time employees are managed the same way as given that the indemnity is calculated as a percentage of wages, the amount of hours you work every week does not make a difference.

Employers can also choose to compensate employees with a day off. That day must however be taken within three weeks before or after the holiday.

In Québec, all of this is at the employer’s choice. However, fear not. Most employees do get their "stat" days off!

For more information, the Québec Labour Standards Commission's website provides a wealth of information (in English).

Enjoy the holiday!

When the Ontario Superior Court of Justice released the decision in Kusnierz v. The Economical Mutual, the Law Times described it as raising the "ire of plaintiffs’ bar." Justice Lauwers' holding directly contradicted the practice in place since Desbiens v. Mordini of allowing motor vehicle accident victims to combine physical and psychological ratings to get a Whole Person Impairment (WPI) rating of 55% or higher to achieve a catastrophic designation under s. 2(1.1)(f) of the Statutory Accidents Benefits Schedule (SABS).

Although some defence counsel were confident that the decision would be upheld on appeal, the Ontario Court of Appeal reversed the decision on Friday, which have some predicting shockwaves through the industry.

Both the trial judge and the Court of Appeal agreed that the heart of the issue was an exercise in statutory interpretation. Justice Lauwers employed a purposive analysis, relying on the Court of Appeal's holding in Bapoo v. Co-operators general insurance, which instructs courts to use a modern approach that looks at a legislative provision in its total context. He acknowledged that a legislative gap could result in unfairness in eligibility for catastrophic impairment benefits, but indicated a highly deferential approach that this was best addressed through the legislature.

However Justice MacPherson of the Court of Appeal took a different position,

[26] The trial judge noted that the SABS legislator could have, but did not, expressly provide for the combination of physical and psychiatric injuries. With respect, the opposite is also true. The legislator could have, but did not, expressly forbid the combination of physical and psychiatric injuries. Without qualification either way, the plain language of cl. 2(1.1)(f) seems to suggest that combination of both kinds of impairment is possible.

MacPherson J.A. rejected Justice Lauwers' use of the implied exclusion approach to statutory interpretation, or “expressio unius est exclusio alterius." Randal Graham in his book, Statutory Interpretation: Theory and Practice, explains some of the problems with this maxim,

…the phrase “expressio unius est exclusio alterius" finds its way into countless court decisions. Unfortunately, many judicial references to this particular legal gem come in the form of cryptic warnings counselling against the use of the maxim.

…where a statute fails to mention a specific case or item, we may have grounds to presume that hte case or item was excluded on purpose rather than through the drafter's inadvertence.

…A well-founded application of the expressio unis maxim calls for some additional indication that the excluded ase or item was omitted by the drafter on purpose.

Graham continues to explain in Theory and Practice why the expressio maxim is often flawed. It presumes that legislative drafters never use extraneous language, and presumes "consistent expression," namely that the same word in different parts of the statute necessarily expresses the same idea.

In his compendium text, Statutory Interpretation: Cases, Text and Materials, Graham explains some of the background behind the admissibility of parliamentary materials,

If "legislative intent" is truly the key to statutory interpretation, it seems sensible that any materials generated during the debating, and enacting process should be admissible for the purpose of establishing the meaning of a statute… Surprisingly, the "parliamentary history" of an enactment… has traditionally been considered inadmissible for the purpose of proving the lawmaker's intention… Regardless of the many policies weighing against the use of parliamentary history in statutory interpretation, the traditional rule (requiring the exclusion of such evidence) has now been abandoned in Canada.
[See Rizzo & Rizzo Shoes Ltd. (Re)]

And yet the Court of Appeal expressly refused to review fresh evidence of the appellants on the legislative purpose of the catastrophic definition. Justice MacPherson applied the test in Palmer v. The Queen,

(1) The evidence should generally not be admit­ted if, by due diligence, it could have been adduced at trial…

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evi­dence adduced at trial, be expected to have affected the result.

Although transcripts of the hearings of the Standing Committee Report and the Legislative Assembly debates on Bill 59 were deemed credible by Justice MacPherson, they were not considered relevant, would not have affected the results, and could have been properly submitted at trial. Instead, he reviewed the use of impairment throughout the SABS and the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”) and rejected the use of expressio in this context by noting a number of exceptions where "consistent expression" could not be demonstrated,

[30] In my view, the Guides’ examples are illustrative, rather than exhaustive. In at least five places, the Guides recommend that physicians refer to Chapter 14 in assessing the total impairment of persons suffering from both physical and behavioural/mental impairments. These recommendations reflect the principle that a total impairment assessment must take both physical and psychiatric impairments into account. There is nothing in the text of the Guides to suggest that this principle should be limited to persons with mammary gland or disfigurement problems. Accordingly, it seems to me that combining physical and psychiatric impairments can be done “in accordance with” the Guides.

Given the significance of this decision we can expect to hear quite a bit more on it, and possibly see legislative changes clarifying some of the ambiguity in the SABS in the future. Here are some of the summaries and commentaries of the appellate decision to date:

• Oatley, Vigmond (interveners in the case, on behalf of the Ontario Trial Lawyers Association (OTLA))
• Smitiuch Injury Law
• Thomson Rogers
• Daniel Strigberger of Miller Thomson at the Ontario Insurance Litigation Blog
• Alexander Rozine of D'Angela, Fox, Vanounou LLP at Canadian Health Law (a new site I just launched)

The judgment of the Supreme Court of Canada in the Reference re Securities Act 2011 SCC 66 has just been released. The opinion of the Court—a single judgment—finds, in sum, that:

This is not a case of a valid federal scheme that incidentally intrudes on provincial powers. It is not the incidental effects of the scheme that are constitutionally suspect; it is rather the main thrust of the legislation that goes beyond the federal power. . . .

The Securities Act as presently drafted is not valid under the general branch of the federal power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867.

In paragraph 132 (underlined in the online version at scc.lexum.org) the Court offers advice:

It is not for the Court to suggest to the governments of Canada and the provinces the way forward by, in effect, conferring in advance an opinion on the constitutionality on this or that alternative scheme. Yet we may appropriately note the growing practice of resolving the complex governance problems that arise in federations, not by the bare logic of either/or, but by seeking cooperative solutions that meet the needs of the country as a whole as well as its constituent parts.

This will be a serious blow to the federal government and, quite likely, to other legislation that walks close to the line of provincial powers, such as PIPEDA perhaps. It leaves Canada as one of the few countries in the world without a single, national act regulating securities.

This entry merely reports the fact of the release of the opinion and its conclusion. We'll do a follow-up soon, collecting the views of commentators from around the country.

Subjective top ten lists are great for starting arguments given the improbability of any two people sharing precisely the same worldview. It's a little tougher to engender heated debate over objectively measured top ten lists, but not impossible. After all, we can still dispute methodology and relevance! I invite Slaw readers to infer meaning and to offer analysis of the results.

So with that, I'm pleased to present for 2011 the top 10 most consulted cases on CanLII.

1. Bruni v. Bruni, 2010 ONSC 6568
2. Indalex Limited (Re), 2011 ONCA 265
3. Dunsmuir v. New Brunswick, 2008 SCC 9
4. Bedford v. Canada, 2010 ONSC 4264
5. R. v. Grant, 2009 SCC 32
6. Kerr v. Baranow, 2011 SCC 10
7. R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103
8. R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326
9. Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817
10. Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 SCR 217

Bruni rated 18,641 views and the Secession Reference came in at 5,105.

To get a sense of scale, compare these numbers with the 1000^th most consulted case – which still attracted nearly 500 views.

Graphically, the results of the top 1000 most consulted cases present as a "long tail" (or for the mathematically inclined, as an asymptote).

(Click on image to enlarge)

Among cases actually decided in 2011, the top 10 looks like this:

1. Indalex Limited (Re), 2011 ONCA 265
2. Kerr v. Baranow, 2011 SCC 10
3. JM (Re), 2011 CanLII 7955 (ON CCB)
4. Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196
5. United Food and Commercial Workers' International Union, Local 1518 v. British Columbia (Labour Relations Board), 2011 BCSC 455
6. Voltage Pictures LLC c. Untel, 2011 CF 1024
7. Ontario (Attorney General) v. Fraser, 2011 SCC 20
8. R. v. J.A., 2011 SCC 28
9. Ontario Korean Businessmen's Assoc. v. Seung Jin Oh, 2011 ONSC 6991
10. Withler v. Canada (Attorney General), 2011 SCC 12

Indalex amassed a remarkable 17,433 views and Withler a respectable 2,825.

The graphical representation of the top 1000 among cases decided in 2011 is indistinguishable from the above chart (save for the Bruni peak). The honour of 1000^th most consulted case falls to Athabasca Chipewyan First Nation v. Alberta (Minister of Energy), 2011 ABCA 29 with 341 views.

Background and miscellanea: 

• CanLII's operations have been continuously funded by Canada's provincial and territorial law societies (and by extension, Canada's lawyers and notaries) since 2000 to allow legal professionals and the public to access primary legal information at no direct cost.
• CanLII's database contains over 1 million documents and is on track to a record year of receiving nearly 7 million visits and delivering over 80 million page views
• While most documents on CanLII are decisions of courts and tribunals, page views of legislation and regulation outstrip page views of cases by a sizeable margin. For example, monthly Criminal Code page views exceed 20,000 and monthly views of the Code civil du Québec exceed 15,000.
• CanLII is widely used by the legal profession (over 95% of lawyers responding to our fall mini-survey reported at least weekly use), but as a freely available tool its non-lawyer users are legion. Monthly unique visitors are routinely over 200,000. Consequently, the results might be considered a barometer of public interest, as well and possibly more so, than as one of legal significance.
• A "view" or "consultation" of a document is measured as the interaction of an individual with the case URL. Mere appearance of a case in a list of search results will not constitute a view, but opening it to inspect it will. Similarly, where a user subscribes to RSS feeds and a case appears in the list, the case view does not take place until it is opened.
• Results above aggregate views for a given decision across formats (PDF or HTML) and across French and English.
• No French language case cracked the overall top 10, but one, Voltage, ranked among decisions issued in 2011. Originally issued in French, and subsequently released in English as well, French language views alone would have placed this case at number 7
• Standings measured as of December 20^th. If it turns out that thousands of Canadians spend the holidays reviewing the December 22^nd SCC decision on the Securities Reference, I will gladly update the list accordingly so that historians might have an accurate record of the case law that most concerned Canadians in 2011.

On December 8, 2011, the federal Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service (formerly Bill C-22) came into force. The new legislation aims to protect children from online sexual exploitation, by requiring suppliers of Internet services to the public to:

• Report tips they receive regarding websites where child pornography may be publicly available to the Canadian Centre for Child Protection
• Notify police and safeguard evidence if they believe that a child pornography offence has been committed using an Internet service that they provide

This includes where the supplier or its employee has "reasonable grounds to believe" the Internet service is being used for this purpose. Suppliers of Internet services include companies that provide access to the Internet, email services, content hosting and related services, and social networking sites; for example, AOL, Windows Live, Facebook, Twitter, Reddit, Google, Yahoo, Gmail, Hotmail, Dropbox, and so on.

This legislation strengthens Canada’s ability to detect potential child pornography offences. It will help authorities identify, apprehend and prosecute offenders and reduce the availability of online child pornography. Most importantly, this legislation will help identify the victims so they may be rescued from sexual predators.

What does this mean in practical terms?
The first duty the law imposes on service providers is to report to a designated agency any Internet address that is brought to their attention as possibly containing child pornography. To be clear, they are required only to report the Internet address; the designated agency will take it from there.

At that point, the designated agency would determine if the Internet address actually leads to child pornography, as defined by the Criminal Code (see definition below). Subsequently, the agency would establish the geographic location of the web servers hosting the material. Once it has confirmed the nature of the material and its location, the agency would contact the appropriate law enforcement authorities for action.

The second duty on service providers is to notify police when they have reason to believe that a child pornography offence has been committed using their Internet service. For example, if, while conducting routine maintenance of its servers, an email provider discovers that the mailbox of one of its users contains child pornography, the email provider would be required to notify police.

The service provider would be obligated to preserve the evidence for 21 days after notifying authorities. This provides police with a reasonable period of time to obtain a judicial order for further preservation or production of the evidence. After the expiry of the 21-day period, unless it is extended by a court order, the service provider would be required to destroy any information that would not be retained in the ordinary course of business.

Some definitions to understand
The Canadian Centre for Child Protection is a charitable organization that operates Cybertip.ca, Canada's national tip line to report online sexual abuse of children. Cybertip.ca processes some 600 reports a month relating to the sexual exploitation of children online.

"Persons" is defined in the law to include individuals, corporations, partnerships, unincorporated associations or organizations.

Section 163.1 of the Criminal Code prohibits the production, distribution, sale and possession of child pornography, which is defined as follows:

• The visual representation of explicit sexual activity with a person who is or who is depicted as being under the age of 18
• The visual representation, for sexual purposes, of persons under the age of 18
• Any written material advocating or counselling sexual activity with a person under the age of 18

Internet child pornography takes the form of images, sound recordings, videos, drawings or accounts of sexual assaults on persons under the age of 18.

Enforcement and failure to comply
Providers of Internet services won’t be required to monitor their networks in order to find child pornography or to investigate the activities of their users. They will not be required to confirm the content of an Internet address after they have received a tip.

The law has been tailored to limit duplicate reporting for those who are already required to report child pornography under the laws of the province or jurisdiction in which they operate. The Act has been designed to work in concert with those provincial and foreign jurisdictions that have already introduced, or are in the process of introducing, similar mandatory reporting requirements. For example, in Canada it includes or will include Manitoba, Nova Scotia, Ontario and Alberta. In addition, this law will complement existing measures to protect children against sexual exploitation, including tough sentences in the Criminal Code for child pornography offences.

Failure to comply with the duties set out in this legislation constitutes an offence punishable by summary conviction with a graduated penalty scheme. For individuals (sole proprietorships), the maximum penalty is a fine of $1,000 for a first offence, $5,000 for a second offence, and for third and subsequent offences $10,000 or six months imprisonment, or both. For corporations and other entities, maximum fines are $10,000 for a first offence, $50,000 for a second offence, and $100,000 for third and subsequent offences.

Hopefully, the new Act will perform its intended function, helping law enforcement agencies find and investigate cases of child pornography and charge the individuals involved. And hopefully, the Act strikes an appropriate balance between providing valuable information to officials and maintaining citizens' privacy. We will watch closely to find out how successful the law is and whether the new obligations place a burden on organizations.

This is my last post before the holidays.

I am wishing you a Merry Christmas and all the best for the New Year!

Je vous souhaite un Joyeux Noël et une bonne et heureuse année!

See you in 2012!

Here's the scenario: you're retained to argue an appeal in the tough U.S. Court of Appeals for the 7th Circuit; there's a precedent from that very court that appears clearly to stand in your way; you're about to prepare your brief for filing. What do you do about the obstinate precedential obstacle?

I'd be willing to be that if you took a poll of appellate advocates, something on the order of 99.4 percent of them would say that, whatever you do, you don't just ignore it. But that's exactly what counsel did in Gonzalez-Servin, et al. v. Ford Motor Company, et al. (No. 11-1665, Decided November 23, 2011 [PDF]), decided together with another similar case. And, as luck would have it, the case drew Judge Posner, noted, among other things, for his willingness to speak out plainly about what he sees as mistakes.

And speak he did.

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. . . .

[M]aybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable. The ostrich is a noble animal, but not a proper model for an appellate advocate.

Whereupon he included in the opinion a pair of photographs that graphically reinforced his point — and, I'd say, revealed what in his view was the most obvious feature of the counsel involved.

Of course, Posner being Posner, hastened to inform us that ostriches don't really stick their heads in the sand. Then he singled out the counsel by name. Ouch.

[Hat tip: Joel Kohm]

The Supreme Court of Canada announced today that judgment in the National Securities Regulator Reference will be delivered at 9:45 a.m. EDT on Thursday, December 22, 2011. That's In the Matter of Section 53 of the Supreme Court Act, R.S.C. 1985, C. S-26 and in the Matter of a Reference by the Governor General in Council concerning the proposed Canadian Securities Act, as set out in Order in Council P.C. 2010-667, dated May 26, 2010 (33718)

We'll link to it and commentary when it comes down.

Perhaps the word "Judgment" implies that it will be the decision of the Court, as a whole. No individual judgments, like Chief Justice Dickson's in National City Leasing to cause uncertainty.

For those who missed them the hearing webcasts are here and here

I have always loved law reform commission reports. They are great sources for legal research. Many of the reports provide historical background on an issue and you can often find comparative information about how other jurisdictions have responded to a legal problem.

My highlights from the fall of 2011:

• Of course, the great news is that all of the reports of the former Ontario Law Reform Commission have been digitized (as reported December 12 right here on Slaw)
• The British Columbia Law Institute (BCLI) is launching a two-year project to consider reforms to judge-made rules governing when a person is determined to have the mental capacity to carry out a transaction or enter into a relationship
• Earlier this week, the Law Commission in England published its final report on Intestacy and Family Provision Claims on Death. The report proposes 2 draft bills to bring inheritance law into line with the needs and expectations of modern families, and simplify the law to help the bereaved deal with the property of a deceased family member.
• In late October, the Law Reform Commission of Ireland released its Consultation Paper on Sexual Offences and Capacity to Consent. In the Consultation Paper, the Commission made 15 provisional recommendations for reform, including the repeal and replacement of the existing law on sexual offences involving persons with intellectual disability. The Commission argued that section 5 of Ireland's Criminal Law (Sexual Offences) Act 1993 (a) fails to protect people with intellectual disability from unwanted sexual contact generally and (b) fails to empower people with intellectual disability to realise their right to sexual expression (it does not clearly provide for situations of consensual sex between two persons with intellectual disability). The Commission also looked at practices and laws in England and Wales, Scotland, Canada, and New Zealand.
• In September, the British Columbia Law Institute released a Report on Proposals for Unfair Contracts Relief: "This report recommends reforms to the leading concepts used by contract law to tackle the problem of unfairness. These concepts are unconscionability, duress, undue influence, good faith, and misrepresentation. Over the past years, they have been considered in an increasing number of court decisions. This has led to an expansion of, and a degree of confusion about, their scope. It is now timely to rationalize and consolidate these concepts." The BCLI website also includes a consultation paper on the issue as well as 4 backgrounders.
• The Alberta Law Reform Institute (ALRI) released a discussion report on Estate Administration.

Of course, people often ask whether law reform commission reports have any real impact. Not always, but sometimes. In November, the proposed Family Law Act was introduced in the British Columbia legislature after a major review of family legislation in the province. It is intended to overhaul the Family Relations Act. The proposal contains recommendations for changes to family law contained in four reports of the British Columbia Law Institute:

• Report on Pension Division on Marriage Breakdown (BCLI Report No. 44, 2006);
• Report on the Parental Support Obligation in Section 90 of the Family Relations Act (BCLI Report No. 48, 2007);
• Report on Appointing a Guardian and Standby Guardianship (BCLI Report No. 30, 2004); and
• Report on the Need for Uniform Jurisdiction and Choice of Law Rules in Domestic Property Proceedings (BCLI Report No. 1, 1998).

We have discussed Arizona’s controversial new anti-immigration measures several times on Slaw (e.g., here, here and here). Besides appearing to discriminate against various groups, the measures conflict with federal immigration laws and policies. Well, the saga is not yet over. On December 12, 2011, the New York Times announced that the United States Supreme Court agreed to decide whether Arizona may impose such tough anti-immigration measures. The measures include:

• Requiring police officers to determine the immigration status of people they stop for a violation of any law if the officers think the persons are in the country illegally
• Requiring people to carry their identification papers at all times in public places
• Making a crime of failure to apply for valid immigration papers
• Requiring everyone who is arrested to have their immigration status checked with the federal government before release
• Allowing police officers to arrest anyone they believe has committed a crime that would make them removable from the country
• Making it a crime for illegal immigrants to apply for or perform any work

The US Ninth Circuit Court of Appeals in San Francisco previously stopped the above provisions from coming into force.

Paul D. Clement, representing Arizona, urged the Court to hear the case, Arizona v. United States, No. 11-182, by stating:

The law did not conflict with but, rather, complemented federal policies. The Ninth Circuit’s decision had completely foreclosed Arizona’s effort to address the disproportionate impact of unlawful immigration in a state with a 370-mile border with Mexico.

We shall see whether the Supreme Court agrees with Mr. Clement.

On December 7, 2011, Bill 28, The Registered Human Resources Professionals Association Act, 2011 was reintroduced in the Ontario Legislature (formerly Bill 138). This time, by representatives from all three political parties: David Zimmer, MPP, Christine Elliott, MPP and Michael Prue, MPP. The aim of the Bill remains to create a new public act governing HRPA and its members making the HRPA a true regulatory body much like those governing accountants and lawyers. We examined the previous Bill (which is similar to the new Bill) on Slaw here.

The Bill would repeal the Human Resources Professionals Association of Ontario Act, 1990 and enact the "Registered Human Resources Professionals Act, 2011" to:

• provide a framework for membership in the Association.
• prohibit the use of specified designations and initials by unauthorized individuals or entities.
• set out procedures for dealing with complaints against the Association's members and establishes a disciplinary process.
• authorize practice inspections.
• establish procedures for determining whether a member of the Association is incapacitated and provides the capacity committee with the power to take steps to address any incapacity in so far as it affects a member's practice.
• provide for the appointment of investigators and inspectors to conduct investigations and inspections under the Act, and sets out their powers.

According to the HRPA, the single provision that is generating the most comment is the power to enter work premises without warrant or court order in the context of carrying out investigations. The HRPA states that this provision is common place and exist for all regulated profession in Ontario without exception. This power is intended to be used if there is reasonable and probable grounds that an HRPA member has committed an act of professional misconduct.

Over the next few months, HRPA will be engaging members by:

• Creating a dedicated website that will provide members with comprehensive information about the act (backgrounders, FAQs, etc.). The website, www.hrpaact.ca, was launched on December 9th, 2011.
• Hosting local Chapter "Town Hall" meetings and webinars.
• Providing an information session at the annual HRPA conference in February 2012.
• Communicating regular status updates on the new act.

The HRPA states:

The new act, for which HRPA has been lobbying over the past couple of years, will enhance the credibility of the profession, support our members' careers and clarify the regulatory powers to oversee what's evolved into a true profession requiring protection of the public.

According to yesterday's news (see here for an article from the National Post), the government of New Brunswick will be asking the Supreme Court of Canada to look into the status of its language laws as it appeals the decision of its appellate court upholding the decision of a provincial judge who excluded breath-sample evidence of a suspected impaired driver pursuant to s. 24(2) of the Canadian Charter of Human Rights and Freedoms because his language rights had been violated (see R. v. Losier, 2011 NBCA 102 (CanLII)). Indeed, in that case, a police officer only offered the suspected impaired driver the right to be served in French thirty minutes into his detention, which was found to be contrary to the province's language laws. A similar defence has been raised in a number of New Brunswick cases already. The province seeks a decision on whether or not a Charter remedy can be used for the breach of a provincial law, in this case, New Brunswick's Official Languages Act.

Living and working in a province in which language rights are an extremely sensitive topic, this news is particularly interesting considering the impact any Supreme Court decision could have on language rights in Canada. Should the Supreme Court accept to hear this appeal, it looks like it will ultimately be asked to weigh in on the appropriate balance between the protection of language rights and the protection of the public.

We read from time to time that Internet defamation is worse than that in other media because of its global reach and persistence over time. Thus the Ontario Court of Appeal in Barrick v Lopehandia 2004 CanLII 12938 issued an injunction against further defamation, in part because of the Internet’s character as “potentially a medium of virtually limitless international defamation” (the Court quoted Matthew Collins, The Law of Defamation and the Internet.) The court (by majority) also increased fivefold the damages awarded at trial, for similar reasons.

Recently the British Columbia Supreme Court granted ex parte injunctions against publication of defamatory material. Nazerali v Mitchell 2011 BCSC 1581 (CanLII) (and against any transfer of domains or material that might facilitate the spread of the libel). See a comment on the case here.

On the other hand, the Ontario Superior Court recently held in Baglow v Smith 2011 ONSC 5131 (CanLII) that comments on a blog should not necessarily give rise to a claim in defamation, when the person alleging defamation has a right of reply in the same blog. The readers are expecting a reply, not a lawsuit, said the Court. It was not appropriate for a participant in a comment thread to go off to court, dropping out of the debate. One can ‘remove the sting’ by responding. The judgment quotes Justice Binnie in the SCC’s WIC Radio decision on fair comment, that public controversy can be a rough trade, and the law needs to accommodate its requirements.

Are the rules about what one can or should say online different from those that apply in print? Should one be compelled to defend oneself online? Are insults less defamatory there (here)?

Can a copyright owner enforce his rights in small claims court? The answer varies depending on which side of the 49th parallel you are on. In Canada, yes! In the U.S., no. Perhaps this is about to change. The U.S. Copyright Office is accepting submissions from the public until 16 January 2012 on remedies for copyright infringement suits in small claims courts. U.S. Congress has asked the Copyright Office to investigate and seek comment on how small copyright claims have been managed in the past and to outline recommendations for changes and alternatives to current procedures.

This is not the first time this issue has arisen in the U.S. A report was tabled by the Copyright Office to the U.S. House of Representatives, 109^th Congress, 2^nd session on March 29, 2006. As part of their investigation of orphan works, the question of alternative mechanisms for pursuing copyright infringement cases was brought forward by photographers who had no resources to sue in federal court. In this report, the U.S. Copyright Office agreed to study the issue and to report to Congress the findings as to whether and to what extent copyright holders have been hindered from pursuing legal action and if the current system is not effective, what changes in law would be necessary. The report also outlined seven topics for information collection and also indicated four alternatives which might be available.

The advantage of small claims court is that it is often speedier than other courts and costs can be minimized since plaintiffs often represent themselves without the aid of a lawyer. You are only eligible to sue in small claims court if the monetary compensation being claimed is within a certain limit. For example, this amount is $25,000 in Ontario.

An announcement of new legislation being introduced here in Nova Scotia caught my attention recently, leading me to do a little searching which produced something that I find interesting. Considering the history of Halifax, and Nova Scotia in general being a seaport kind of place, it might seem somewhat late the NS Gov't is introducing legislation to regulate tattoo parlours in the province. The legislation itself is not that fancy in that is simply enabling regulations to be created to regulate the industry.

This bit of news caused me to wonder what other jurisdictions have done regarding tattooing so I did a bit of searching (via CanLII) of all Canadian jurisdictions, which revealed that there are 13 acts across the country that cover tattoos or tattooing. What I found interesting is that of those 13 statutes; 9 dealt with to tattoos for animals or livestock, 3 are in regard to humans and lastly Nova Scotia has had legislation regarding the Royal Nova Scotia International Tattoo prior to having anything regarding about humans actually getting tattoos. There are 60 regulations across the country that cover tattooing; of that 60; 40 have to do with tattoos on animals or livestock and 20 have to do with tattoos on humans.

Make of all this, what you will. Perhaps, this should not have come as a surprise to me given the importance of livestock in this country and our affinity for pets; but maybe because it is Friday, or possibly because the silly season has hit law schools, this struck me as meriting mention.

Last April, David Canton noted an Alberta Court of Appeal decision that Leon's Furniture was justified in collecting licence plate information from people picking up furniture at the store. The AB CA held that the licence plate number was not personal information.

Recently the Supreme Court of Canada refused leave to appeal, a decision that disappointed some privacy authorities.

Are licence plate numbers like Internet Protocol addresses (at least in the eyes of the federal Minister of Justice), in that they point to a machine and not to a person, and a machine that may be used by more than one person? A licence number is also visible to anyone who looks at the car to which it is attached, so what expectation of privacy can one have about it?

Some debate is possible whether a licence plate number is personally identifiable information, in the term used by PIPEDA. Does it depend on how hard one must work at identification? While on the surface, in a one-step analysis, the number does not necessarily relate to a particular individual (though it might, if only the single owner ever drove the car), these days there are a lot of big data bases around, and it would not take too many analytic steps (or snooping) to find other references that might allow one to figure out the individual to whom the information relates.

Some people have figured out how to identify the real people behind even apparently anonymized data.

It may be helpful separating the question whether a licence number is personally identifiable information, on the one hand, from whether Leon's was justified in asking for it, on the other. I don't have a problem with the store's asking for that kind of identification from someone picking up goods, especially on behalf of someone else. How does one explain to the real purchaser that one has delivered his or her goods to a fraudster without keeping any means of tracing that person?

For whatever reason, the SCC has declined to set the law right, for the moment. Or is it right already?