Elections Canada privacy problems

So the Canadian government’s Privacy Commissioner decided to investigate the practices of  Elections Canada.  The concern was that since organizations like this collect such a large amount of personal information from citizens,  they are prime targets for identity theft. 

I guess there was some valid concerns that came out of this investigation, and the main points are produced below.

• At least one per cent of voters lists have gone missing during elections and byelections.
• Elections Canada collects too much personal information on Canadians, including some teenagers too young to vote.
• Paper and electronic copies of voter lists are widely circulated to political parties and candidates, who aren't covered by the same privacy laws that federal employees have to abide by. Stoddart said that is a notable gap in Canada's privacy legislation.
• Such parties don't have a formal way to report privacy breaches to Elections Canada.
• Canadians aren't fully informed about how their personal information will be used.

It’s tough to conduct an election without a lot of the personal info collected by Elections Canada.  It helps determine your identity at the poll and should stop voter fraud.  But the Commissioner is right in that this info is at extreme risk of being stolen.  Poll workers are generally just regular citizenry, paid a fair wage but not one that could compete with the lure of ill-gotten gains. 

Or a situation like this could emerge:

Stoddart cited one example from 2006, when RCMP discovered lists of voters' names and addresses at an office belonging to the Tamil Tigers, classed in Canada as a terrorist organization, which was allegedly using them to find people who might help them financially

That is a concern that never would have crossed my mind, but apparently it exists.  It would be worthwhile to make the changes to Elections Canada as soon as possible, to prevent any further breaches.

[Source: CBC]

Joe Arpaio – Sheriff with a vendetta

I’ve been biting my tongue on this one and just watching it unfold, but it’s been a pretty wild story.  I started reading about this once Sheriff Arpaio’s deputy was jailed for confiscating a lawyer’s court document in court. 

Now the story gets more and more outrageous.  First, Arpaio railed against the Judge’s decision, now he’s taken to actively pursuing the judges who rule against him.  The Judge who jailed the deputy, Superior Court Judge Gary Donahoe, has been arrested by the Sherriff’s office and is being accused of hindering prosecution, obstructing justice and bribery. 

The complaint names all five members of the Board of Supervisors, Maricopa County Manager David Smith, Deputy County Manager Sandi Wilson, Wade Swanson of the Office of General Litigation, Presiding Judge Barbara Mundell, Judge Anna Baca, Judge Gary Donahoe, Judge Kenneth Fields, attorney Thomas Irvine, and attorney Edward Novak.

This is a pretty major allegation, and the coverage of it has been extremely unfavourable.  The Phoenix New Times has been very critical, and has reported that pretty much no evidence was offered over these vague allegations.  This is what the New Times says:

Judge Donahoe removed the County Attorney's Office from investigating the court tower construction, he rejected the notion of holding indicted superivisor Don Stapley in contempt of court for alleged wrongdoing, and he jailed detention officer Adam Stoddard on a contempt of court charge.

So first Thomas filed a RICO lawsuit alleging that Donahoe and other superior court judges are part of some vague and convoluted conspiracy, working together to see that the new court tower (with all those big offices and marble floors) is built and the sheriff's office/county attorney's office investigation is thwarted.

Then they charge the big kahuna himself, Judge Donahoe, with criminal counts.

Arpaio’s office also got a warrant to search the home and chambers of Judge Beverly Mundell.  This is an extremely inappropriate manoeuvre, especially with little-to-no evidence of wrongdoing.  Thankfully, the Court of Appeal has stopped the search warrant for now.

TPM has also alleged that Arpaio is under FBI investigation for allegedly using his authority to retaliate against political adversaries. 

This is a chilling story, and one I hope comes to a speedy resolution.

TV is an essential good

We’ve been highlighting the ridiculous over here at ThinkLegal, and this is no exception.  A judge in Brazi has ruled that television is an essential good.

A man in Sao Paulo brought an action against a store for not replacing his broken TV.  The judge awarded $2,600 in “moral damages”, that is damages suffered because this man couldn’t watch TV.

"Without it, how can the owner watch the beautiful women on 'Big Brother,' the national news broadcast or a football game," the judge quipped.

It’s an absurd decision.  While I understand some of the point of view here, in that TVs are indeed extremely common, there is absolutely no way it can be considered an essential good.  Food, shelter, heat, those sort of things all make sense.  I would even argue education and water should count.  But TV?  Hell no.

[Source: Reuters]

Rumsfeld is a war criminal?

This is a hyperbolic headline, but it’s totally worth looking at.  A while ago, a United Nations official was quoted as saying that good old former defense secretary Donald Rumsfeld was a war criminal because he knowingly authorized torture.

Now, since this has clearly not proceeded at all it seems like this was a bit grandiose, but I want to bring this to your attention:

"We have clear evidence," he said. "In our report that we sent to the United Nations, we made it clear that former Defense Secretary Donald Rumsfeld clearly authorized torture methods and he was told at that time by Alberto Mora, the legal council of the Navy, 'Mr. Secretary, what you are actual ordering here amounts to torture.' So, there we have the clear evidence that Mr. Rumsfeld knew what he was doing but, nevertheless, he ordered torture."

Those are the words of United Nations Special Rapporteur on Torture Manfred Nowak, and they are rather striking.  It makes me wonder what this information is that they have and why it has not been acted upon.

The evidence is apparently based on documents signed by President Bush and reports from other Department of Justice lawyers.  But clearly this will not at all proceed.  The likelihood of a senior US government official being put on trial is precisely nil. 

But it would make for an interesting trial.

[Source: Raw Story]

Update: Justice of the Peace Quits

A quick update to this post: Justice of the Peace may be racist.

Bardwell has finally resigned his office.  According to CNBC:

Keith Bardwell quit with a one-sentence statement to Louisiana Secretary of State Jay Dardenne: "I do hereby resign the office of Justice of the Peace for the Eighth Ward of Tangipahoa Parish, Louisiana, effective November 3, 2009."

Louisiana Governor Bobby Jindal said that this was long overdue, and I must say that I kind of agree with him.  Bardwell’s refusal to apologize and refusal to step down has been a travesty for the administration of justice. 

I don’t think you can have someone in office as a Justice of the Peace who openly discriminates against those of other races.  It simply does not allow for faith in the justice system.  And yes, I obviously understand the role JoP’s play, but being part of the greater legal establishment does impose a certain obligation upon them.

Now, the couple in question has filed a federal lawsuit against Bardwell.  Now I don’t think that’s necessary in a case like this, when the ‘justice’ has already been served by his removal from office.  The damage was minimal, as the couple was referred to someone who would perform the ceremony and not rejected outright.  But we will see how it goes.

[Source: MSNBC]

US Supreme Court becomes Canadian

Yes, I mean this a bit facetiously, but to a certain extent it is true.  The US Supreme Court has now agreed that improperly obtained evidence may be admissible now, in particular circumstances.  This has been the law in Canada for some time as the interpretation of s.24(2) of the Charter of Rights and Freedoms, and has been expanded and reaffirmed in a quartet of SCC judgments this past summer (for example, R. v. Grant).

Specifically, the SCOTUS has said, in a 5-4 decision, that evidence obtained from an unlawful arrest based on careless record keeping by the police may be used against a criminal defendant.  This is still a very specific exemption from the exclusionary rule.

“To trigger the exclusionary rule,” Chief Justice Roberts wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

This is an interesting decision from a rather conservative court, though one that is not unexpected.  It does, to a certain extent, water down the rights of the accused.  However, unlike in Canada, it simply excuses sloppy record keeping from preventing an otherwise sound charge. 

The case began when methamphetamines and a gun were found after Bennie Herring was arrested based on police officers’ mistaken belief that he was subject to an outstanding arrest warrant.  He wasn’t.  Or rather, he had been, but the warrant was withdrawn though the records were not updated.

This didn’t prevent the courts from getting the conviction that Herring rightly deserved.  And, in my opinion, this was a correct decision.  The officer acted in good faith in moving on what he perceived to be an outstanding warrant. 

The Dissenting judges (4 of the liberal justices on the Court) stated that the majority

“underestimates the need for a forceful exclusionary rule and the gravity of record keeping violations,” particularly given the heavy reliance by law enforcement on the electronic databases that “form the nervous system of contemporary criminal justice operations.

I see their point as well.  We don’t want to excuse police error and encourage sloppy record keeping.  However, in the isolated case like this, I do think the court should have the discretion to admit this sort of evidence.  I mean, it’s worked in Canada, right?

[Source: NYT]

IUD removal sparks claim

In what has to be one of the most invasive and ridiculous stories I have read all year (as more and more of these posts seem to be), a Nurse at Presbyterian Medical Services Rio Rancho Family Health Center allegedly yanked out a woman’s IUD (inter-uterine device).

Nurse practitioner Sylvia Olona is alleged to have done this during a procedure to shorten the strings on the device to make it more comfortable. 

According to the plaintiff,

"Olona then stated, 'having the IUD come out was a good thing.' She asked (the plaintiff) if she wanted to hear her 'take' on the situation. Without receiving a response, Defendant Olona stated, 'I personally do not like IUDs. I feel they are a type of abortion. I don't know how you feel about abortion, but I am against them. What the IUD does is take the fertilized egg and pushes it out of the uterus.'

"Defendant Olona stated, 'Everyone in the office always laughs and tells me I pull these out on purpose because I am against them, but it's not true, they accidentally come out when I tug.'

Now, a statement such as this must be taken with a grain of salt as it is simply the allegations of the plaintiff and has not been subject to any sort of judicial treatment.  For the sake of all involved, I hope this was just a tragic accident and was truly a mistake.  If not, there are major issues at stake here, not the least of which is the right for medical treatment to remain separate from any sort of personal views.

[Source: Courthouse News]

Justice of the Peace may be racist

In what has to be one of the most absurd and unacceptable decisions by a legal system, Justice of the Peace Keith Bardwell has denied an interracial couple a marriage license.

Why?

Because:

he had discussed the topic with blacks and whites. “There is a problem with both groups accepting a child from such a marriage,” Mr. Bardwell said. “I think those children suffer, and I won’t help put them through it.”

Despite how ridiculous that sounds, he goes on to say this:

"I'm not a racist. I just don't believe in mixing the races that way," Bardwell said.
"I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else." [emphasis added]

There have been calls from everyone, including the Governor of Louisiana (the infamous Bobby Jindal) to have Justice Bardwell removed from office.  He is, technically, an elected official, so this is not as simple as it may seem. 

Besides the obvious racism and the unnecessary proselytizing, there is an argument to be made that Justice Bardwell may have broken state law by refusing to conduct a marriage without reason to doubt capacity to enter into this contract.  Essentially, by refusing on prohibited grounds.

Listen to Bardwell’s response below:

Watch CBS News Videos Online

Further, it seems that Louisiana's law may be interpreted in a way favourable to Bardwell, according to CNN.

A state statute says justices of the peace may perform marriage ceremonies, but it does not require such officials to do so, Tammi Arender, a spokeswoman for the Louisiana attorney general, told CNN on Monday.

However, the Louisiana Supreme Court does have the ability to remove him from office if they deem it appropriate.  In this case, I sure hope they do.

[Source: CNN, LA Times, NYT]

State of Kentucky and Net Neutrality

I think the most remarkable thing about this decision is the media coverage of it.  I mean, quite honestly, I agree with what this reporter states, but the tone is both dismissive and amusing:

In a decision what can only be described as the grownups regaining control, the Kentucky Court of Appeals yesterday overruled a lower court decision that allowed Gov. Steve Beshear's Keystone Cops to confiscate 141 domain names last fall.

The ruling can be read here, if you are looking for the details.  The lower court erred in law so severely that there was no other recourse but to overturn the decision.  To let it stand would have set a dangerous precedent for electronic advocates and internet companies everywhere.

The Court of Appeal states:

[I]t stretches credulity to conclude that a series of numbers, or Internet address, can be said to constitute a "machine or any mechanical or other device ... designed and manufactured primarily for use in connection with gambling."

It certainly does.  There’s no way to justify that an IP address can qualify on its own to be a machine or device manufactured primarily for use in connection with gambling.  IP addresses cannot be said to have been manufactured primarily for anything other than connecting remote machines together for any number of purposes.

Thank goodness the cooler heads prevailed.

[Source: Network World]

Arar was ID’d by Khadr?

I won’t waste time rehashing the Omar Khadr story.  But suffice it to say that this development back in January was rather shocking.  Even more shocking is that nothing has really been mentioned about this issue since.

In January 2009, it was widely reported that Omar Khadr, the Canadian child detained at Guantanamo and now the only Western citizen to still be held there, had identified Maher Arar.  Arar is a Canadian who was detained when travelling via New York, arrested and deported to Syria for several years while he was tortured mercilessly.  He has now successfully obtained money from the Canadian government after a public inquiry cleared him of all charges.

The CP24 news story states that:

Maher Arar, the Ottawa computer engineer whose 2002 deportation and torture in Syria made him a symbol of the perils of post-9-11 hysteria, was identified by Omar Khadr as someone he'd seen at al-Qaida safehouses and possibly an Afghan training camp, an FBI special agent testified Monday.

It was pretty spurious as far as allegations go, because this information had not come up until this point and has not really come up again.

Most importantly, this testimony was widely condemned.  Khadr’s US Lawyer Lt.-Cmdr. Bill Kuebler said that Khadr often lied to investigators so they would stop torturing him.  Paul Cavalluzzo, who served as chief counsel for the Arar inquiry also stated that it was useless if it was a product of torture.

Supreme Court Strip Searches

Okay, the title of this piece may be a bit misleading, but the point is there.  The Supreme Court of the United States is to rule on whether or not schools can strip search students.  In this case, an 8th grader.

Basically, a school in Safford, Arizona is very against prescription medicine.  So when one student claimed that another student had given her ibuprofen, the school searched the girl’s locker.  That, in and of itself, may raise eyebrows but is not uncommon.

When nothing was found, they ordered the 13 year old girl to strip in front of two women to see if she was hiding any pills.  This is completely asinine.  

Perhaps it would be one thing if the girl was accused of having some sort of weapon, but ibuprofen? Really?

The school, appealing to the Supreme Court, has said that the Court of Appeal decision to ban these searches:

The decision "places student safety and school order at risk by impairing the ability of school officials to effectively carry out their custodial responsibility," it said.

That’s also ludicrous.  There were multiple options available to the school, not the least of which was sitting her down in the principal’s office and calling her parents.  Or, here’s a thought, don’t strip search a girl based on a report from another 13 year old girl.  It’s common sense.  I hope the SCOTUS finds against the school board very quickly.  It’s a pretty egregious violation of personal space.

[Source: Reuters]

BART Cop Arrested

This is an extraordinarily outdated post, but I wanted to talk a little bit about the incident in Oakland back in January.

For anyone unfamiliar with the issue, the BBC sums it up best when they say: “Johannes Mehserle, a transport officer at the time, is accused of shooting Oscar Grant, 22, in the back as he lay face down on a train platform.”

That is it, in a nutshell.  The details do paint a bleaker picture. 

The story unfolds that the police responded to a fight on the BART Train and pulled several men off the train, including Grant.  Eventually, Grant, several of his friends, and others were seated along the side of the station and Grant appears to be handcuffed.  Finally, Grant was pulled up and thrown on the ground, at which point it appears there was some resistance.  However, while one officer pinned him down another pulled his gun and shot him once in the back.

Mehserle has argued that Grant was actively resisting arrested and has alluded to pursuing several other events.  He was arrested on charges of murder in January.  This is extremely rare for a police officer, especially regarding an event that occurred in the line of duty. 

It will be interesting to follow this case to examine a fairly unprecedented trial process.

[Source regarding Arrest: BBC News]

Copyright Primer

For any US readers out there, this is a pretty good post explaining some of the details of the Creative Commons license.

If you’re not familiar with  the Creative Commons Program, it’s a way for people to copyright their work and specify how it can be used.  The program focuses on digital creations, but can be applied to other things as well.

While there is also a Canadian Creative Commons program, there is no major explanatory post about it.  Some of the guiding principles are the same but the differences between American and Canadian copyright law is such that you may want to get specific advice.

From the “About” section:

We provide free licenses and other legal tools to mark creative work with the freedom the creator wants it to carry, so others can share, remix, use commercially, or any combination thereof.

[Source: Freelance Switch via Lifehacker]

You just got served by a twit

I almost feel the need to retire from both the law and the internet after reading this article.

Apparently, the UK High Court has just approved its first injunction via Twitter.  That’s right.  Twitter.  That Twitter.  The mind-numbing website with a 140 character limit.  The site that has singlehandedly made the internet a little less valuable.

Someone on Twitter was alleged to have been impersonating a right-wing blogger.  They were, in essence, doing so anonymously.  To combat this, and to allow effective service of a court writ, the High Court has allowed service by a tweet.

Andre Walker at Griffin Law said the anonymous Tweeter targeted by the writ will get a message from the High Court the next time they open their online account.

"Whoever they are, they will be told to stop posting, to remove previous posts and to identify themselves to the High Court via a web link form," he said.

I wonder how well this works.  It’s now not uncommon for lawyers in Canada to use Facebook to effect service, but somehow I find that much less absurd than Twitter.  But maybe that’s just me.

[Source: Yahoo! News]

Man cuts off his own finger…on purpose

In a fit of rage I can never image pursuing, a Portuguese man has cut off his own finger with a butchers knife.  In court.  On the defence table.

A judge refused his offer to settle a 170,000 euro debt and said part of his farm must be sold. 

The craziest part is that the man himself said that

“"My intention was to tear up all the case papers and splatter them with blood so I could prevent the expropriation order for my land,"”

I don’t really think that would have stopped anything, but it does go to show just how emotional and frustrated this man was. 

Without more details its hard to go into the legal specifics of this case, but I frankly can’t understand why a judge would refuse an offer to pay the debt directly and would order the sale of part of the property.  I can only assume that the Court had some information not provided in the news clip, but if they did not than this sounds a lot like it offends the principles of justice.

[Source: Reuters]

You can be drunk on the job in Peru

The Constitutional Tribunal of Peru (Peru’s top court) decided back in January of 2009 that workers cannot be fired for being drunk on the job.

It’s an extremely controversial decision and one, quite frankly, I do not support.

North American labour law would absolutely allow the firing of someone for being intoxicated at work.  There are, however, exceptions, where the company may be forced to send the employee into a rehabilitation program instead of merely dismissing them.

The reasoning of the court is interesting:

The firing was excessive because even though Cayo was drunk, he did not offend or hurt anybody, Fernando Calle, one of the justices, said on Wednesday.

I do understand why the court felt the need to help this man, but at the same time it is unacceptable to relax the workplace rules like this. 

Celso Becerra, the administrative chief of Chorrillos, a suburb of Lima, denounced the ruling.

"We've fired four workers for showing up drunk, and two of them were drivers," he said. "How can we allow a drunk to work who might run somebody over?"

[Source: Reuters]

Sorcery Murders in Papua New Guinea

Apparently murders based on accusations of sorcery have been a growing problem in Papua New Guinea.  So much so that the government had announced that they are planning to toughen laws to combat it.

In 2008, more than 50 people were murdered and the defendants were simply using claims that the victims were magic-makers as an excuse.

This is not okay.  Especially because the justice system couldn’t handle it.  The article says:

Prosecuting those who kill these so-called magic makers within tight-knit communities is problematic, they add, and rural courts often acquit those who are made to stand trial.

I completely understand the debate that goes on between the cultural traditions (in terms of the continuing old fears) and the newer secular laws.  But in the end, there needs to be laws in place that protect individuals. 

[Source: BBC]

Service dog scam

   This is a horrific story, but one that makes you think about the consequences of contract law and the law of sales.

The basic premise to this story is that a Mark Rinkel, who was 13 at the time, raised enough money to buy a service dog for his little brother James.  James suffers from Type 1 Diabetes, which is highly dangerous for children and can easily result in death.

This dog was designed to detect dangerous drops in James’ blood sugar levels  and was supposed to make some sort of commotion to alert others.

Mark had raised $17,000 for this dog.  He used $6,000 to buy the dog from a company called Heaven Scent Paws, and then donated the rest of the money to the company as a way to subsidize dogs for others.  So far, so good, right?

The issue arises because Mark and his family allege that the dog (Jedi) was not, in essence, fit for purpose.  Jedi did not detect the blood sugar drop and was frightened of strangers to the point of allegedly biting some.  This is a major issue for service dogs.  They are supposed to be trained to not get spooked easily and to deal well with others.  This is part of the reason they are allowed everywhere.   Apparently they are not the only ones who are unhappy with the company, as the Missouri Attorney General has filed a lawsuit following 28 complaints.

The company responds by saying

"A core group of about 10 families who are unhappy with Heaven Scent Paws never followed through on their contractual relationship with the company, including the follow-up care and training at home," Bandre said. "These are people who expected to get home with the dog who alerted 100 percent of the time right away, and frankly, that defies logic after a one-week class in Missouri."

The Rinkel family took this dog to seven experts who unanimously testified that the dog was unfit to be a service dog.

What appears to be at the core of this issue is a few issues.  One, whether this would qualify as the sale of goods or services.  For the most part, that distinction is irrelevant as there is still a certain amount of implied warranty in the sense that simply by selling something the vendor is warranting a certain level of fitness for purpose.  I believe this is where the case will turn.  The Company appears to be arguing that the onus is on the family to continue the training to eventually receive a proper service dog.  The family is stating that the company misrepresented themselves by suggesting their dogs were already ready.

I believe it is more complicated than that and that service dogs and health services should be held to a higher standard than other vendors.  Basically, since lives depend on these animals, there should be a higher guarantee of fitness for purpose.  Now we have to see if the courts agree.

[Source: Denver Post]

Ontario alcohol inspectors get lambasted

For those of you who have ever been to Ottawa, many of you will know of D’Arcy McGees.  It’s a pretty popular little pub in a very busy area of downtown.

This article, despite it being mainly a rant by a journalist against the liquor inspectors, does provide for some useful discussion.

Ontario’s system of liquor inspectors is run through the Alcohol and Gaming Commission of Ontario (AGCO), which reviews ‘incidents’ in an administrative tribunal setting.

When an inspector has an issue, he or she makes a report to the AGCO and a panel of two board members hears the complaint.  The issue with administrative tribunals, especially those who feed themselves by actively seeking complaints, is one of self-interest.  Unlike many other tribunals which respond to complaints issued by the public, the AGCO sends its inspectors to various locations and provides them with significant amounts of discretion.

The article does make a strange quote:

“It gets worse -- unlike a criminal court, where the prosecution has to establish guilt beyond a reasonable doubt, to a high evidentiary standard, at an AGCO hearing, the burden of proof is much lower -- on the balance of probability -- as is an evidentiary standard that allows the use of hearsay.”

Now, perhaps my understanding of the law of evidence is not absolute, but I do not believe that the use of hearsay is always allowed in cases where a balance of probability is used as the standard of proof.  It is, however, generally allowed in most (if not all) administrative tribunal proceedings.  This is not unusual, yet in a case where the offence hinges on the inspector’s assessment of whether or not a bar patron is intoxicated, this could easily be problematic.

According to the AGCO, an inspector is to look for a patron who is talking too loudly, slurring, sweating and is off balance.  It’s a bit subjective, because I do know several people who are like that on a daily basis.

The reporter also harangues the government for, essentially, eavesdropping.  The liquor inspector is able to use his or her overhearing of your conversation as evidence against you.  The report states that “Much worse that government is encroaching on the rights of the individual to the extent that a supposedly private conversation becomes a matter of public record. The Ministry of Truth would have approved.”  Hyperbolic, sure, but no less alarming.  With the allowance of hearsay evidence, the inspector can freely supply whatever snippets of conversation he or she believed he overheard, all of which can be used as evidence against the bar in question.

There’s not a lot more to this story except for the apparent rise of incidents coming before the AGCO in the last 10 years.  The reporter states that it is a rise of nearly 60%.  That is significant, but without context it is difficult to know if this is partially due to the growth of bars in Ontario or some other factor. 

Still, I believe the issue to take away from this story is merely that the structure of the AGCO seems to seem support overzealous liquor inspectors.  The AGCO is dependent on its inspectors to, in a sense, drum up ‘business’ in order to justify its existence and the current level of staffing.  Now, to a certain extent, they are clearly doing a necessary job.  However, it’s alarming that there does not appear to be the transparency and accountability expected of publicly funded tribunals.

[Source: National Post]

Defense of Marriage Act

This is fundamentally one of the worst pieces of legislation that has ever been crafted by human hands.  So bad, that even the man who originally wrote the DOMA is in favour of having it rescinded.

For those who are unaware, Bob Barr is the man who is responsible for one of the most reprehensible things to come through Congress.  The DOMA, enacted in 1996, federally recognizes only heterosexual marriages.

As of today, Bob Barr has officially introduced legislation designed to repeal the DOMA, and sadly the Obama administration is in trying its best to protect it.  It’s a tough position, because while they are defending the technical merits of the legislation, they still are taking pains to state that they still oppose it.  The Obama administration has admitted in court that they want it repealed and that it is discriminatory.

“Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the department disagrees with a particular statute as a policy matter, as it does here,’’ the attorneys said.”

This really, truly, illustrates the interesting position that government lawyers are in.  I truly believe that, more so than in private practice, government tests a lawyers ethics.  In many situations, government lawyers must defend policies that they truly disagree with.  In private practice, there is usually a situation where you have to defend a client you don’t like or that you believe is guilty of something.  But the implications of that case are rarely as far reaching as a government policy.

Passenger forced to cover Arabic t-shirt wins big - so does Free Speech

Raed Jarrer is a blogger.

Or was.

Now he is a man $330,000 richer after winning a fairly straight-forward case against the TSA and JetBlue Airlines.

The background to the story is simple. Jarrer went through security on his way to board his JetBlue flight.

Jarrar, a US resident, was apprehended as he waited to board a JetBlue
flight from New York to Oakland, California, and told to remove his shirt, which
had written on it in Arabic: "We will not be silent."

He was told other passengers felt uncomfortable because an
Arabic-inscribed T-shirt in an airport was like "wearing a T-shirt at a bank
stating, `I am a robber,'" the ACLU said.

Jarrar eventually agreed to cover his shirt with another provided by
JetBlue. He was allowed aboard but his seat was changed from the front to the
back of the aircraft.

I find the analogy to bank robbery especially fascinating. It seems to imply many different levels of ignorance and even a hint of racism. It is a good and fair ruling from the court, and I think it may actually make a difference. There is a huge problem with the TSA culture that places Arabic speakers and Muslims at the top of some sort of crazy threat list.

I completely understand where the fear comes from, but I think it's misguided. Especially with a shirt that doesn't say anything offensive, there's no need for this kind of behaviour or attiude.

[Source: The Age]

CSIS monitoring solicitor-client discussions

Canada has been up to some shady legal practices of late. The Canadian Security Intelligence Service (CSIS) has been violating what few rights terrorism suspects still have under the current justice system.

Canada instituted a national security certificate regime which, similar to the anti-terrorism legislation in other jurisdictions, allows the government to detain suspects for indefinite amounts of time without charge. As well, or at least for a while, these individuals were not able to see the full evidence against them.

Based on the result of the Omar Khadr case (2008 SCC 28), this secret evidence requirement may finally have been struck down. But that is a post for another day.

What is of note, is that evidence has been uncovered that CSIS has been monitoring communications between these detainees and their lawyers. This is an incredible breach of legal ethics and violates all known rules of solicitor-client privilege. Before people begin to say that these people shouldn't have rights because they are terrorists, it should be pointed out that the presumption of innocence still applies.

CSIS has admitted to monitoring these calls on behalf of the Canadian Border Services Agency. Absolutely ludicrous that this was done. Despite claims that the calls were only monitored as far as necessary to ensure it wouldn't breach national security, it is abusrd to include lawyers acting for their defence as, essentially, suspects.

Lawyers are meant to be officers of the court. I understand that, as individual citizens, they are as suspect as anyone and may act inappropriately. But it is a fundamental tenent of our justice system that they be trusted to discharge their duty. Besides the point, if there is some reason to suspect the lawyer there is also a process to go through to gain proper legal authority to tap their phones. The court must be involved in the process. Thankfully, the court managed to see it this way as well. Justice Layden-Stevenson issued an order that CSIS stop this monitoring and to delete their old records of taped calls.

[Source: Toronto Star]

Facebook used to serve papers

It's one of those things that sounds like a joke, I know, but Facebook was used in Australia to serve a couple with legal papers to foreclose on their house.

This isn't that strange in many ways, because the courts often have rules for service of documens where service in person is impractical or impossible. However, this is definitely the first time Facebook has been used.

This is yet another reason to make your page "private", so that only your friends can see it. Not just anyone else who wants to.

What was interesting is that the lawyer used details (date of birth, hometown etc) to establish to the court that this page belonged to the woman they were looking for. As well, her husband, the other defendant, was listed as one of her facebook friends.

It appears that Australia is a bit more lenient than most places, allowing the use of email and text messages to serve someone. Canada seems a bit more strict, but I have a distinct feeling that this is a growing trend. The increasingly digital world is going to require more and more unique methods for administering justice.

Khadr Update: His defence(s)

I've been pretty closely following the Omar Khadr debacle and things seem to be getting more and more farcical as the days go by.

There are serious problems with the fact that Khadr is being tried in front of the American military tribunals in the first place. Even President-elect Obama seems to believe that the tribunals are just absurd. They're secretive, closed, and embarassing. In fact, oftentimes the defendant is unable to know the true charges and evidence against them.

As a key example of how awful the process is and just how "fair" a trial it will be, the judge refused to allow photos key to the defence for no clear reason. Apparently, these photos showed that Khadr was under so much debris at the time of the alleged killing of an American serviceman (the main charge against him, it seems) that it would have been impossible for him to have thrown the grenade in the first place. But no one was allowed to see these photos, a decision which has been roundly condemned. So these photos were banned, yet "Interrogator 11", a nameless interrogator, was allowed to testify and claim that Khadr "admitted" to throwing the grenade. Khadr had, by the time of this admission, been held in Afghanistan and already held for a short while at Guantanamo Bay. It is not abnormal for detainees to begin to believe things that are told to them after periods of high stress like this and even falsely confess.

Perhaps the strongest effort in favour of Khadr at this point would be President-elect Obama. He's already committed to closing Guantanamo and will issue the executive order on his first day in office. Now, this may take up to a year or something, but it's a start. Since this is going to happen, it seems more likely that the Canadian government would then be able to repatriate Khadr and try him in Canadian courts.

There appears to be ample evidence against Khadr, and it may very well be that he killed this serviceman, a crime for which he should be punished if true. However, it is imperative that he receive a fair trial with the opportunity to defend himself. Commander Kuebler, his appointed lawyer, has done an admirable job to date. But his hands appear to be severely tied.

The Canadian government has been slow to react so far. The exception is Senator Romeo Dallaire, the former general and hero who did his best to save as many as possible during the Rwandan genocide, and whose vocal opposition of the UN's "do nothing" policy helped bring attention to the crisis. He has frequently called for Khadr to be brought to Canada, and has actually travelled to Washington to petition Congress for this to happen. His main point is a significant one. At the time of the alleged crime, Khadr was 15. Under all conceptions, he would be considered a 'child soldier' and should be treated as such. The Canadian justice system has laws in place designed to help rehabilitate former child soldiers. In this American military tribunal, Khadr is to be tried and sentenced as an adult.

Sadly, the Canadian Prime Minister has publicly supported the military tribunals, despite the fact that several government lawyers have expressed their concerns about it. The Toronto Star has a pretty informative report on this discrepancy.

The Globe and Mail is reporting that Khadr is likely to move out of Guantanamo soon after Obama is inaugurated tomorrow. Remarkably, some scholars are saying that because the military tribunal system is likely to be shut down, a reassessment may suggest that the case is too tainted to continue. In which case, they may try to send him back to Canada.

Prof. Forcese says he believes the new administration will review all the
current commission cases to see which can feasibly be completed, and which thrown out. Of the 250 or so detainees in Guantanamo Bay, fewer than 30 face
court proceedings.

If Mr. Khadr's case is judged unworthy of completion, it is almost certain that the United States will attempt to send the 22-year-old back to Canada. Mr. Khadr was 15 when he was captured after an Afghanistan firefight, and is accused of throwing a grenade that killed a U.S. soldier.

Prof. Forcese says it would be inconceivable for a Canadian court to try Mr. Khadr if the United States had already decided such a case could not go ahead. But Ottawa could still exert some legal effort to limit Mr. Khadr's liberties. The government could ask a judge to issue a peace bond, which would impose limits on Mr. Khadr.

12 hours till inauguration. Then the real work begins, and perhaps the rule of law will make it's way to all those "unlawful combatants" locked away in Guantanamo. Guilty or not, they deserve a fair trial and swift punishment if necessary. But this waiting needs to end.

Blagojevich is in deep trouble

I'm assuming most of you have been following the trouble Illinois Governor Rod Blagojevich has gotten himself into. Beyond the politically damaging nature of the scandal, there are also serious legal implications.

There are several questions being raised about the legality of an appointment by the embattled governor. He was arrested for allegedly trying to sell Obama's former senate seat to the highest bidder. However, he has not yet been charged.

During one of the many legal moves, the Illinois Attorney-General filed a motion to strip the governor of his powers. This move is generally reserved for moments when the Governor is incapacitated. AG Lisa Madigan tried to make the argument that the scandal was equal to a health issue, because it also rendered the Governor incapable of carrying out the duties of his office.

This motion was ultimately denied by the court. Rightfully so, the court decided these were not analagous grounds.

Now, Blagojevich has appointed Roland Burris to the seat, and this has met with all kinds of hostile moves. Senate Democrats originally wanted to try and block his appointment, saying he was "tainted" because Blagojevich is under this cloud of scandal. However, several NGOs have filed lawsuits trying to have him seated. The question is, basically, whether the appointment carries legal weight and if it is even possible for other senators to block an appointment.

The matter is complicated by political and racial motives because Burris would be the only African-American member of the senate. But, the matter remains if the appointment follows the rule of law and is therefore unblockable without it being illegal.

[Source: National Post]