C-28: How the anti-spam bill may effect your business

David Canton of Harrison Pensa is a lawyer specializing in electronic law. He recently wrote an article for the London Free Press (and also found on his blog) where he brings our attention to some potential problems that businesses large and small will face under the new laws aimed at reducing spam:

The anti-spam bill was recently passed [David Sanders: Bill C-28 is here in Bill form, and the final version is here on the federal e-law site), and here is a one-page HTML version on Canlii], and will be in force this year. It gives new tools to fight spam, but unfortunately defines spam so broadly that it will affect how most organizations conduct business.

Businesses can’t just ignore the legislation. Remedies include fines of up to $1 million for individuals, $10 million for others […]

An e-mail to just one person you met at an event who you consider a potential customer may be considered spam [and] “electronic message” is broadly defined […]

Messages will not be considered spam if the recipient has consented to receiving the message. But it is up to the sender to show the recipient has consented if there is a complaint [...]"

and what constitutes "consent" is a complicated thing. David Canton strongly recommends that all businesses and charities review the consent provisions to determine if their electronic communication policies need to change.

The Act also links consent to purpose:

since my e-mail address is published on my firm’s website and other places, you may be able to e-mail me with anything relevant to the practice of law — but you won’t be able to e-mail me trying to sell me a trip. If I hand you my business card, the same applies.

Canton correctly notes that -- as with many pieces of legislation -- the devil will be in the details of the regulations that the legislature and bureaucracy will create to implement and enforce this Act, and those regulations haven't been published yet.

To keep tabs on e-law issues, keep an eye on David Canton’s blog on the topic.

HST and Nonprofits

"GST/HST Information for Non-Profit Organizations"

Canada Revenue information circular RC4081(E) Rev. 09.

Some thoughts on things creeping north 2

"The Real Interrobang", a London blogger, has a keen eye for apt quotes. As you will recall a quoted comment on American policing prompted a blog post here last week. I stumbled across another today which continued that "I'm glad our police aren't like that! thought:

In my experience, serious commercial plane crashes are generally the result of a chain of very minor factors that align sufficiently to result in an accident. The apologies an compensation for the victims is certainly the decent thing to do, but the more telling difference here is that there is an enormous effort made by the airline, manufacturers and government to determine what caused the crash, and (often very expensive) remedial steps to prevent that problem from ever happening again. If police departments took this approach whenever they screw up and cause injury or death to innocent people, I would find it a lot easier to cut them some slack. I'm thinking that a good analogy here is the difference between private and commercial aviation. The accident rates for commercial carriers are so low that they are almost statistically insignificant, and are still trending down. The accident rates for general aviation (that is, amateur pilots like me) have been pretty static for many years. The sad thing is that the private pilots still regularly kill themselves because of rookie mistakes like failing to properly preflight an aircraft, or stalling and spinning from a low altitude. These would be analogous to the kinds of mistakes we're seeing the police make on these raids. In my opinion, law enforcement agencies in North America are still acting like amateurs despite the years of experience they should have amassed by now. If they took an approach that was more like commercial aviation, we would all be a lot safer, and probably more likely to trust police officers we interact with day to day.
"GXT, Dispatches from the Culture Wars, comments".

I honestly don't think that the "North American" descriptor is fair, simply because Canadian police forces are, in the main, still far superior to their American counterparts in their handling of the citizenry and in their respect for the law and proper process. No doubt my colleagues in the criminal bar might have some cutting things to say about some forces or invidudal police (and it is, for example, difficult to ignore the shocking institutional failings in the RCMP, problems which which seem to be ongoing) but the fact remains that we have a better chance of retaining excellent policing if we also note the many things they do right; I don't accept the notion that treating them as if they were indistinguishable from their oft deeply troubling and increasingly authoritarian American counterparts is at all productive or just.

Some thoughts on things creeping north

I personally have a fairly high opinion of Canadian police in general. They are, taken as a breed, far more sensible, far less violent, far less paranoid and certainly far less hostile to the citizenry than their American counterparts who in many, many instances have spent the better part of the last three decades sliding downhill in their regard for the law or obedience to any limits on their authority.

I ponder this issue because when one looks south one sees the increasing use of the Taser to ensure "compliance". This is disturbingly often not about a response to someone genuinely resisting lawful arrest or being a threat to public or personal safety but more to do with not kowtowing rapidly or obsequiously enough to the officer's authority, whether or not the exercise of that authority is right or wrong, lawful or unlawful, rational or arbitrary. One commenter has noted,

I’m sure that [the Taser] makes the cops’ jobs easier and safer for themselves if they Tase more people instead of wrestling them to the ground; I don’t care. ... The police do not have a right to a completely submissive citizenry and they should be prevented from trying to create one.

-- Scarshapedstar, “Today in Tasering: And the Beat Goes On,” Correntewire, quoted at "You Still Can't Do That On Slashdot", "The Real Interrobang", August 11, 2008

That's the key, isn't it? A citizen should be compliant with the law, not necessarily with police authority. The latter is in service to the former, not synonymous with it and certainly not the determinant of it. Indeed, one of the hallmarks and safeguards of a truly free and just society is the ability of a citizen to stand up to an officer when the officer is wrong or breaking the law.

When officers feel that they have a right to Taser somebody who is problematic -- as in the Robert Dziekański case, where four trained, fit, young and armoured RCMP officers Tasered and killed one middle aged man -- as opposed to a genuine threat then we have a disturbing Americanization of our police methods of problem-solving. [Note: I'm forty-four and of about the same height, weight and build as Mr. Dziekański was. It will be a sad, sad day for policing when it takes more than one or two unarmed officers to subdue me or somebody like me, so much so that the use of four officers was ludicrous and the use of Tasers was monstrous.]

Police work is often dangerous, but so is giving men guns, Tasers and body armour and sending them out amongst their fellow citizens. The key to a democratic society is the balancing of our need for safety and policing with our need to be free citizens. For the most part we've balanced that in Canada, thanks in great deal to the good sense of the individual coppers involved. I'd hate to see that go. I like the Americans fine, but I don't want their society and I certainly don't want their policing problems and, frankly, I don't think that any sane person does.

GAAR

Every now and again an acronym is also onomatopoetic, and I would think that "GAAR" qualifies. The acronym means the "General Anti-Avoidance Rule" and the onomatopoeia comes with the noise made by a taxpayer who has had a tax plan disallowed by the Canada Revenue Agency [CRA] under the GAAR despite the plan's technical compliance with the tax laws.

What is the GAAR, according to the CRA?

The GAAR is really just Part XVI "Tax Avoidance" of Canadian Income Tax Act, (ss. 245 and 246).

In that Part the government creates the concept of an "avoidance transaction", which it defines as "a single transaction or one that is a part of a series of transactions where the single transaction or the series results directly or indirectly in a tax benefit, unless the transaction is carried out primarily for bona fide purposes other than to obtain the tax benefit". (CRA IC88-2, "General Anti-Avoidance Rule - Section 245 of the I.T.", an information circular "to provide guidance with respect to the application of the general anti-avoidance rule". )

What exactly is the GAAR, in non-legalese?

The best description I've ever seen is that provided by Osgoode Hall Law Student Mr. Ankur Bhatt:

A fundamental tenet of Canadian tax law...is that a taxpayer is entitled to make any lawful arrangement that he or she sees fit in order to reduce his or her liability to tax. The General Anti-Avoidance Rule (”GAAR”), at s. 245 of Canada’s Income Tax Act, has greatly confused this once-clear principle. While “tax evasion” is the general term for efforts to not pay taxes by illegal means, what is known as “tax avoidance” is the otherwise not illegal navigation of the tax regime to reduce tax payable. The GAAR, as its name would suggest, stands as a general damper on the latter. The rule entails that, even if one follows to the letter the (other) rules as laid out, the government may feel fit to disregard such compliance and levy the tax that it deems would otherwise have been payable had such (other) rules not been taken advantage of. Specifically, the benefit of a tax avoidance transaction may be denied if, pursuant to s. 245(4), the transaction constitutes a “misuse” or “abuse” of the tax-related provisions it utilized.

Noted tax law scholar Vern Krishna related the gist of general anti-avoidance legislation at a recent lecture competition:

The law allows you to do something. You do it according to the law, and take advantage of the law, and then somebody says, “No… that was not very nice. You went too far.” And you say, “How far is ‘too far’?” And [they] say, “Well, we’ll tell you when we find out.” (Laughter.) But you say, “I need to know, because I need to plan in advance!” And they say, “No, you’ll find out in the fullness of time.” (Laughter.)

Thus, general fairness concerns of uncertainty, unpredictability, and retroactivity arise. Furthermore, having to do with but a property interest, general anti-avoidance legislation is not subject to Charter scrutiny under s. 7. As expected, the courts are left to divine the meaning of “misuse” and “abuse” under s. 245(4), demarcating the line between valid and non-valid arrangements of financial affairs.

[The quote is from "Copthorne Holdings: “Series of transactions” under the GAAR", "The Court", Osgoode Hall Law School, February 2nd, 2010. The "s.7" reference is to Section 7 of the Charter of Rights and Freedoms, which states: "7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".]

A problem: two not-in-sync SCC cases

The Supreme Court of Canada is there, amongst other reasons, to clarify the law. Unfortunately it has done rather the opposite on the GAAR.

In 2005 the Court, (in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601) "effectively sanctioned the well-worn practice of tax avoidance, saying transactions structured to minimize what is owed to Caesar, as it were, don't per se constitute a breach of the law" ["General Anti Avoidance Rule - GAAR - CRA Loses Catch-All Case", Wednesday, October 26, 2005 from The Globe and Mail, reprinted at "Canada Offshore"], permitting "aggressive" tax planning. (Truth be told, such complex plans are rarely available to small businesses, who even more rarely have the time, volume of gross income, or piles of cash to hire the platoons of hyper-specialist tax accountants and lawyers necessary to even come up with the avoidance schemes.)

In 2009, however (in Lipson v. Canada, 2009 SCC 1, [2009] 1 S.C.R. 3) "the Supremes" (as they are often cheekily known) stood for instead of against application of the GAAR: "The approach to determining whether a transaction resulted in a misuse and an abuse for the purposes of s. 245(4) of the Act required the court to first interpret the provisions at issue to determine their essential object, spirit and purpose. The second step in the s. 245(4) analysis was to determine whether the avoidance transaction frustrated the object, spirit or purpose of the provisions. Where a tax benefit resulted from a series of transactions, any individual transaction became relevant in ascertaining whether it gave rise to an abuse of the provisions of the Act. The GAAR applied even where abuse was an indirect result of a transaction. Thus, a court had to refer to the `overall result' of the transactions, rather than the `overall purpose', which may incorrectly imply that the taxpayer's motivation or the purpose of the transaction was determinative."

There are two things of interest to me in the Lipson decision.

First, the decision was an odd and narrow (4-2-1) split decision with a short bench of seven, made without the benefit of the Chief Justice MacLachlan, who is arguably the Court's best tax specialist: please see "Supreme Court Hands CRA Biggest Ever GAAR Victory In A Cliff-Hanger", (19 January 2009, Article by William I. Innes, Chia-yi Chua and Carman R. McNary, Fraser, Milner, Casgrain, LLP) for further details and commentary.

Second and worse: unlike the Canada Trustco case, Lipson was an "aggressive" tax plan that was created by ordinary taxpayers: a taxpayer and his wife who structured a loan transation for a family residence using financing arranged around the purchase of shares in a family corporation; the share loan was $562,500 and the mortgage was $562,500. (Please see the Lexis-Nexis/Quicklaw Digest for the Lipson case to obtain a useful summary. The explanatory quotation above is from that Digest.) Canada Trustco, by contrast, was a "complex sale-leaseback transaction" of high value and potentially wide application. I can't shake the concern that one judicial standard is being applied to rich corporate taxpayers while a more rigid and demanding one is being applied to ordinary people. What will be of interest will be to see whether the harsher Lipson standard will be applied to future corporate tax arrangements such as the one found in Canada Trustco; if it is then the class bias concern will be negated. What will also be worth following is whether or not the law will alter course for a third time: it is possible that the SCC will accept a GAAR case to clarify any uncertainty.

Until the matter is clarified, however, I will be wary of an American-style tax standard where the tax avoidance tune is okay if done with complex scores played by expensive orchestration, and impermissible if done in simple chords.

What can you do to avoid a problem?

If you are engaged in aggressive tax planning, one option is to go to the CRA, where "Revenue Canada, Taxation will issue advance rulings with respect to the application of the general anti-avoidance rule to proposed transactions and will publish summaries of the facts and rulings in those cases that will provide further guidance where the rulings themselves are not published. In order to ensure that the rule is applied in a consistent manner, proposed assessments involving the rule will be reviewed by Revenue Canada, Taxation Head Office." One should, however, consult with a tax law and accounting specialists to ensure that (a) the proposed tax arrangement meets the laws as they stand, and (b) whether it is prudent to obtain a predetermination at all.


Further reading:

"Anti-Avoidance Provisions, Including GAAR" - CA School of Business

"The Year in GAAR", Fasken Martineau Taxation Group presentation by Alan Schwartz and Louis Tasse

Separation Agreements: Full Disclosure and Fair Dealing

The Supreme Court of Canada in Rick v. Brandsema has recently clarified the law regarding what is and isn't fair in the negotiation and contents of a separation agreement.

The SCC headnote found at Canlii gives an excellent summary (the numbers in square brackets being the relevant paragraph of the SCC judgment; the hyperlinks are by the author of this blog):

The parties married in 1973 and separated in 2000. During their 29 years together, they had five children and acquired a dairy farm in which they were equal shareholders, as well as other real property, vehicles and RRSPs. The parties were intermittently represented by lawyers and also used the services of mediators during their negotiation of a separation agreement. Approximately a year after their divorce, the wife sought to set aside the agreement on the grounds of unconscionability or, in the alternative, a reapportionment order under s. 65 of British Columbia’s Family Relations Act.

The trial judge found that the agreement was unconscionable because the husband had exploited the wife’s mental instability during negotiations and had deliberately concealed or under‑valued assets. This resulted in the wife receiving significantly less than her entitlement under the Act, despite the fact that it was the parties’ express intention to divide their assets equally. As a result, the trial judge made an order awarding the wife an amount representing the difference between the negotiated equalization payment and the amount she was entitled to under the Act. The Court of Appeal disagreed with the trial judge’s conclusions about the extent of the wife’s vulnerabilities and concluded that, in any event, they were effectively compensated for by the availability of counsel. [The wife appealed that BCCA decision to the Supreme Court of Canada and won.]

[...]
The singularly emotional environment that follows the disintegration of a spousal relationship means that the negotiation of separation agreements takes place in a uniquely difficult and vulnerable context. Special care must therefore be taken to ensure that the assets of the former relationship are distributed through a process that is, to the extent possible, free from informational and psychological exploitation. Where exploitation results in an agreement that deviates substantially from the objectives of the governing legislation, the resulting agreement may be found to be unconscionable and, as a result, unenforceable. [1] [44] [47]

While parties are generally free to decide for themselves what bargain they are prepared to make, decisions about what constitutes an acceptable settlement can only authoritatively be made if both parties come to the negotiating table with the information they need to consider what concessions to accept or offer. This requires that there be a duty on separating spouses to provide full and honest disclosure of all relevant financial information in order to help protect the integrity of the negotiating process. This duty not only anchors the ability of separating spouses to genuinely decide for themselves what constitutes an acceptable bargain, it helps ensure the finality of agreements. An agreement negotiated with full and honest disclosure and without exploitative tactics will likely survive judicial scrutiny. [45‑49]

Whether defective disclosure will justify judicial intervention, however, will depend on the circumstances of each case, including the extent of the misinformation and the degree to which it may have been deliberately generated. [49]

There is no reason to disturb the trial judge’s conclusion that the separation agreement was unconscionable. His findings about the husband’s defective disclosure and exploitation of his wife’s known mental vulnerabilities, support the conclusion. Although in some cases professional assistance will effectively compensate for vulnerabilities, in this case the trial judge concluded that the wife’s mental instability left her unable to make use of such assistance. [2] [6] [27-28] [31] [36] [58‑60] [62]

The husband’s failure to make full and honest disclosure, his knowledge that the negotiations were based on erroneous financial information, as well as his exploitation of what he knew to be his wife’s profound mental instability, resulted in a negotiated equalization payment that was $649,680 less than the wife’s entitlement under the Family Relations Act. In these circumstances, the trial judge was entitled to award this amount to compensate the wife for the loss caused by the unconscionable bargain. [6] [27-28] [31] [53] [63] [69]

The Canadian Centre for Policy Alternatives Weighs looks at the HST

The Canadian Centre for Policy Alternatives is "an independent, non-partisan research institute concerned with issues of social, economic environmental justice. Founded in 1980, the CCPA is one of Canada’s leading progressive voices in public policy debates".

CCPA recently examined the recently-approved Harmonized Sales Tax (HST)and concludes that the "majority of Ontarians won’t be worse off when the [HST] is implemented. Not A Tax Grab After All: A Second Look at Ontario’s HST examines the Ontario government’s HST plan and finds it's virtually revenue neutral when viewed as part of a total tax package that includes increased sales and property tax credits and a significant decrease in personal income tax rates".

To read CCPA's full paper in PDF format you can right-click and download it from here.

Other Camberwell House posts with further information on the HST:
"The HST and you"
"HST Transitional Rules"

Varying a custody access order: When you can and when you can't

Is there a situation where parties are blocked from seeking variation of a custody or access order? Yes. Elizabeth Ramsden in LAO LAW’s The Bottom Line: A weekly summary of new cases in family law (November 11, 2009) summarizes this issue:

Even where both parties request a variation of a custody or access order, the court is without jurisdiction to vary the order unless it makes an explicit finding of a material change in circumstances since the previous order was made. A material change is one that:
(1) amounts to a change in the condition, means, needs or circumstances of the child and/or the parents’ ability to meet the child’s needs;
(2) materially affects the child; and
(3) was either not foreseen or could not have been reasonably contemplated by the judge who made the original order.
If an applicant fails to meet this threshold requirement, the inquiry can go no further: Persaud v. Garcia-Persaud, 2009 ONCA 782 (Laskin, Gillese and Juriansz JJ.A.), ¶ 4, [citing see Gordon v. Goertz, [1996] 2 S.C.R. 27, at ¶ 13 and Litman v. Sherman (2008), 52 R.F.L. (6th) 239 (Ont. C.A.)].

As the Court of Appeal noted, "[t]he matter is jurisdictional and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation." [Emphasis added.]

The Court went on to note that where there is “significant conflict in the affidavit evidence of the parties … a variation motion cannot be properly determined on affidavit material. … [R]esolution of conflicting evidence on critical matters requires a trial of the issues, in which viva voce evidence is called. See this court’s decision in Schnarr v. Schnarr (2006), 22 R.F.L. (6th) 52”.

HST Transitional Rules

"The 2009 Ontario Budget proposed a comprehensive package of tax changes. Central to this tax package is the proposed Harmonized Sales Tax for Ontario (HST), which, subject to legislative approval, would come into effect on July 1, 2010.

"This Notice provides details of proposed measures that would build on Ontario’s comprehensive tax package and help consumers and businesses transition to the HST.

"The Notice provides general descriptions of transitional rules for the HST that will be proposed to be enacted in the federal Excise Tax Act (ETA). It also provides general descriptions of provincial measures that will be proposed to be enacted to wind down the applicable provisions of the Ontario Retail Sales Tax Act (RSTA)."

For further information please see the Ontario Ministry of Revenue page on the HST at:
http://www.rev.gov.on.ca/en/taxchange/index.html

This PDF is available for download here.

HST Transitional Rules

The HST and you

I recently attended a seminar on the new HST at this year's Bridges to Better Business event. The talk, given by a cheerful and helpful Mr. Jeremy Bertrand of the Ontario Ministry of Revenue, was very valuable, hitting many of the key questions we have about the new harmonized sales tax which is replacing the old provincial sale tax (PST).

Mr. Bertrand was kind enough to send me a PDF of his PowerPoint presentation ... and you can download it by right-clicking here.

I will be posting on some key points from that presentation later in this week.

For those of you who would prefer to read it online, here is the same presentation uploaded to ScribD. My thanks go to Mr. Jeremy Bertrand for the Ministry's permission to upload this to the Camberwell House site in furtherance of their goal of educating businesses about the new tax.

Ontario Min Rev HST FINAL 2009 09-Dms

LawPro Warning to lawyers re equipment loan fraud

LawPro tells the profession:

Our LAWPRO E-News mailing last week prompted several calls from
Ontario lawyers. From information we have gathered, it seems
clear to us that there is an organized scheme underway to
defraud Ontario lawyers using matters involving small business
equipment loans. These matters all share the same basic timeline
and circumstances, and in some cases, the same purported
individuals or entities (a lender from Halifax).

In all cases, about one month ago a previously unknown client
retained the lawyer to do an incorporation. The client presented
realistic looking photo ID (a newer Ontario driver licence). The
client paid in full for the incorporation.

In the last week the client returned to the firm asking the
lawyer to act on an equipment purchase loan matter. Loan amounts
are approximately $350,000 and the loan is to come from a
Halifax-based lender (there is someone answering the phone for
the lender - we suspect the fraudster or an accomplice). The
client is pushing to have the loan completed as quickly as
possible. The loan proceeds are to go to a third-party
corporation (not the client's new corporation).

There are clear badges of fraud in the above scenario. The
lawyers' suspicions were also raised for one or more of the
following reasons: the client and corporate addresses were the
same; it is unusual for a brand new corporation with no apparent
purpose to get a loan in this amount; the only security for the
loan was a promissory note or GSA; the client had only a cell
number or the home phone number given was not working, and the
address on the driver's licence is not a real one.

Over the past year, almost twenty of these types of fraud
schemes were reported to LAWPRO during the various holiday/long
weekend times. Please be wary if you are handling a matter that
appears the same or is similar to the ones described above.
Clearly there appears to be an organized fraud scheme targeting
Ontario lawyers. We encourage lawyers and their staff to be
extra careful in the next few weeks. Remember that these are
very sophisticated frauds. The letters and other documents
provided by the client and the certified cheques or money orders
received from the lender will look legitimate - but turn out to
be counterfeit. Cross-checks and searches on the names,
addresses, serial numbers or other information in the
documentation provided will prove to be false.

Please read LAWPRO's new Fraud Fact Sheet at
http://www.practicepro.ca/practice/pdf/FraudInfoSheet.pdf to
learn more about the red flags to look out for. Or see the
practicePRO Fraud page http://www.practicepro.ca/fraud for
information on fraud and how to avoid it.

Drug Decriminalization Policy Forum - 2nd Follow-up

In a follow up to this post, and this followup to that post, American civil liberties writer Glenn Greenwald is interviewed by Reason.tv, an American libertarian website:

Quebec's insurers will have to be more specific and do so earlier.

The Quebec Court of Appeal has come down with an interesting decision in Lombard Canada Ltd. v. Ezeflow Inc., (decision in French only).

Ezeflow is a manufacturer of pipes for oil-drilling platforms and Lombard was its general commercial liability insurance provider. Flaws showed up in some installed Ezeflow pipes and that company made a claim on its insurance. Lombard refused on four grounds and later relied on another clause in the insurance agreement. The matter went to trial, Ezeflow won at trial and Lombard took the matter to the Court of Appeal, where the appeal was upheld. However it noted that Lombard could not use an exclusion which was not used as a reason for denial at the outset of the action. As Kelly Harris notes [infra], "Quebec courts do not recognize the doctrine of estoppel [fn1], which prevents new defences from being introduced once a case has begun." Jean-Charles René of Ogilvy, Renault notes,

In Quebec, the courts have refused to apply the doctrine of estoppel, but have recognized a similar concept in civil law, the "fin de non-recevoir" which bars an insurer from adding to its reasons for denial of coverage on the basis that it is deemed to have waived the right to do so. According to the case law, such a waiver does not need to have been expressly stated in writing, but may be tacit, provided it is unequivocal, i.e., there is no doubt as to the insurer's intention to waive a clause in the policy. Some writers have observed that it is harder to prove a "fin de non-recevoir" than to prove estoppel because the civil law concept requires proof that, by its representations, the insurer indicated its intention to modify its rights.

Ezeflow has now ended the insurers' practice of reserving a right to bring up any clause later on; they must now commit at the outset of the action. M. René:

[I]nsureds would be well advised to require their insurer to state its position precisely as soon as it is apprised of a situation that could trigger a claim, thereby forcing the insurer, so to speak, "to make its bed and lie in it".

Footnotes:

fn1 - Quebec is the only province which does not use a "common law" system (like that of England or America) for the resolution of non-criminal disputes; it uses a "civil law" system more akin to European models.]

Further Reading

The entry above is only a cursory examination of the case. I strongly recommend that any interested reader read these articles:

“Quebec Court Of Appeal Weighs In On Scope Of Coverage Under Cgl Policy For Costs Of Removing Insured’s Defective Products”. Nicholl Paskell-Mede, Lawyers.

“Quebec Court of Appeal Warns Insurers To Specify All the Reasons for Denial of Coverage.”
Jean-Charles René, Ogilvie Renault.

“Court tells insurers to lie in the bed they made.” Kelly Harris, Canadian Lawyer Magazine, February, 2009. [Note: Canadian Lawyer uses an unusual digital version of its magazine. You will have to go to the link and then flip the pages as if you were reading the magazine in its treeware format.]

An update on two previous posts

On February 5, 2009 I did a post on parental alienation. Since then the judge who has written a book on the subject, Harvey P. Brownstone, has done an op-ed piece in the Globe and Mail on this topic.

On March 31 I did a post on some hysterical American prosecutorial reactions to "sexting". Noted criminal defence attorney Eddie Greenspan has since written a piece on the issue.

Missing Child: The suspect looks like this

"The composite drawing of a female suspect, said to be 19 to 25 years old, about 5 foot 1 and some 125 pounds, that was released last night is based on a description provided by an "independent witness," police said this morning."

(Toronto Star)

Victoria "Tori" Stafford is 8 years old and resides in Woodstock. Victoria attended school at Oliver Stephen's Public School in Woodstock, and left school when dismissed at 3:25 PM. Victoria had invited two friends to her house to watch a movie after school, and she was seen leaving the school. A video tape shows Victoria walking northbound on Fyfe Street in Woodstock with a white female. The time on the videotape is 3:32 PM. The female is wearing a white, waist length winter coat and may be carrying a black bag. The video shows Victoria and the female cross the street and continue walking east at the intersection of Walter Street.

Victoria was wearing black and white running shoes, black leotards, a black velvet pleated skirt, an army green coloured "Hanna Montana" T-shirt that had pink stitching with a hood, a black "Hanna Montana" winter coat with a hood trimmed with white fur, a black head hand, and butterfly earings. She was carrying a purple coloured "Bratz" bag.

OPP Website on the Victoria "Tori" Stafford disappearance.

If you have any information, please call the OPP at 1-877-9FIND ME (1-877-934-6363) Toll Free in Canada or email them at Tips or at opp.isb.resolve@ontario.ca, or call (705) 330-4144 for local or outside of Canada.

Missing Child: Victoria Stafford

Drug Decriminalization Policy Forum - Follow-up

On March 14, 2009 I provided details to the Cato Institute's policy forum on Portugal's experience with drug decriminalization. The policy forum is now complete and the video can be found here.

You can download a podcast (in mp3 format) of the event here.

A victory for sanity

Yesterday I blogged about a crazy American case where a disturbingly obsessed American prosecutor went after a bunch of teenage girls, seeking to have them jailed as child pornographers for having pictures of themselves in bras. Fortunately the federal court in question isn't as Salemish as he is:

PHILADELPHIA, March 30 (Reuters) - A U.S. judge on Monday barred a Pennsylvania prosecutor from filing child pornography charges against three teenage girls caught with sexually suggestive pictures of themselves on their cell phones.

U.S. District Judge James Munley said he was issuing a restraining order on Wyoming County District Attorney George Skumanick ..... [snip]

Witold Walczack, legal director of the ACLU of Pennsylvania, welcomed the legal decision.

"This country needs to have a discussion about whether prosecuting minors as child pornographers for merely being impulsive and naive is the appropriate way to address the serious consequences that can result from sexting," he said.[snip]

Going too far: Where the Americans go we should fear to tread

Lawyers, Guns and Money is one of my favourite American political blogs. It touches on politics, gender relations and defence and strategic studies issues, all of which are fascinating to me.

There is a recent post entitled "The Police State and the Private" which is a worthwhile read. It addresses in small part the disturbing tendency of American police and prosecutorial authorities to strip away not only rights but basic human dignity from youth simply because they are in school and their elders are downright hysterical about drugs. The fear-based attitude itself is nothing new: the statement of the Norwegian criminologist Nils Christie that schools exist to keep a large and potentially troublesome portion of the population occupied is many decades old, for example. But when taken this far it is insane and verges on child abuse.

"On the basis of an uncorroborated tip from the culpable eighth grader, public middle school officials searched futilely for prescription-strength ibuprofen by strip-searching thirteen-year-old honor student Savana Redding. "

Fortunately, the court concluded that:

"the school officials violated Savana's Fourth Amendment right to be free from unreasonable search and seizure. The strip search of Savana was neither "justified at its inception," New Jersey v. T.L.O., 469 U.S. 325, 341 (1985), nor, as a grossly intrusive search of a middle school girl to locate pills with the potency of two over-the-counter Advil capsules, "reasonably related in scope to the circumstances" giving rise to its initiation. Id. Because these constitutional principles were clearly established at the time that middle school officials directed and conducted the search, the school official in charge is not entitled to qualified immunity from suit for the unconstitutional strip search of Savana."

The American blogger aimai nails it in a post on that LGM thread:

The weirdest thing of all to me about these school cases in general and this one in particular is how bizarre it is that almost everyone concerned just assumes that the same tactics appropriate to prisons and armies (both situations in which individual members voluntarily or involuntarily give up their civil rights and can be presumed to be hostile to the rules governing their behavior) are applied to children seeking education in a communal setting.

A school is not a prison. School children are not prisoners. Moroever, the interests of a student are not, and can not be, understood to be different from those of administrators or the administrators want the wrong thing for the children.
[...]
Whatever you think of the kid the correct pedagogical strategy is to create a space in which the school is not a prison, the teachers and staff are not the enemy. And if you can't do that to start with you can't teach the kids. You've already failed.

The same lunacy is found in a case where teenagers took pictures of each other in bra and panties at a slumber party are being threatened with child pornography charges. (For more details please read the post found at Radley Balko's blog, "The Agitator", and the links below.)

Sadly, this is not an uncommon bit of lunacy:

• In one Florida a judge convicted a 17 year old boy and a 16 year old girl of child pornography because they took digital pictures of each other whilst fooling around, a decision that was upheld on appeal. One judge therein spoke of the harm that these pictures could do to these children. ( Frankly, if I was seventeen and told that I had a choice between a lifetime as a convicted criminal labelled as a sexual deviant on the one hand, and the embarassment of somebody seeing me have fumbling teen sex on the other I'd reach for the camera and red face be damned.)
• In Ohio a 15 year old girl is facing felony charges and forced registration as a sex offender for sending pictures of herself to classmates (and charges against the classmates may be pending).
• In Denton, Texas, a 13 year old boy is under arrest for receiving a picture sent by a female teenage classmate and thus having it on his cellphone.

Watch the video regarding the Wyoming, Pennsylvania case. I trust that I'm not the only person who feels uncomfortable with a prosecutor upon being asked "what exactly did she do wrong?" state "that's not the issue before the federal court"? (Please do remember that the United States Supreme Court has held that actual innocence of the crime is not a bar to a valid conviction, absent an underlying constitutional violation.) He is bringing ludicrous charges which will put a young girl in prison for years and label her a sex offender for life for the crime of taking a picture of herself in a bra at a slumber party, tried to blackmail the child into a bogus rehab program and when faced with Constitutional oversight says that the court shouldn't even be involved. He seems profoundly put out by the fact that anything could get in the way of a DA charging somebody, even if the charge is crazy and he should be ashamed of himself. (This does not even address the problems inherent with such programs. Two Pennsylvania judges were recently caught accepting bribes to send innocent teenagers to jail; private prison operators gave them money for every kid that was sent to them. Efforts are being made to clear the children's names, but it does rather beg the question of whether sending children to jail for harmless activity should be permitted at all.)

No-one would argue that "sexting" is a remarkably foolish thing to do; in a worst case scenario it can even lead to tragedy. But placing poor-judgment teenagers into the same category as the vermin who ogle pictures of children is bizarre and destructive.

Our Canadian courts have flaws, and our society has flaws, but our cops, prosecutors and judicial system have not completely taken leave of their senses. They aren't putting children in prison for doofus idiocy yet, nor are these professionals demanding that we do so. For that we should be profoundly grateful, thank them, and very, very wary of any Canadian figure who starts to look longingly south for hideous ideas posing as good ones.

Further reading:

• "The new pornographers: What's more disturbing -- that teens are texting each other naked pictures of themselves, or that it could get them branded as sex offenders for life?" - Tracy Clark-Flory, Salon Magazine, February 20, 2009.
• "Students Sue Prosecutor in Cellphone Photos Case", Sean D. Hamill, New York Times, Marc 25, 2009.
• "`Sexting' teens strike back!", Tracy Clark-Flory, Salon Magazine, March 27, 2009.

"Drug Decriminalization in Portugal" - Has it worked?

Drug Decriminalization in Portugal - Online Policy Forum, Cato Institute.

(What is the Cato Institute?)

Friday, April 3, 2009 - 12:00 PM EDT (1600h UDT "Zulu" Time)

From the Cato Institute Website:

Featuring Glenn Greenwald, Attorney and Best-selling Author; with comments by Peter Reuter, Department of Criminology, University of Maryland; moderated by Tim Lynch, Director, Project on Criminal Justice, Cato Institute.

The Cato Institute
1000 Massachusetts Avenue, NW
Washington, DC 20001

Go to this page at the above time to watch the event live.

In 2001, Portugal began a remarkable policy experiment, decriminalizing all drugs, including cocaine and heroin. Some predicted disastrous results—that drug addiction rates would soar and the country would become a haven for "drug tourists." Now that several years have passed, policy experts can study the results. In a new paper for the Cato Institute, attorney and author Glenn Greenwald closely examines the Portugal experiment and concludes that the doomsayers were wrong. There is now a widespread consensus in Portugal that decriminalization has been a success. The debate in Portugal has shifted rather dramatically to minor adjustments in the existing arrangement. There is no real debate about whether drugs should once again be criminalized. Join us for a discussion about Glenn Greenwald's field research in Portugal and what lessons his findings may hold for drug policies in other countries.

[You can] watch this forum live online at Friday, April 3, 2009 at 12 [noon Eastern (Toronto, London, ON) time].