Category: law

Bill 31: crosswalks

Rick Leave a comment

Julie tells me that she is addicted to the Niagara Regional Police media page. Because of her addiction, I learned of Bill 31, which amends the Ontario Traffic Act.

The changes involve pedestrian crossings and school crossings where there is a crossing guard displaying a school crossing stop sign. The change states that you now must wait until the entire intersection is empty of both pedestrians and the school crossing guard.

So if the crossing guard is escorting children across the intersection to your left, and you want to make a right turn, you must wait until the crossing guard clears the intersection before you proceed.

This change surprised me for multiple reasons. First, this change came into force in January 2016. I have heard nothing about it until last week. Even then it was courtesy of Julie! Further, there is a school very close to Julie’s house and I have encountered the crossing guards in the intersection opposite the school. I have broken these new rules multiple times without any reaction from the crossing guards. I know that crossing guards in general have no problem making sure drivers know they’re doing something wrong so I wonder if even they know if the change!

Although I am very glad to know of this change (thank you, Julie!), but I can just see it now … I’ll be waiting for the entire intersection to clear, and the driver behind me will grow impatient and start beeping, encouraging me to go because the way directly ahead is clear.

I’ve heard nothing of this change in the media, and how many people are fortunate enough to have a girlfriend to tell them of these things?!

Ghomeshi on trial

Rick 1 Comment

I’m still flummoxed about the whole Jian Ghomeshi trial. Not about the facts, but more about my feelings regarding the case and how it unfolded.

Initially, I thought the defense would be crushed. I heard interviews with some of the accusers and they sounded credible. There was enough in common with their stories to make them easily believable. Once the trial started, a number of things came out that hadn’t been mentioned in the interviews. Like the day after Ghomeshi aledgedly assaulted her, Lucy DeCoutere sent him an e-mail message that said,

I want to fuck your brains out. Tonight.1

That doesn’t sound good at all. Weeks later, she sent him flowers with a note that said, “I love your hands.” In an interview, she explained these messages,

I wasn’t even thinking about after because I didn’t think it mattered — because it shouldn’t matter. Now I understand that it matters because it measures your memory. I didn’t know my memory was on trial.2

This makes no sense to me. If you remember all the stuff that helps your case and forget everything that damages it, you think it doesn’t matter? Further, what you remember defines your experience as you tell your story in court. Of course it matters!

Is it any wonder the judge found the witnesses for the prosecution unreliable and even deceptive?

The CBC wrote of the judge:

And while he acknowledged that victims of abuse may rely on one another for support, he said the 5 000 messages exchanged between DeCoutere and another complainant sounded like they could be plotting to ruin the former broadcaster.

“While this anger and this animus may simply reflect the legitimate feelings of victims of abuse, it also raises the need for the court to proceed with caution,” he said. “Ms. DeCoutere and S.D. considered themselves to be a ‘team’ and the goal was to bring down Mr. Ghomeshi.”3

This is when the trial was over for me. I recall that there was even discussion among commentators about the possibility of collusion charges, though that didn’t happen. Regardless, when two witnesses exchange such an incredible volume of e-mail about the case and state they’re going to get Ghomeshi, the goal of the legal action is no longer to get to the truth of what happened. And as such, it really has no place in a courtroom. It was really no surprise to me that the judge found plenty of reasons to doubt the witnesses and therefore find Ghomeshi not guilty of the charges.

After the verdict, supporters of the witnesses held a rally in front of the Toronto Police headquarters. Linda Redgrave, one of the witnesses, spoke to the assembled crowd:

I’m glad it’s over, but it’s really not over. It’s now time to keep these conversations going and to stop the way that these sexual assaults are tried. It’s barbaric, it’s antiquated, it needs to change and it needs to stop.4

While I understand her emotions and anger, let’s not overstate things. What’s barbaric and antiquated is the treatment rape victims suffer in some parts of the world when not only is the victim blamed, but she’s punished by stoning or killed by family members.

Further, our justice system is balanced to make conviction difficult. I’ve heard it said many times, both in regards to this trial and more generally, that Canadian jurisprudence is set up with the thought that it’s far better to let a guilty person go free than to put an innocent person in jail. I can’t help but support this relative weighting of the required evidence. People lie and innocent people have been accused of crimes. I have no problem with the mechanics of sexual assault cases being changed to protect the victim, but the standards of evidence must remain as they are. I don’t want to live in a society where only an accusation is enough to send the accused to jail. In my opinion, that would approach barbarism.

This event also makes it clear to me that we’ve got a long way to go in terms of treating women the same way we treat men. I watched an interview with Ghomeshi’s lawyer, Marie Henein, and she stated that she’s received no end of criticism and even hate-mail about this event. The real eye-opener to me was the claim that she betrayed all women when she won Ghomeshi’s case. What does this mean? A woman, shouldn’t defend a sexual assault case? Textbook sexist. Or that Ghomeshi doesn’t deserve his day in court? Well, that would only be the case if he were guilty, which we don’t know until he has his day in court.

I recall people I know commenting about court cases in the past, saying, “Why bother with a trial? We know he/she is guilty.” That kind of talk scares me. It’s a step away from a mob hanging someone, and history shows us where that road leads. Those deciding these cases need to leave emotion at the courthouse door.

  1. Sarah Boesveld, “Exclusive: Lucy DeCoutere on the Ghomeshi disaster,” Chatelaine.
  2. ibid
  3. CBC News, “Jian Ghomeshi trial’s not guilty decision triggers outrage, march to police headquarters,” CBC News.
  4. ibid

Upsetting the balance

Rick 2 Comments

Copyright protection is an artificial construct. Without copyright, new artistic creations would enter the public domain and become part of our culture as soon as artists release their works. With copyright protection, the government allows artists to enjoy exclusive control of their creations for a set period to encourage their creativity. Then, when the copyright period on their work expires, it enters the public domain so anyone can build upon it to enrich our culture. You can look at it as a compromise. The public is not allowed to take full advantage of new creations to encourage artists to create more. It’s good for both the artists and the public, as long as it maintains a balance between the interested parties.

In the past, copyright has worked differently than it does now. Under the Copyright Act of 1842, copyright protection lasted for the life of the creator plus 7 years, or 42 years from publication (whichever was greater). The Copyright Act 1842 was a British law which affected Canada, since Canada was a British colony at the time. After Confederation, Canada enacted its own copyright regulation, the Copyright Act of 1875, which change the period of protection to an initial term of 28 years, with option to renew for another 14 years.

Today, things are quite different. The terms of copyright protection depend on the artistic work. For example, if you write a song, copyright will protect the song for the length of your life, plus 50 years. If you record the song and release it, the recording, until very recently, would enjoy copyright protection for 50 years from the recording date. Why the song itself and a recording of the song have different terms, I don’t know. In once sense, it doesn’t matter because while the recording is protected for only 50 years, the recording is merely one performance of the song, and the song is protected for the artist’s life, plus 50 years. Once the first 50 years expires, the recording falls into the public domain, but the song (the composition itself) is still protected.

Earlier I said that until recently, a recording enjoys copyright protection for 50 years. This is because in the latest federal budget, the Conservative government extended copyright protection on recorded works from 50 years to 70 years. Certainly copyright issues are not at all related to the budget, but this government is absolutely in love with omnibus bills, in which they include all sorts of unrelated items in the hopes that comparatively unimportant, but unpalatable items, are accepted because of the higher profile, more desirable items in the bill. This is why a copyright extension appears in a budget.

But honestly, does a 70-year term of copyright protection really serve the balance for which copyright was created? I’d suggest that it does not. To encourage the creation of artistic works, copyright protection must expire so the artist is encouraged to create new items. It’s not hard to imagine that the bulk of most artists’ creative output occurs after they are 20 years old. Most people don’t live until the age of 90, so a 70 year protection is effectively life-long. If the artist hits it big and has enough money to live on, they need not create anything ever again. This does not at all serve the public.

The first copyright protection in the United States had a term of only 14 years, with a 7 year renewal being an option. Now that would certainly encourage an artist to keep creating new works!

Of course the elephants in the room are the record companies. They’re the ones who want the longest term possible, because they hold the copyright on the artist’s work. Handing them ownership of the copyright is a term of the record contract. For all their belly aching about how the artist needs protection, it’s really their own interested they serve. This clear when you consider the terms of a record deal. The record companies to everything they can to make sure the artist makes as little as possible.

Prime Minister Stephen Harper. He is always ready to help out a business pal.

So here we have a government who extended the copyright term on recorded works. No one saw this coming. There was no public consultation, no debate, and not even any notification that this was being considered. Yet as soon as the government released the budget, literally minutes later, Music Canada (representing Sony, Warner, and Universal Music) posted a press release stating how pleased they were at this announcement. Further, Prime Minister Stephen Harper wrote to Music Canada President Graham Henderson stating that he felt a 50 year copyright term wasn’t sufficient to protect artists, so it would be extended to 70 years. The letter was dated April 11, 2015, the same day the government tabled the budget. All the big U.S. labels had to do is write a letter and ask for the copyright term extension and the Prime Minister fell all over himself in compliance. I’ve written the Prime Minister several times and I can assure you that I’ve yet to even receive a reply, much less get what I want.

In the balance between the artists who create the music and the public who buys and enjoys it, who does the Harper government reward so richly? Neither of course. They shower favour upon the foreign companies who do their absolute best to screw both the artists and the public.

This is the Harper government, at its finest.

The SCoC, and then more

Rick Leave a comment

The week before last, on June 13, the Supreme Court of Canada handed down a ruling that took me completely by surprise.

The case involved Matthew David Spencer. Police saw him downloading child pornography, though they didn’t know it was him. All they knew was the IP address from which the files were downloaded. They traced the address and went to the ISP to whom it belonged and did what they’ve done so many times in recent years. They simply asked the ISP for the name and the street address of the person who was using the IP address when they saw the child pornography being downloaded. No harm, right? The police simply asked, to save time. If the ISP refused, they’d go through channels to get a warrant. If the ISP co-operated, they’d save the time and trouble of getting a warrant.

The ISP did co-operate without a warrant, and as a consequence, police arrested Spencer and the court convicted him. The ISP’s simply handing over his name and address didn’t sit well with him so Spencer appealed his judgement. The Saskatchewan Court of Appeal affirmed his conviction stating that there is no reasonable expectation of privacy for basic subscriber information. Spencer took it to the Supreme Court of Canada and they ruled unanimously in his favour, which has enormous implications for all of us. I have no doubt that Spencer is disappointed because the Court let his conviction stand, stating that the police acted in good faith, and justice would not be served if they reversed the decision.

According to Michael Geist’s post, “Supreme Court Delivers Huge Victory for Internet Privacy & Blows Away Gov’t Plans for Reform,” the Court stated,

in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.

The point being that a police search without a warrant is a definite no-no, and one does have a reasonable expectation of anonymity going about their business on the Internet. Because that expectation is entirely short-circuited by an ISP connecting an IP address with a user on request, police require a warrant. This flies in the face of what law enforcement and the Conservative government have been telling us. They’ve stated that subscriber information is not in any way private, and therefore should be available on request, if the ISP co-operates.

The timing of this Supreme Court decision is fortuitous. Not only has the Conservative government been telling us that police should have easy access to this information, but they have two bills they seem desperate to see made laws: Bill C-13, which is intended to crack down on cyberbullying, and Bill S-4, to be known as the digital privacy act. In particular, bill C-13 would make it legal for companies to release customer information to police or government representatives simply for the asking, and protect those companies from any legal reprisal. Clearly, the Supreme Court decision states this is unconstitutional.

So given that their two bills are in a shambles, what does the Government plan to do? They seem to plan to ignore the Supreme Court’s decision. Minister of Justice, Peter MacKay, said,

The Supreme Court’s decision actually confirms what the government has said all along, that Bill C-13’s proposals regarding voluntary disclosures do not provide legal authority for access to information without a warrant.

Yet bill c-13 states,

487.0195 (1) For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.

(2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.

It is true that ‘the person’ in question here is under no legal obligation to provide the information, but this is certainly splitting hairs. Telecom companies currently do provide this information on a vast scale. Legislating that they are able to do so without liability will only encourage them to do so more freely. And further, the current law states that this information may be requested by a

peace officer or public officer enforcing or administering this or any other Act of Parliament

In other words, police may request this type of information for the benefit of a police investigation of violation of the Criminal Code or any other federal law. Bill C-13 removes this stipulation entirely.

The government is wasting their time and your money by pushing ahead with legislation that will, if passed, be struck down the first time it is challenged on constitutional grounds. Why? I really don’t know. Certainly Prime Minister Harper is accustomed to getting his way, and he doesn’t react well when he is denied. Make no mistake, in this case, he will be denied.

The Supreme Court is not the only dissenting voice. Earlier this week, Forum Research released the results of a poll detailing how Canadians feel about Bill C-13. According to Techvibes,

The poll shows that 73% of Canadians oppose C-13, with just 15% approving a ratio of nearly 5 to 1.

and,

opposition spans every age group and is strongest among 18-34 year olds (78%) and 55-64 year olds (74%).

Harper will find no support among his own, either. Openmedia.ca reports,

Notably, the poll reveals that just 24% of Conservative voters support the bill, with 62% opposing it.

It’s time for the Conservatives to put these two bills to bed. They’re past being stubborn about it, having clearly shown that whatever agenda they’re working on has nothing to do with protecting Canadians.

Don’t spy on me

Rick Leave a comment

February 11 was The Day We Fight Back against mass surveilance. Conceived in the U.S. to focus the protest against NSA surveillance of U.S. citizens, Open Media Canada adopted the occasion to protest the same type of mass surveillance carried out by the Communications Security Establishment (CSE) against Canadian citizens. I happily took advantage of the day to tell my MP how I feel. Coincidentally, he’s also the Minister responsible for the CSE.

From: Rick Pali [rpali@alienshore.com]
Sent: February 11, 2014 1:28 PM
To: rob.nicholson.a1@parl.gc.ca
Subject: We don’t want to be spied upon!

Today is #TheDayWeFightBack and I want to state in the strongest terms that law-abiding Canadians do not want their own government spying on them. Whether my calls, e-mail, web-traffic, or my meta-data, it’s not the government’s business unless a judge says otherwise.

And it’s doubly insulting that we have to pay for it.

Stop spying on us.

I was surprised when a reply arrived. It’s not the type of message for which I would expect a reply. I was less surprised that the reply arrived three weeks after I’d written. At this rate, the next time I write and receive a reply, it’ll be months in coming. Anyway, here’s what I got:

From: <dnd_mdn@forces.gc.ca>
Subject: RE: We don’t want to be spied upon!
Date: March 5, 2014 at 3:22:26 PM EST
To: <rpali@alienshore.com>

Dear Mr. Pali:

As the Minister responsible for the Communications Security Establishment (CSE), I want to thank you for sharing your concerns about privacy issues.

CSE’s role is to collect foreign intelligence to protect Canada and Canadians from threats at home and around the world. CSE is also responsible for protecting government computer networks and systems, as well as the information that they contain.

In fulfilling these roles, CSE considers respecting the privacy of Canadians to be its most important principle. I can assure you that all of CSE’s activities are conducted in full compliance with Canadian law. This includes the National Defence Act, the Privacy Act, the Charter of

Rights and Freedoms, and the Criminal Code. Under the law, CSE does not target the communications of Canadians anywhere or of any person in Canada through its foreign intelligence activities.

The independent CSE Commissioner, a supernumerary judge, reviews CSE activities to ensure that they comply with the law. The Commissioner and his staff have full access to CSE facilities, staff, and records. The Commissioner has never found CSE to have acted unlawfully. In fact, he has specifically noted CSE’s culture of lawful compliance and genuine concern for protecting the privacy of Canadians.

I trust that this information is helpful, and thank you again for writing.

Yours truly,
Hon. Rob Nicholson, PC, QC, MP
Minister of National Defence

Given all that we’ve learned about the CSE’s activities, this is no real reply. Further, the minister’s assistant entirely missed my point. I thought I’d better clarify.

From: Rick Pali <rpali@alienshore.com>
To: dnd_mdn@forces.gc.ca
Date: March 9, 2014 at 11:08:08 PM EDT
Subject: Re: We don’t want to be spied upon!

Mr. Nicholson,

Thank you for your reply.

> As the Minister responsible for the Communications Security Establishment (CSE)

I know who you are. You’re also my MP.

> In fulfilling these roles, CSE considers respecting the privacy of
> Canadians to be its most important principle. I can assure you that all
> of CSE’s activities are conducted in full compliance with Canadian law.

I find all of this hard to believe, especially considering that the Canadians you mention have no idea what the CSE does. Of course we have broad overviews and no end of assurances, but I feel less than assured. It could be true, but as I said, I’m far from convinced.

I’m not sure you really understood my intent in writing you when I said that Canadians don’t want to be spied upon by their own government. I understand that the CSE doesn’t listen to my phone calls, but you’ve said that harvesting metadata is legal, so whenever I make a call, the CSE knows who I am, who I am calling, how long we speak, and even where I am during the call. Legal or not, I call this spying. I suspect most Canadians feel the same way.

Given how you’ve gone out of your way to use very specific wording, I’m forced to be very careful in my understanding. I wouldn’t be surprised to learn that a computer translates what I say during my calls to text, so no person at the CSE is listening to my call.

Here’s another example:
> Under the law, CSE does not target the communications of
> Canadians anywhere or of any person in Canada through
> its foreign intelligence activities.

So the CSE doesn’t target Canadians. Got it. But if the CSE taps into an Internet trunk and records everything, they’re not targeting Canadians, are they? Yet the CSE still has a record of everything I do on the Internet. If you think I’m being paranoid, you have yourself to thank. As the CSE’s activities came to light, I paid close attention to your statements. As more information continued to surface, I could clearly see that most of what you stated was literally true when parsing your statements with their strictly literal meanings. But in many of those instances, the spirit of what you said was absolutely not true. That kind of sophistry will earn you nothing but skepticism once it’s discovered. And make no mistake, it’s been discovered.

Perhaps the CSE is acting in an entirely lawful manner. It could be true. But is that really where you want to set the bar? Why not do what’s right instead of what’s merely legal?

Know what I mean? And it deeply saddens me that I have to ask if you understand.

Will it make any difference? Unlikely. Will the minister even see my message? Even more unlikely.

I still feel that I need to make the effort, if only to let them know they’re not fooling us.