On March 15, 2017 the US Department of Justice announced that they were laying charges against four people accused of hacking four hundred Yahoo email accounts in 2014. Two of the accused are Russian intelligence officers and a third was in the US but has since fled to Russia. The fourth is one of our own, Hamilton native Karim Baratov, age 22.

Baratov has been roasted by media and law enforcement because he openly flaunted his love of luxury items online. When people asked how he could afford these things, his reply was that he was providing online services.

In the court of public opinion, it sounds like Baratov is guilty of the crimes he’s accused of, even though “online services” could mean everything from sexy video chats to tech support.

This article is not about Baratov. He is currently in jail awaiting his bail hearing in April and plans to fight his extradition to the US where he would face charges of conspiring to commit computer fraud and abuse, conspiring to commit access device fraud, conspiring to commit wire fraud and aggravated identity theft.

This article is about how we address hacking in Canada.

It should be said right off the bat that not all hacking is illegal. One of the definitions of hacking is writing computer programs for fun, which is not illegal if the programs are harmless.

The other definition of hacking is the one most people are most familiar with, which is the act of getting into a computer illegally.

Though it’s never called hacking in the Canadian Criminal Code, the section dealing with the crime is the one used to address mischief. That’s right; the laws against hacking are in the same place you find the law punishing leaving flaming bags of poop on doorsteps on Devil’s Night.

The crime of hacking in Canadian law is called “Mischief in relation to computer data” and is defined as willfully:

  • Detroying or altering computer data
  • Rendering computer data meaningless, useless or ineffective
  • Obstructing, interrupting or interfering with the lawful use of computer data
  • Obstructing, interrupting or interfering with a person in the lawful use of computer data or denying access to computer data to a person who is entitled to access to it.

The punishments are the same as for any other kind of mischief crime. If the act put a life in danger, you’re liable to spend life in jail. If the crime caused damages worth five thousand dollars or more, it’s an indictable offense with a maximum sentence of ten years in jail or a summary conviction which would mean six months in jail or a five thousand dollar fine. If the value of the damage was less than five thousand dollars, you’re facing either a summary conviction or an indictment with up to two years in jail.

Like many crimes, hacking is often done with intent to commit other crimes like fraud, theft, and unauthorized uses of credit card data. A person guilty of hacking could therefore also be found guilty of additional crimes, some of which – like fraud – carry stiffer penalties than mischief.

Canadian law also holds a person responsible if they counseled or made it easier for someone else to commit a crime and they can face the same penalty as the perpetrator who actually did it. They can also face those penalties if they knew or should have known the crime could be committed as a result of their actions or lack thereof.

Though Canadian governments have been criticized as being ill equipped to tackle computer crime, the government seems to be doing its best not only to protect itself from cyber-attacks but also to teach us to protect ourselves.

In 2010, the Harper Government launched the Cyber Security Strategy outlining a long term national plan to deal with computer crime. The website getcybersafe.gc.ca was created by Public Safety Canada and is full of guidelines for ordinary citizens and businesses with the goal of keeping Canadians safer by increasing awareness of common online threats and how to fight them. The Canadian Anti-Fraud Center was created by a joint effort by the RCMP, Ontario Provincial Police, and the Competition Bureau to fight mass marketing fraud online and is regularly updated with information regarding popular scams.

Technology is advancing at a greater pace than ever and our governments are trying to catch up to protect the victims. The problem with their initiatives is that they seem to place most of the pressure to protect against cybercrime on potential victims, which could lead to victim-blaming even in cases where, due to age or infirmity, a person may not be tech savvy enough to take every precaution. Their plan needs work to put the onus back on law enforcement to protect against cyber-crime back on those charged with protecting us, but at least it’s there.

After a train exploded in 2013 in the small town of Lac Mégantic, killing 47, many of the mourning families turned to the American justice system in hopes of getting better compensation. Four years later, the three firms representing them have charged them around $40 million in total, despite doing virtually nothing, according to information gathered by Radio-Canada’s Enquête.

40 of the 47 families have contracts with the Garcia Law Group (GLG). According to Radio-Canada, they have paid them between 10 and 15 million so far, with nothing to show for it. The firm is based in Southern Texas and owned by Wilfrido Rogelio Garcia. It was first registered there only a month after the Lac Mégantic accident.

Despite what his clients believe, Garcia is not even a lawyer. In fact the only lawyer on the firm’s payroll seems to be his daughter, Maria Garcia. GLG’s modus operandi is to pressure grieving families to sign contracts, so they can resell their cases to lawyers.

“They said to me that with some plane crashes in Europe, [Garcia] or his people were there in less than 24 hours. They were proud of that,” said Michele Whitmore, who once worked on a contract with GLG, as quoted by Radio-Canada. Garcia found clients in the aftermath of at least four plane crashes, in Peru, Greece, Russia and Indonesia, where the number of casualties ranged from 48 to 129.

GLG was the first law firm to get to Lac Mégantic after the tragedy They approached the families of victims and invited them to meetings to convince them that GLG could seek justice for them through the American system.

Ginette Cameron, who lost her daughter Geneviève in the explosion, remembers Garcia asking her several times if she would like another mother to live through what she lived through. She and her husband signed the same day.

Experts agree that such behaviour is against every deontological code. According to Bill Edwards, a lawyer interviewed by Radio-Canada, it is plainly illegal. Reporters have been unable to speak to anyone from Garcia Law Group.

Enquête’s full report will air tonight at 9pm on Radio-Canada.

* Featured image: Google Street View of the address listed on the Garcia Law Firm PLLC website

On March 7, 2017 Federal Justice Minister Jody Wilson-Raybould announced plans to clean up the Canadian Criminal Code and rid it of “zombie laws”. If you think of zombie laws, you probably think of the rules one would have to follow during a zombie apocalypse. Sadly, zombie laws aren’t related to the undead, but they ARE interesting, and like the zombies in fiction, can be rather annoying.

Zombie laws are laws that are no longer in force but still technically, physically, on the books.

The issue of zombie criminal laws recently came up due to the case of Travis Vader, the man convicted of murdering two elderly people in Alberta. The judge sentenced him for culpable homicide aka second degree murder.

Unfortunately, culpable homicide no longer exists in Canadian criminal law, it’s a zombie concept. If you kill someone, you can only be convicted of murder or manslaughter.

The provision the judge used to convict him – section 230 of the Criminal Code – had been declared unconstitutional by the Supreme Court in 1990. Vader’s lawyers argued for a mistrial, but fortunately for the safety of everyone, they did not get one. The judge in question instead sentenced Vader to life for two counts manslaughter.

This is not the first time zombie laws have caused problems. Though the law prohibiting anal sex for people under the age of eighteen has been ruled unconstitutional by appeals’ courts, there are claims that sixty-nine people have been charged with the offense between 2014 and 2015.

Stephen Coughlan, Professor at Schulich School of Law at Dalhousie University in Halifax came up with a list of zombie criminal laws. These laws include:

  • Spreading false news: This provision of the Criminal Code was struck down by the Supreme Court of Canada in 1992 for violating constitutional protections of freedom of expression.
  • Vagrancy: This was struck down by the Supreme Court in 1994 in R v. Heywood for violating the constitutional rights to life, liberty, and security of the person, and the right to be presumed innocent until proven guilty.
  • Procuring a miscarriage aka abortion: Struck down by the Supreme Court in 1988 in R v. Morgentaler

Restrictions also still on the books include those against dueling, fraudulently pretending to practice witchcraft, and crime comic books – yes, crime comics used to be illegal.

The Canadian Criminal Code is over eight hundred forty nine provisions long.

Law enforcement, prosecutors and judges rely on it to determine who to arrest, who to charge, how to convict, and how to sentence a person for a crime. Though people in the legal and law enforcement professions are expected to stay up to date in their field, it’s impossible to keep track of every law and many will still look it up when in doubt.

If a law in a text they rely on to inform them has been declared unconstitutional but was never actually removed from that text, mistakes like the one in the Travis Vader case are inevitable, because the source material they rely on – and should rely on – is full of mistakes.

So why haven’t federal governments worked to remove these laws sooner?

The most likely reason is because governments are busy and removing something from a body of law as vast as the Canadian Criminal Code takes a lot of work they don’t have the time for.

In order to amend the Criminal Code, the government will have to present a bill calling for the changes. That bill will have to outline every single zombie provision and when it was struck down, declared unconstitutional, or why it’s not used anymore. That means that someone or a group of someones will have to go through the Criminal Code and the Canadian judicial system’s vast body of case law to determine which ones are zombie provisions. The extensive work of Professor Stephen Coughlan on the subject will undoubtedly be a useful starting point.

Once the bill is drafted, it will have to go through the same grueling process every other federal law has to go through. That means that it will have to be formally presented to Parliament, debated, debated again, and voted on. If it passes, it will have to go to the Senate for its own round of debate and votes. Either house can kill the bill.

If the law proposing to update the Criminal Code is passed, the next step is arduous process of actually doing it. That means not only removing the zombie provisions but also going over the Code in its entirety to make sure the text is clear and consistent through and through. There’s also the issue of where the current Criminal Code will stand while the updates are in the works.

Though the process is going to be a long and annoying one, removing zombie laws is a necessary job that’s long overdue. The difficulties will come not only in drafting and passing a law to actually do it, but in figuring out an efficient way to do it without leaving dangerous voids in our legal system.

Will the Federal government’s plan work? Only time will tell.

On Monday the Orange Administration released a new Executive Order. We all knew it was coming, for no sooner had courts struck down the original Muslim ban when the White House promised a new and improved version. It was supposed to be signed and released last week, but then something strange happened.

In his first joint-address to Congress, the Lint-Covered-Cheeto President surprised everyone by acting like a gentleman. There was no blustering, there was just a man-child giving a speech. Reporters hailed his behavior as being truly “presidential” and the White House opted not to ruin the wave of good faith by releasing the new ban immediately afterward.

No matter what the new travel ban says, it will never outshine the atrocities committed in the first ban’s name. It will never outshine the baby who was denied entry for life-saving surgery (a lawmaker intervened on the child’s behalf when the story leaked so she was saved in the end), or the child separated from his mother for hours, or the old lady who was denied a wheelchair under the enforcement of the first Executive Order. It will never undo the widespread outrage from ordinary citizens and the legal community.

Now it’s time to look at the new Executive Order.

This order replaces the previous one and provides something the first order was sorely lacking: clarifications.

The first Executive Order was so vague no one seemed to know how to enforce it. As a result, people in positions to abuse it did and people with valid documents to enter the US from permanent residents to workers to famous authors and ex diplomats with legit visas were denied or delayed.

The new Executive Order provides a list of people deemed exceptions to its travel restrictions. Among the exceptions are lawful permanent residents, foreign nationals with valid visas or other documents allowing them to legally enter the US, people with dual citizenship, and those on diplomatic visas. Also exempt are foreign business people and workers, foreign nationals granted asylum or refugee status, children needing urgent medical care, and people legally admitted to the US to stay with family.

The new Order also does something the other did not: it condemned Islamophobia.

Unfortunately, the new Order does it in the most petulant way possible by defending the previous Executive Order with a none-too-subtle “we didn’t mean it that way!” response to the displays of Islamaphobia that had ensued.

Section 1 of the new order says:

Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities — whoever they are and wherever they reside — to avail themselves of the USRAP in light of their particular challenges and circumstances.

This petulant tone is consistent throughout the beginning of the new Executive Order as section 1 is full of justifications and excuses for the first ban.

On the bright side, it also includes a subtle acknowledgment that the White House would never succeed in the courts had they continued to try and enforce the first Executive Order. The provision that replaces the first order with the current one says that it is “in order to avoid spending additional time pursuing litigation”.

People generally back out of legal disputes to due amicable resolutions, lack of funds, or the fact that they know they can’t win. The former two do not apply here.

Then there’s the list of countries banned.

One would hope that a new improved travel ban would include limitations on some of the countries that actually produce terrorists. Those states widely acknowledged as such include Saudi Arabia, Egypt, the UAE, Lebanon, Turkey, and Kuwait. Sadly, none of these countries are on the list of limited countries as the new Order maintains limitations on Syria, Iraq, Iran, Yemen, Libya, and Somalia from the previous version.

However, this new Order tries to back up this list with facts cherry-picked in part from the Department of State’s Country Reports on Terrorism 2015 (June 2016). The Order does not state where the rest of its justifications come from.

It maintains the discretion of the Secretaries of State and Homeland Security to make exceptions to the ban and like the previous Order, gives them extra responsibilities. The Order requires them with the Director of National Intelligence to review and identify countries from which more information is needed about their people before they are admitted to the US. Once they make the list, they have to ask the countries for information and if they don’t get it in a certain amount of time, the country’s people won’t be admitted to the US.

The new Executive Order was an opportunity for the White House to redeem itself. They could have limited nationals from countries that actually produce a lot of terrorists. They didn’t. They could have used actual facts to back their rules and claims, but they didn’t.

The White House did however do one very important thing which to specify who the ban does not apply to, leaving less room for racists and xenophobes with rubber gloves and metal detectors to arbitrarily bar or detain people they don’t like. In that sense, this new order is new and improved.

In movie treason trials, a person facing a cruel, usually male, judge and screaming prosecutors is accused of betraying their country while they plead innocence and national loyalty. Sometimes the trial will end in a hanging, other times it will end by firing squad, and still others end with electrocution. Rarely is the accused set free.

In real life, treason cases are a lot more complex.

Despite the enhanced vigilance of Canadian and American law enforcement in the face of terrorism, people are rarely prosecuted for treason.

Since Canadian and American criminal laws have their roots in the British legal tradition, it’s time to look at how we and our southern neighbors define the crime and how it should be prosecuted.

In Canada, treason is defined in our Criminal Code.

There are two types of treason: regular, called simply treason and high treason.

High treason is defined as committing one or all of the following acts if you are a Canadian citizen:

  • Killing or attempting to kill the Queen (Canada’s de jure head of State) or causing bodily harm leading to her “death or destruction”
  • Maiming, wounding, imprisoning, or restraining the Queen
  • Making or Preparing for War Against Canada
  • Assisting an enemy at war with Canada or assisting any armed forces Canadian forces are fighting regardless of whether those armed forces are at war with Canada

Treason is defined by one or all of the following acts:

  • Using force or violence to overthrow the Canadian government or the government of a province
  • Communicating “without lawful authority” scientific or military information or sketches, plans, or documents of a scientific or military character that you knew or ought to have known could be used by an agent of another state against Canada
  • Conspiring to commit the above and manifesting an intention to go through with it via an overt act
  • Conspiring to commit high treason and manifesting an intention to commit it by an overt act. Conspiring with a person to commit treason is considered an overt act.

The law not only defines the crime itself and the penalties, but also who can be convicted of either kind treason and under what circumstances.

According to the Criminal Code, the rules on treason apply to Canadian citizens.

A crime of high treason can be committed while in or outside of Canada, as can acts of regular treason.

A conviction for high treason carries the penalty of life in prison.

The penalty for regular treason is a bit more complex.

If you’re convicted of using force or violence against Canadian government or province with the intent to overthrow it, it’s life in prison. The penalty is the same for communicating military or scientific information, documents etc. knowing or having ought to know that they could be used by another country or even conspiring to do so and manifesting intention to carry it out by an overt act while Canada is at war with that country. If you communicate or conspire to communicate this stuff when Canada is not at war, the penalty becomes a maximum of fourteen years in jail.

The penalties for treason are heavy in Canada as in most countries, so the rules of evidence and procedure are extremely strict in these cases.

Proceedings against people accused of violent attempts to overthrow the government have to take place three years or less after the alleged crime was committed. For overt acts of treason, the words of information expressing the overt act have to be laid under oath before a justice within six days of the alleged overt act, and a warrant for the person’s arrest has to be issued within ten days of that.

There can be no conviction for treason on the evidence of only one witness unless that witness’ testimony is corroborated my material evidence.

Only two people in Canadian history have been tried and convicted of treason.

The first is the Métis leader Louis Riel, who was hanged in eighteen eighty five.

The lesser known, Kanao Inouye aka the Kamloops Kid, was responsible for interrogating and torturing Canadian Prisoners of War in Japanese occupied Hong Kong during the Second World War. He was convicted of war crimes and sentenced to death by a British war crimes court, but his lawyer successfully appealed on the grounds that Inouye was a Canadian citizen and therefore could not be considered a war criminal. Inouye was instead tried for treason and hanged by the British Hong Kong Supreme Court in 1947.

In the United States, the laws regarding treason are similar. As the nation was born in defiance of the British Monarchy which had been known to charge people of the crime willy nilly, the crime of treason is clearly and strictly defined in the US Constitution.

Article III, section 3 of the constitution defines treason as:

“…levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

As in Canada, the rules for a conviction on the charge of treason in the US are strict. American law requires the testimony of two witnesses to the crime or a confession in open court to convict someone of treason.

As in Canada, convictions for treason are rare. Most civil war veterans, for example, were granted amnesty by the US government instead of facing treason charges. In some cases, such as that of Iva Toguri D’Aquino, the trials and investigations were corrupt and ultimately resulted in presidential pardons and apologies.

The penalty for treason in the US can be imprisonment or death.

With the implications of treason so heavy, it’s no wonder people are rarely charged with the crime. However, with the revelations of the Orange Administration’s willful conspiring with the Russian government to corrupt their elections and push an agenda hurting the American people, the only question left is whether law enforcement in the south will grow a pair and prosecute those clearly guilty of the crime.

Yesterday marked a historic occasion. It wasn’t just the meeting of the Canadian Prime Minister and the American President, those things happen all the time. This occasion was historic for no two leaders could be so different.

The American President is an inexperienced physically repulsive fascist classist racist misogynist who is suspected of not only tax evasion and sexual assault but also of high treason against his own country, treason, which most likely led to his current position as leader of the free world.

The Canadian Prime Minister is young, handsome, openly feminist, physically fit, and has made efforts to reconcile white Canadians with its racial and ethnic minorities. Unlike President Agent Orange, Trudeau has political experience and there is no disputing that he won his position somewhat fairly.

People watched on the edge of their seats yesterday as the two of them met.

For Canadian politicians and businessmen, the big concern was North American Free-Trade Agreement (NAFTA).

The Agreement was negotiated between Canadian Prime Minister Brian Mulroney, US President George H. W. Bush and President Carlos Salinas de Gortari of Mexico. It has recently become a yuge cause of worry because Cheeto Head’s electoral campaign was marked by inflammatory rhetoric branding NAFTA a bad deal that had to be renegotiated for the sake of American workers.

According to Canadian Foreign Affairs Minister and de facto Trade Minister Chrystia Freeland, updating treaties is routine. On February 8, 2017 she told the CBC that NAFTA has had at least eleven updates since it came into force in January 1994. She also said that if the Americans are looking for a better deal, Canada has every intention of going on the offensive and protecting our national interests.

To everyone’s surprise, yesterday’s meeting went well. People were concerned because of Trump’s talent for bullying other men and many thought that Trudeau’s popularity and good looks would bring that out. It seems, however, that our Prime Minister knows and applied the tactic that works with all vain, self-important wealthy old men: flattery.

Trudeau presented the Orange Narcissist with something he knew he’d love: a picture of himself (with his father). By the end of the meeting the President emphasized that his issues with NAFTA were primarily about Mexico and in a joint statement he and the Prime Minister said that:

“We recognize our profound shared economic interests, and will work tirelessly to provide growth and jobs for both countries.”

This is a far cry from the words of Minister Freeland, so it’s time to look at NAFTA and what it actually says.

The Agreement’s main goal is to eliminate trade barriers and facilitate the cross-border movement of goods and services between Canada, the United States and Mexico. It contains a lot of rules about intellectual property and different industries but the main issue with NAFTA seems to be regarding tariffs.

Tariffs, also known as customs duties, are taxes that must be paid on a particular class of imports or exports. The practice of imposing them serves to protect products produced domestically and helps to set the prices of certain classes of goods.

Tariffs have become a big issue because NAFTA discourages tariff use and President Agent Orange’s picks for Commerce Secretary, Wilbur Ross Jr, and Trade Representative, Robert Lighthizer, are in favor of tariffs.

As per NAFTA, no party can increase existing tariffs or adopt new ones on goods produced in a member state. Parties to the Agreement also have to eliminate existing customs duties as per a schedule set in the Agreement but can consult with one another on how to speed up the process thus doing away with tariffs ahead of schedule.

Until the Orange Racist Misogynist’s picks for Commerce Secretary and Trade Representative are confirmed, no re-negotiation of NAFTA can take place. It’s therefore time to look at who these men are.

The President’s pick for Commerce Secretary is billionaire investor Wilbur Ross Jr. He is deeply critical of trade agreements, NAFTA included, and wants to impose a thirty five percent tariff on the goods of companies that send jobs overseas.

Ross is also a hypocrite for as Reuters reported, he is guilty of sending two thousand seven hundred American jobs overseas since 2004. Ross justified the move by claiming he was able to save other jobs in the process, but it nonetheless adds to his questionable reputation.

With the Orange Administration already under suspicion for links to Russian espionage, nominating Ross, who has close financial ties to the Renova Group, a conglomerate closely linked to the Kremlin does not bode well for his chances of confirmation. As Commerce Secretary, he would be responsible for the US Patent and Trade Office, the Census Bureau, and the National Oceanic and Atmospheric Administration among others, if confirmed.

Then there’s the pick for US Trade Representative, Robert Lighthizer, a man whose last name sounds like an infomercial fitness product. Unlike Ross, Lighthizer has a lot of political experience, having served as a Reagan Administration Trade Official. He is a skeptic of free trade, advocates for increasing tariffs on imports from competitors, and if confirmed as Trade Representative, will be responsible for negotiating trade agreements and representing the US at the World Trade Organization.

Of the two men, Lighthizer is the one most likely to be confirmed with minimal conflict. It is unlikely, however, that any decisions they make will affect Canada’s obligations as per NAFTA. Canada shares the largest and least defended border with the United States and the US is our greatest trading partner.

With our Prime Minister’s charm, feminism, and message of welcome, tolerance, and inclusiveness, we look like pillars of virtue compared to our neighbors to the South and they know it. So long as Trudeau continues to fluff Cheeto-Head’s fragile ego, we can take comfort in the fact the White House won’t give any trouble, NAFTA or not, if only because standing next to us makes them look a little less awful.

On January 31, 2017 US President Cheeto-Head named Judge Neil Gorsuch to the Supreme Court. The nomination fulfills Cheeto-Head’s promise to name a conservative justice “in the mold of Scalia” if elected president (legally or illegally). Since so much of what the Orange Racist Misogynist Tax Evader has done is questionable at best, it is time to take a serious look at the man he has appointed to the highest court in the United States.

Neil Gorsuch is in many ways the embodiment of what conservative Christian Republicans think a judge or politician should be. He is a white middle aged male who Is devoutly Christian, but not Catholic (his family are Episcopalian). He is well spoken, looks good in a suit and tie, and while he and his college sweetheart wife and two kids raise horses, chickens, and goats at their home in Colorado, they are no rednecks.

His family has a history of serving Republican presidents. Gorsuch’s mother, politician and lawyer Anne Gorsuch Burford, was appointed by former president Ronald Reagan to run the Environmental Protection Agency. For Republican climate-change deniers, Gorsuch Burford was ideal for she slashed the EPA’s budget, cut most clean water regulations from the books, and filled vital positions within the Agency with people from the very industries it was supposed to be checking. The scandals resulting from her actions led to her resignation in 1983.

Gorsuch’s resume is impressive. He is a graduate of Columbia, Harvard, and Oxford. After a couple of clerkships with conservative judges, he worked in private practice at a prestigious law firm in Washington DC for ten years and eventually ended up as a Federal Appelate Judge based in Colorado. At the same time Gorsuch has served as an occasional adjunct law professor at the University of Colorado.

There are also a lot of concerns about Judge Gorsuch.

People are worried that he is anti woman and would choose religious freedoms over people’s right to self determination.

There is a lot of evidence to support this worry.

While at Oxford, Gorsuch studied under Professor John Finnis, an Australian legal scholar who is considered an expert on natural law. After his studies, the Gorsuch and Finnis remained close. This seems harmless, but it’s not when you consider that Gorsuch’s mentor wrote about “the evil of homosexual conduct” in 1994 and has been branded a hatemonger by many.

As a judge, Gorsuch has a history of favoring religious freedoms over people’s right to health care and self determination. In the famous Hobby Lobby and Little Sisters of the Poor cases involving for-profit corporations demanding religious exemptions from the contraceptive mandate of the Affordable Care Act requiring corporate health plans to cover contraceptives for female employees on penalty of fines for refusal, Gorsuch sided with the corporations. In the Little Sisters of the Poor decision, he wrote that it was:

“An issue that has little to do with contraception and a great deal to do with religious liberty … When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes substantial burden on that person’s free exercise of religion.”

Though Gorsuch has never decided an abortion case, he did publish a book called The Future of Assisted Suicide and Euthanasia in 2009 and many argue that the views expressed in it could easily transfer to abortion. In his book he says that human life is “fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.”

Whether this view actually extends to abortion remains to be seen, but it has caused enough concern that the National Institute for Reproductive Health has called his appointment “an extension of the Trump administration’s attack on women’s rights,” and Senator Bernie Sanders tweeted on January 31, 2017 that:

Despite his worrisome track record on certain issues, Gorsuch does show promise for two fundamental reasons.

First, he is outspokenly against excessive criminalization. That means that he thinks there are too many criminal laws punishing ordinary behavior on the books.

In 2013 he gave the 13th Annual Barbara K. Olsen Memorial Lecture in which he points out that too many laws violate people’s rights to fair notice to the point that “criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity.”

Neil Gorsuch’s legal decisions reflect this belief as he often sides with defendants in criminal cases. This bodes well when it comes to issues of race for African Americans and Hispanics are excessively targeted and prosecuted in the United States.

Another reason to hope is because of Gorsuch’s belief in the judiciary’s role in containing the excesses of Executive Power. He is in favor of term limits for elected officials because “men are not angels.”

Though, like Scalia, he believes in interpreting the constitution from the perspective of its authors. This comes with an understanding of the need to enforce the checks and balances on the legislative and executive branches to save the country from abuse by those who govern it.

Though thus far only lower courts have halted the enforcement of abusive and illegal Executive Orders from the Oval Office, Gorsuch’s reputation as a principled jurist against executive excess suggests that he would not hesitate to rule against the White House if he ascended to the Supreme Court.

Though there is hope for the United States, there is also the danger of a deadlock. Democrats are still bitter about the Senate’s refusal to confirm Judge Merrick Garland, who was named to the Supreme Court by Barack Obama. Like Garland, Gorsuch is mostly respected across party lines, so the question remains whether the Senate will do its job this time, or give the Cheeto Administration the silent treatment.

On January 27, 2017 the President of the United States signed an Executive Order, one of his first acts as leader of the free world. Its premise is to protect Americans from the alleged threat of terrorists pretending to be refugees in order to get into the United States.

There has been a lot of discussion about this Order. Some people are calling it a Muslim ban, while others are justifying it as a legitimate and reasonable approach to American security. What no one seems to be doing is actually reading the Order itself.

Whoever wrote the Executive Order deserves a medal for literature. It is subtle and eloquent in a way the man who signed it will never be.

Does it ban Muslims outright?

No.

What the Executive Order does is suspend immigrant and non-immigrant entry into the United States from certain countries “of Particular Concern”.

Refugees from Syria are denied entry until the president says otherwise. People from countries designated by the Secretary of State and Secretary of Homeland Security as having repeatedly provided support for international terrorism are also banned, but for a period of ninety days.

This list (so far) includes Iraq, Iran, Sudan, Libya, Yemen and Somalia. Saudi Arabia, which is known for encouraging the extremist Islamic beliefs adopted by terrorists, is suspiciously absent from this list. Whether this is due to the President’s business dealings with the Kingdom or vested American interest in maintaining relations with them is unclear.

The Order also changes the criteria for refugee claims, prioritizing those “made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality”.

As most of the refugees are from Muslim-majority countries, most of those seeking safety in the United States are Muslim.

Though the Order says that “the United States should not admit those who engage in acts of bigotry or hatred (including ‘honor’ killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation”, it does not offer any protection to people fleeing persecution due to gender, sexual orientation, or race. Being a member of a religious minority seems to be the only exception to the ban.

The Order speaks of these new rules as necessary in part to “reduce investigative burdens on relevant agencies”. However, it calls for a flurry of security reports to be provided by the Secretary of State, Director of Homeland Security, and the Directors of the FBI and of National Intelligence and says that the Secretaries of State and Homeland Security can admit individual refugees on a case-by-case basis. All this sounds like MORE of a burden, not less.

Is this Executive Order legal?

Not according to the former acting Attorney General Sally Yates. A holdover from the Obama administration, she was asked by the new administration to stay on until the president’s nominee for Attorney General, Jeff Sessions, is confirmed by the Senate.

Last night, Yates told the US Department of Justice not to defend the Executive Order in the courts. In a letter to Justice Department lawyers, she said:

“I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right…At present, I am not convinced that the defense of the executive order is consistent with these responsibilities nor am I convinced that the executive order is lawful.”

She is not the first to acknowledge the Order as potentially illegal.

On January 28, 2017, a Federal Court in New York presided by Judge Ann Donnelly granted an Emergency Motion of Stay Removal to Hamid Khalid Darweesh, an Iraqi who’d risked his life acting as interpreter to the US army during the Iraq war, and Haider Sameer Abdulkhaleq Alshawi, another Iraqi who was en route to reunite with his wife and child in the US. Both were detained at the airport under the Executive Order and with the help of the American Civil Liberties Union, fought back.

In her decision, Judge Donnelly said

“The petitioners have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution.”

Many other federal courts have followed suit, granting stays blocking the Executive Order from being enforced.

When you read the US Constitution, something the president has clearly never done, it is easy to understand why the motions were granted.

Article I, Section 9 prohibits laws that single out any particular group for punishment without trial. The Fifth Amendment goes even further, stating that no person should be “deprived of life, liberty, or property without due process of law”.

As far back as the Second World War, American courts have recognized the danger of Executive Orders like these. In 1944 in Korematsu v. The United States, the Supreme Court said that

“All legal restrictions which curtail the civil rights of a single racial group are immediately suspect… courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”

The President has rambled on about the danger of foreign terrorists masquerading as refugees, but neither he nor his administration have presented any numbers to back this up. Instead, he fired Sally Yates for refusing to enforce an Executive Order that is legally unenforceable, leaving his administration without anyone with the legal authority to sign warrants authorizing the surveillance of the foreigners he fears so much.

The reaction of protesters, public officials and the American courts are reasons to hope for all who hate xenophobia, for as comedian Aziz Ansari recently pointed out:

“Change doesn’t come from presidents. Change comes from large groups of angry people.”

If the protests and lawsuits are any indication, change is coming.

In February of 1990, Barack Obama was the first black person elected to head the Harvard Law Review. The presidency of the Review is considered the highest student position at Harvard Law School.

It’s therefore fitting that in his final days as the first black person to hold the highest office in the United States, Barack Obama has gone back to his roots by publishing a piece in the Harvard Law Review. His essay is called The President’s Role in Advancing Criminal Justice Reform and was published on January 5, 2017.

The article is many things. It’s well written and it’s footnoted so you never have any doubts as to where Obama is getting his facts from or whether he’s making them up. It puts faith in you as a reader because there’s never a word wasted. On the other hand it also requires you to do some visual acrobatics because his sources are cited within the text, requiring you to skip over the citations to read the rest of what he’s saying.

His piece is also a little self-aggrandizing, but unlike the incoming president, all the things Obama says are substantiated by facts. He highlights his tackling of racial profiling as a legislator in Illinois and all sources indicate that he did just that.

In 1999 he proposed a bill against racial profiling after hearing that police were pulling over drivers simply for being black. When the bill failed, he revised and reintroduced it over and over again until it passed in 2003, making a point of publicly saying that “race and ethnicity is not an indicator of criminal activity.”

He also mentioned pushing for the videotaping of police interrogations as a requirement for interrogations and confessions in all capital cases. A measure he helped to pass in Illinois.

Chart from the Harvard Law Review essay

As President, he used his power of clemency to pardon or reduce the sentences of 231 people, many of whom had been punished for minor, non-violent drug crimes under tough anti-drug laws. The impact of this gesture is huge, for unlike other pardons, presidential ones wipe away the legal consequences of previous criminal convictions.

Obama hints at his frustrations battling a Republican Congress determined to undermine him during his presidency. Though he successfully passed the Fair Sentencing Act in 2010 which eliminated mandatory minimum sentences for simple possession of crack cocaine thus reducing excessive punishments imposed on people of colour, he had no such luck with the Smarter Sentencing Act.

The Smarter Sentencing Act was a bipartisan – meaning supported by both Democrats and Republicans – bill that would have reduced mandatory minimum sentences for some nonviolent drug offenses from twenty years to ten, and given judges greater discretion regarding whether or not to impose said sentences.

Despite support across party lines, many Republicans were skeptical of the bill and it never made it to the floor of Congress. The same happened with the Sentencing Reform and Corrections Act, a law that would have reduced more mandatory minimum sentences for nonviolent drug offenses and offered credits to prisoners who participate in rehabilitation programs. The Republicans tabled that one to death in November 2015.

Despite Obama’s frustrations with Congress in his attempts to pass progressive criminal justice reform, he constantly highlights his respect and faith in the American people and the rule of law.

In a none-too-subtle warning to the incoming president, Obama writes that the President “does not and should not decide who or what to investigate or prosecute.” He praises red states like Georgia, Texas and Alabama for reducing sentences and investing the money saved on incarceration in other public safety programs that help those affected by mental illness and substance abuse, many of whom had previously ended up in jail.

At the same time Obama highlights all the problems with the American Justice System: the systemic racism, overly harsh penalties for non-violent offenses, the excessive use of solitary confinement, and the economic problems caused by the US’ excessive use of incarceration. He points out that the US incarcerates 25% of its population and that the cost of maintaining so many prisons and the people within it is both “unnecessary and unsustainable.”

Though Democrats are widely accused of being fiscally irresponsible, it’s Republicans that always seem to be pushing for harsher penalties that increase the American prison population, thus straining state and national budgets regardless of whether or not it makes people safer. Obama quotes Deputy Attorney General Sally Yates who pointed out in November 2016 that every dollar spent on excessive sentences is “a dollar we don’t have for investigating emerging threats, from hackers to home grown terrorists,” a point that is especially relevant amidst widespread acknowledgement that the Russian government hacked the election to get an orange bigot into office.

Obama’s article reflects his awareness of the higher standard he was constantly being held to. In America people still seem to expect women and visible and sexual minorities and younger people to perform worse than middle aged white men at the same jobs, no matter how despicable and lazy individuals of the latter are.

Though the United States has less unemployment, a decreased federal prison population, and more people with health care due to Obama’s efforts, entitled rich white men are still questioning whether or not he was a good president. Obama clearly knows that he had to be beyond reproach during his time in office and while he did not achieve all he had promised – Guantanamo Bay has yet to be closed, for example – as a president he came pretty close despite all obstacles.

Regardless of what Barack Obama did or did not achieve, the one thing to take from his article is a warning that all the good that he did in his attempt to do right by the American people is in danger of being undone when a racist misogynist Russian puppet takes office on January 20, 2017.

The Canadian Security Intelligence Service (CSIS) has been in the news a lot recently. This past December, they outraged Canadians by backtracking on a promise to reveal to a Senate Committee how many journalists they’ve spied on in the past, citing “operational security”.

Whenever the issue of terrorism or Bill C-51 comes up, CSIS is always mentioned. With all the talk about the organization, it’s time Canadians knew what they’re all about.

The Canadian Security Intelligence Service is informally known as Canada’s spy agency. Created in 1984 with the passing of the CSIS Act in the aftermath of the Iranian Hostage Crisis and Quebec’s first sovereignty referendum, its official role is to investigate threats to Canadian security.

As per the CSIS Act, the following are considered threats to Canadian security:

  • Espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage.
  • Foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person.
  • Activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state.
  • Activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of the constitutionally established system of government in Canada.

Lawful protests, advocacy, and dissent are not considered threats to Canadian security as per the Act unless they are accompanied by the acts listed above.

CSIS is headed by a Director who is named by the Governor in Council – the Governor General on the recommendation of the Prime Minister, for a five year renewable term. As per the CSIS Act, no director can serve for more than ten years, a measure undoubtedly put in place to prevent corruption.

The current director of CSIS is Michel Coulombe, a former intelligence agent who was appointed by the Harper Government in 2013. He controls and manages and CSIS and all matters connected with it and he and his proxy are in charge of hiring CSIS employees.

Considering a Career?

While the RCMP has a long list of base qualifications such as health and psychological standards, visual and auditory acuity, and official language proficiency. CSIS’ requirements for employment seem much shorter and simpler.

In order to be considered for a position with CSIS, you need to be a Canadian Citizen eligible for Top Secret Security Clearance, have ten years’ worth of viable information – something that undoubtedly refers to employment, health, social services and financial records so you can be properly traced and vetted and have a valid permanent Canadian driver’s license for some posts. Detailed descriptions of various positions on CSIS’ careers’ website give greater insight into what’s needed to work for them.

Intelligence Officers are required to have a Bachelor’s Degree, three years of relevant experience, and be knowledgeable in the Service’s mandate and Canadian security threats as well as current events. They need to be good communicators verbally and in writing, analytical, adaptable, and sensitive to Canadian cultural mores – whatever those are, the website does not specify.

They also need to be willing to relocate anywhere in Canada or abroad depending on CSIS’ needs, be willing to travel and work irregular hours, and be without a criminal record. Though the CSIS doesn’t require bilingualism, knowledge of a foreign language is considered an asset.

Duties, Functions and Limits

The specific duties and functions of CSIS are set out primarily in the CSIS Act. Their primary role is intelligence collection and analysis, security screenings, and reducing threats to Canadian Security. Though the organization is widely perceived to be without limits, the law has many safeguards to keep it from overstepping its bounds.

Any measures taken by CSIS to reduce threats have to be proportional and reasonable to the nature of the threat as per the “reasonable availability of other means” to reduce it. They cannot take said measures if they will contravene the Canadian Charter of Rights and Freedoms or any other law. There is an exception to this rule, but it requires a warrant from a Federal Court.

CSIS is not allowed to cause death or bodily harm either intentionally or by criminal negligence. They are not allowed to obstruct, pervert, or otherwise impede the course of justice, and they cannot violate the sexual integrity of a person.

While CSIS can provide security assessments to the government, they cannot do so willy nilly. They are only permitted to provide security assessments with the permission of the Federal Public Security Minister, and if they want to provide provinces with assessments, that is only with the consent of the provincial governments.

Whenever CSIS gets in trouble they always claim there’s nothing wrong with what they do or refuse to do because of all the safeguards in place to prevent abuses. The problem is that because the organization slips beneath the radar of the average citizen, no one ever bothers to check how strictly CSIS’ safeguards are enforced.

With our neighbors to the south slowly slipping into the depths of hell, it’s time Canada checked itself and our agents to ensure our continued place as the world’s sober voice of liberal democracy and freedom.

* Featured image of CSIS Headquarters in Ottawa from dailytech.com

The holidays are finally over.

It started for most of us with a nerve-racking family dinner and ended with a New Year’s Eve party where we drank away the stress of having to spend too much time with our relatives. Many of us spent the eve of the New Year drunk and partying and it’s likely that at least a third of us engaged in some kind of behavior that night that we now regret. Most of this is not blackmail-worthy, but in a world where lives are ruined by crimes like revenge porn, it’s important to know what laws are in place to protect us.

Revenge porn is the publication of explicit images, videos, or films of a person without consent in a situation where the victim would have a reasonable expectation of privacy. Though revenge porn at its root is used to cause the victim distress, it’s often redistributed by some porn sites for commercial gain.

Fortunately, Canadian law is on it and has been working to tackle this crime.

Before 2014 the people in Canada who distributed intimate photos or videos of others without their consent could only be charged under the Criminal Code’s provisions on voyeurism, extortion, obscene publications, criminal harassment, defamatory libel, and in some cases child pornography. Unfortunately these laws have very specific requirements to get an indictment and conviction.

For example, extortion requires that the intimate material be used as a threat to force the victim to do something. Criminal harassment requires that the conduct make the victim fear for their safety or the safety of a loved one.

Sometimes charging people under these offenses worked, and sometimes it did not.

The people who drove Rehtaeh Parsons, a Halifax teen, to suicide in 2013 were charged with the distribution of child pornography. Parsons hung herself after photos of her being sexually assaulted by four boys circulated through her school resulting in texts and Facebook messages calling her a slut and soliciting her for sex.

Though none of the boys who assaulted her were charged with rape due to insufficient evidence, two of her attackers who filmed her later pled guilty to child pornography charges and were put on probation. Many agree this is hardly a sufficient punishment for people who drove an innocent young woman to her death.

Fortunately in 2014 the Canadian Criminal Code was amended to include article 162.1 regarding the unlawful publication of intimate images without consent.

It defines intimate images as a photo, film, or video where the victim is nude, exposing their genitalia, anal region, or breasts or is engaged in explicit sexual activity in circumstances where a person would have a reasonable expectation of privacy. A trip to the bathroom to use the toilet or shower is an obvious example of circumstances where most people would have a reasonable expectation of privacy.

The new law says that everyone “who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty.”

That means that it doesn’t matter whether the person transmitting the image or video intended to cause the victim harm. All the crime requires is that the person knowingly made the material available and they either knew or were aware of the possibility that the image or video was taken without the victim’s consent and distributed it anyway.

Those guilty of this offense are looking at a maximum prison term of five years. Or if they get a summary conviction, a maximum of six months in jail and/or a two thousand dollar fine.

The law limits the kinds of defenses one can use against such a charge. The motives of the accused are considered irrelevant. The only way to get out of a charge under this law is to either prove you didn’t do it, or prove that your conduct somehow served the public good but did not go beyond the minimum required to do so.

This defense was clearly added to the law to protect journalists and investigators in the execution of their professions. A journalist who snaps and distributes a photo of a politician with a sex worker when the politician is anti-prostitution could find himself charged under this act, but could conceivably argue that his actions were for the good of the public and not excessive.

If criminal charges are not laid in the face of the distribution of a person’s intimate images, in Quebec you can always sue the distributor.

The Quebec Civil Code (“the Code”) guarantees the individual right to privacy and protects people from invasions of their privacy without their consent.

As per the Code, the following are particularly considered invasions of privacy:

  • Entering your home and taking something
  • Intentionally intercepting or using your private communications
  • Appropriating and using your voice or image while you are in a private place
  • Keeping your private life under observation by any means
  • Using your name, image, likeness, or voice for any purpose other than the “legitimate information of the public”
  • Using your correspondence, manuscripts, or personal documents

If your privacy is violated in this way resulting in physical, material, or psychological damages, you can sue the perpetrator. The catch is that lawsuits are costly and invasive and it would mean going public with the extent of the violation you experienced.

The laws in Canada regarding revenge porn and privacy are not perfect, but they’re there. In 2017, let’s protect ourselves and keep the scum of society in check.

2016 is ending and we can collectively agree it’s been a shitty year. Cops are spying on journalists, our Prime Minister has turned his back on the young people who elected him, comedians are being punished for their jokes, and icons from Prince to Bowie to Muhammad Ali to Carrie Fisher have left us. In the legal world it’s been an ongoing ugly parade and with the year FINALLY coming to an end, it’s time for a recap of some of the major legal issues affecting us this past year.

Syrian Refugee Crisis

The ongoing crisis in Aleppo has led to tons of refugees fleeing Syria. Unlike the US where debates regarding the refugee crisis were fraught with concerns about terrorism and an emphasis on keeping victims of Aleppo out, the Trudeau government took the moral high ground and pledged to welcome twenty-five thousand Syrian refugees. The Canadian government ended up going above and beyond this pledge and have thus far taken in thirty-eight thousand seven hundred and thirteen Syrian refugees.

Trans-Pacific Partnership

On February 3, 2016, Federal Trade Minister Chrystia Freeland signed the Trans-Pacific Partnership agreement on Canada’s behalf. Canada’s participation in the treaty was negotiated by the Harper government before its colossal defeat by the Liberals in 2015. Whether Parliament ratifies the agreement thus legally binding Canada remains to be seen.

Uber Crisis

Montreal taxi protest (photo Chris Zacchia)

Quebec cities were rife with cab drivers protesting Uber, a car service that is not bound by the ridiculous and expensive rules that must be obeyed by taxi drivers and company owners that specify everything from pricing and car specs to what the driver wears. In September 2016 Uber made a deal with the Quebec government which included Uber acquiring 300 taxi permits and obliging drivers to get a class 4C license and insurance. With the cab industry in Montreal already flooded, it remains to be seen whether this tentative deal will create peace between taxi companies and Uber.

Panama Papers

In April 2016 the decryption of the Panama Papers revealed the Panamanian law firm Mossack Fonseca to have helped many of the world’s wealthiest people hide their assets from governments. Those named included terrorists, CEOs, politicians, and athletes. Canadian tycoon and political wannabe Kevin O’Leary is dismissive of the papers, possibly because he too is hiding wealth from Canadian taxpayers for his own benefit.

Anti-Vaxxers and Naturopathic Remedies

David and Collet Stephan were convicted of failing to provide the necessaries of life for failing to get their son medical attention for bacterial meningitis. As the Stephans are anti-vaxxers distrustful of modern medicine, their 19-month old boy Ezekiel was instead treated with echinacea, garlic, onions, hot peppers and horseradish. By the time he was brought to a hospital it was too late and the boy died. David Stephan has since been sentenced to 4 months in prison while Collet to 3 months of house arrest. They have been ordered to bring their kids to a medical doctor once a year and a nurse every 3 months.

OQLF

Quebec Culture Minister Hélène David announced modifications to Quebec language laws that would force businesses with trademarked non-French names to add French to their signs. Though the proposal is clearly in retaliation for the government’s legal defeat against Best Buy in 2014, it remains to be seen whether the changes will go through in a province exhausted and fed up with language and cultural debates.

Ghomeshi Verdict

In May 2016 former CBC radio host Jian Ghomeshi signed a peace bond to settle a sexual assault trial. Though for many this is a slap on the wrist, his former victim Kathryn Borel celebrated the bond as a public acknowledgment of Ghomeshi’s guilt. The 12 month long bond guarantees Ghomeshi will go to prison should he violate its terms and does not limit the prosecution from going after him for other sexual assaults.

Mike Ward

Mike Ward (photo Cem Ertekin)

In July 2016 Montreal Comedian Mike Ward was ordered to pay $42 000 to a disabled kid and his mother for making fun of him in one of his jokes. The verdict, which Ward has sworn to appeal, has turned the Quebec Human Rights Commission from a means of social justice to one of censorship. No one has questioned why the kid went after Ward and not the bullies who used his joke to hurt him, but it’s likely due to Ward’s celebrity status and wealth.

Pitbull Ban

Following the death of a Pointe-Aux-Trembles woman after she was mauled by a dog, the City of Montreal has adopted a ban on dangerous breeds. The ban is hugely unpopular and has resulted in protests, the latest being the SPCA’s refusal to take in dogs following the Quebec Court of Appeal’s reinstatement of the ban after the Superior Court overturned it.

STM Fines

On September 7, 2016 the Municipal Court of Montreal ruled that fines given by STM rent-a-cops to people unable to produce their transfer is unconstitutional. The STM has vowed to appeal the decision.

Judge Robin Camp

In November 2016, Judge Robin Camp was recommended for removal from the bench by the Canadian Judicial Council following an inquiry into his conduct during a rape trial. Though the judge promised to reform, his behavior demonstrated such contempt for victims of sexual assault the Council ruled no amount of sensitivity training would repair his damage to the judiciary’s reputation.

Seafood and Civil Liability

In May 2016 Simon-Pierre Canuel ingested salmon at a bistro in Sherbrooke sending him into anaphylactic shock. He is now suing the restaurant and waiters for $415,000 though his negligence regarding his food allergy and rumours that he has tried to scam restaurants in the past make it unlikely he will get the full amount.

This past year has been full of legal debates that are as fascinating as they are numerous and outrageous. For every dispute brought before courts and councils we come closer to what we all strive for: a just society.

In 2017, let’s aim for just that.

On May 29, 2016 Simon-Pierre Canuel walked into Tapageur Bistro in Sherbrooke, Quebec with his partner and ordered beef tartare. He told the waiter, Julien Vézina, that he had a seafood allergy and not to bring him any fish.

Canuel was brought a dish that allegedly looked like beef in the restaurant’s poor lighting and began to eat it. The dish he ate was actually salmon, and Canuel went into anaphylactic shock. He was brought to the hospital where he fell into a two day coma after suffering a heart attack as a result of his allergic reaction.

In the aftermath of the event, Canuel’s waiter was arrested for criminal negligence. Quebec’s Director of Criminal and Penal Prosecutions opted not to press charges, having decided that the evidence indicated it was not criminal negligence on the part of the waiter. On December 16, 2016 the CBC reported that Simon-Pierre Canuel intends to sue the waiters and owners of Tapageur Bistro for $415 000 for the physical and psychological damage he suffered as a result of the incident.

According to his lawyer, the incident made Canuel’s heart so weak he couldn’t exercise until July. He claims that he suffers from anxiety and sleeping problems and has developed a food phobia. The damages Canuel is claiming consists of $390 000 for himself and $25 000 for his partner who was present when the incident occurred.

In order to understand how this lawsuit will play out, we need to talk a little about how civil liability and lawsuits work in Quebec.

Simon-Pierre Canuel (image: CBC)

Civil liability is covered under the Quebec Civil Code. As per the Code, every person has to abide by the rules and practices of conduct so as not to cause injury to another person. Where the person fails to do so and causes injury to another by such a fault, they are bound to make reparations for the injury, be it physical, moral (psychological) or material.

In order to successfully sue someone, the plaintiff in a civil case has to prove a direct link between the damages they suffered and the fault, if any, of the person(s) they are suing. The burden of proof is not as severe in civil suits as it is in criminal cases.

In criminal cases, guilt must be proven beyond a reasonable doubt. In civil cases, liability must be proven based on a balance of probabilities, meaning the court does not have to believe liability beyond a reasonable doubt, only that liability is more likely than not.

In order to get out of liability, the defendant has a few options. First, if the incident was a case of “force majeure”, meaning an unforeseeable inevitable or irresistible event like a lightning strike, the person is not liable. The defendant can also evade liability by proving they are not at fault or proving the plaintiff did not suffer any damages or greatly exaggerated the damages they did suffer.

The way the court decides on the defendant’s arguments is via the reasonable person test. The test is the asking of what precautions an average, reasonable person would have done in the same situation to avoid the damages.

Public opinion about Simon-Pierre Canuel’s case is divided and it’s easy to understand why.

The day Simon-Pierre Canuel walked into Tapageur Bistro with his partner he, by his own admission, left his EpiPen – the first line of defense against a potentially fatal allergic reaction – in his car. Food Allergy Canada, an organization that educates, supports and advocates for the needs of people with potentially fatal food allergies said in an op ed piece in August 2016 that mistakes can happen and that leaving his EpiPen in the car was one such mistake. They push the classic guilt trip helicopter parent argument:

“What if it was you or your child?”

This argument does not work because Simon-Pierre Canuel is NOT a child. He is a 34 year old adult who has presumably lived with a potentially fatal food allergy for many years. A reasonable person would suspect any food he did not prepare or supervise the preparation of. A reasonable person with a potentially fatal food allergy would have kept their EpiPen on them at all times.

Canuel claims he could not tell the dish he was served was fish due to the restaurant’s poor lighting. Being unable to see a food item does not necessarily mean you cannot tell it’s something you’re allergic to.

Salmon and beef have very different textures and very different smells. All it would take to tell one from the other is to move the food around with a fork and/or smell it. A reasonable person would not have blindly tasted his food, and could have had his dinner guest taste it for him just to make sure it was safe.

Simon-Pierre Canuel by all accounts did none of those things and a reasonable adult would know that restaurants screw up orders all the time. The only thing Tapageur Bistro is guilty of is screwing up his order.

If the restaurant is indeed at fault for serving Canuel a dish that almost killed him, Canuel is equally responsible for not taking the reasonable precautions an individual with severe food allergies would have taken when dining out. Fortunately, civil liability law in Quebec allows liability to be shared with several people including the victim.

The fact that prosecutors chose not to go after the waiter suggests that there was no liability here, just another restaurant employee that accidentally messed up an order. If someone with severe allergies is allowed to make a mistake of this magnitude, restaurants should be given some leeway too.

Does Canuel have a chance of winning his lawsuit? Maybe, but he’s unlikely to get all the money he asked for.

That’s just unreasonable.

* Featured image: estrieplus.com

In the last few months the animal rights debate in Quebec has been dominated by Montreal’s proposed pit-bull ban. One side argued that animals are not dangerous if they are raised right, while people in favor claimed it was necessary to protect humans from dangerous dogs. With all the discourse about whether we can protect humans from animals, it’s time to talk about the laws that protect animals from us.

On December 8, 2016 the Quebec Court came to a unique decision. Over the course of ten years, the SPCA had seized four dogs from the Alain Marchand, a man in Outaouais. The dogs had been neglected, abused and malnourished.

Marchand was charged under Quebec’s Animal Health Protection Act and the court undoubtedly realized he could not be trusted with a dog and fined him eighteen hundred dollars but also, for the first time in Quebec legal history, banned him from owning animals. Criminal charges of animal cruelty against Marchand are soon to follow.

Quebec Animal Health Protection Act

The Quebec Animal Health Protection Act has the goal of ensuring “an appropriate level of animal health protection is maintained.” The law establishes standards of hygiene, care, and disease control of livestock and domestic animals.

Specific rules for dogs and cats are established in the Regulation Respecting the Safety and Welfare of Cats and Dogs, which was enacted to work in conjunction with the Animal Health Protection Act. Its violation can result in the penalties set out in the Act, which range from two hundred and fifty dollars to two thousand four hundred and fifty dollars for a natural person (first offense) and six hundred and twenty-five dollars to six thousand seventy five dollars for a legal person such as a business.

The Regulation establishes the standard of care for cats, dogs, and their hybrids. The rules set out not only cover the owners of pet shops, breeding operations and obedience schools, but also set standards that must be obeyed by individual pet owners.

Dog and cat owners have to provide food and drinking water for their animals. The water has to be clean and free of contaminants like urine, feces and kitty litter. Snow and ice don’t count as sources of drinking water.

The animals have to get their biological needs met as per their species, size, growth stage, age, level of physical activity, state of health, whether they are gestating or lactating, and as per their ability to adapt to different levels of heat or cold.

Dogs and cats have to have access to a rest area at all times that is clean, dry, comfortable, and large enough for the animal to be able to lie on its side with its legs extended. This rest area has to provide shelter from the elements that could risk the animal’s health or cause it stress. Such elements include bad weather, sun, drafts, loud noises, and harmful gases.

Image via WikiHow Creative Commons

If you have a dog you want to keep mostly outdoors, the regulation restricts what kinds of animals can be kept mostly outdoors and under what circumstances. Only animals whose specific structural features, age, health, coat and who have the ability to adapt to heat or cold in such a way as to be protected from weather conditions can be kept mostly outside.

If the owner or caretaker of the animal doesn’t know the adaptability level of the animal to be kept outdoors, they have to plan for a gradual acclimatization period. The animal has to have a sturdy shelter made of durable non-toxic materials of a decent size to allow it to keep warm and protect it from the weather.

The regulation also covers the rope or chain used to keep an animal tied up outside, as well as the collar an animal wears. The rope or chain cannot cause discomfort for the animal due to its weight. It cannot be liable to get stuck or shortened by wrapping itself around an object, and has to allow the animal to safely move around and reach its food and water. Collars are not allowed to hurt the animal or restrict its breathing.

Muzzled animals cannot be left unattended.

The Canadian Criminal Code covers the worst animal cruelty offenses, and unlike the Quebec law and regulation, the penalties are not just financial but can also include a prison sentence.

Criminal Animal Cruelty Offenses

There are three types of animal cruelty offenses in the Criminal Code.

The first is the act of Causing Unnecessary Suffering which includes willfully causing or permitting unnecessary pain, suffering, or injury to an animal, willfully giving an animal or bird poison or harmful drug or substance, and even getting money for promoting or arranging hunts where captive birds are liberated for the sole purpose of being shot. Penalties for this kind of offense can be up to five years in prison if you’re indicted or up to eighteen months in jail and/or a maximum fine of ten thousand dollars if you get a summary conviction.

The second type of animal cruelty offense is Causing Damage or Injury. This entails damaging animals while driving them through willful neglect, and willfully abandoning an animal or failing to provide food, water, shelter and care. This offense can result in up to two years in prison or a maximum fine of two thousand dollars and/or six months in jail.

For some kinds of these first two offenses there’s a legal presumption that in the absence of evidence to the contrary, the person is presumed guilty, a reversal of the innocent-until-proven-guilty standard in criminal law.

The third type of offense is about cockpits and punishes the owner of a location used to hold cockfights. The penalty can be up to five years in prison or if a summary conviction, a ten thousand dollar fine and/or up to eighteen months in jail.

With all the talk about how humans need to be protected from animals, it’s time we look back at how to protect animals from humans. People can yell and write letters and picket, but dogs and cats can only scratch, bite, growl, bark or meow in order to be heard.

It’s time we remember that we can fight back better than they can and protect them for the vulnerable beings they are.

* Featured image: blacklemag.com Creative Commons

On November 29, 2016, the Canadian Judicial Council (CJC) made the recommendation women across Canada were hoping for. They recommended that Justice Robin Camp, the Alberta judge who acquitted a rapist in 2015 after making comments to the victim during the trial such as “Why couldn’t you just keep your knees together?” be removed from office. In their inquiry report, the CJC found that Camp had made comments that suggested an aversion to laws enacted to protect the vulnerable and promote equality, and that the damage he’d done to people’s faith in our judicial system could not be fixed by sensitivity training and promises to reform after the fact.

This article, however, is not about Robin Camp. There is no disputing that Camp’s conduct during this trial revealed him to be wholly unfit to be a judge in a society where gender equality is constitutionally guaranteed and that a recommendation for removal from the bench is him getting off light in the eyes of many victims of sexual assault.

This article is about the judiciary, the Canadian Judicial Council, and the process by which Canadians hold federal judges accountable for their behavior on the bench.

Removing a Judge

One of the tenets of democracy is the existence of an independent judiciary. For the judicial system to work it must act independently of the influences of the executive and legislative branches of government, as embodied in Canada by the Prime Minister and his cabinet and the House of Commons and Senate.

The way our founders attempted to ensure this independence was by putting rules in our constitution that require that judges be appointed not elected, and once appointed, they get to keep their position “on good behavior” until the age of retirement.

Before the creation of the Canadian Judicial Council in 1971, the only way to get a federally appointed judge removed from the bench was to have the government recommend his removal to the House of Commons and Senate. That all changed in the late sixties with the Leo Landreville scandal.

Leo Landreville was a former Sudbury mayor who’d been appointed to the Supreme Court of Ontario. While he was mayor, he got involved in some shady stock dealings that came to light while he was a judge and led to criminal charges including corruption. The ensuing scandal prompted Lester B. Pearson to recommend his removal from the bench to Parliament in 1967, and was one of the events to spark the creation of the CJC.

The Canadian Judicial Council

The Canadian Judicial Council was created with the goal of promoting efficiency, uniformity, and accountability in Canada’s Judicial System. It consists of thirty-nine members and is led by the Chief Justice of Canada’s Supreme Court, currently the Right Honourable Beverly McLachlin. The Council meets twice a year and while their primary responsibility is to set policies and create tools that allow the judicial system to work better, it has the added task of investigating complaints against judges.

The Council can only investigate complaints against federally appointed judges. They cannot investigate or overturn a judge’s decision in a case. To get a judge’s decision overturned, you have to go through the appeals courts. What the CJC can do is investigate a judge’s conduct, but to get them to do that, you have to follow the complaint process.

As per the Judges Act, the CJC must start an inquiry of a federal judge upon request by the federal justice minister or the attorney general of a given province. The Council can also choose to investigate any other complaints or allegations made against a judge. In the case of Robin Camp, for example, the complaint was initially made by four law professors.

Unlike many other government applications, a complaint to the CJC does not require specific forms, there is no application fee and no deadline. All you do is submit a complaint in writing about a named federally-appointed judge about their conduct and not their decision(s) via snail mail.

The Canadian Judicial Council then reviews the complaint and where necessary, conducts an inquiry and releases a report. In the report they can recommend that the judge remain on the bench, be removed from the bench, be granted paid leave, or if the judge resigns before the age of mandatory retirement, the Council can recommend they continue to get an annuity.

If the Council recommends the judge’s removal, the Federal government can then go to the House of Commons and Senate within fifteen days of the removal recommendation and publicly remove the person from office. Federal judges can only be removed for the following reasons:

  • Age or infirmity
  • Having been guilty of misconduct
  • Having failed in the due execution of that office
  • Having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office

Justice Camp was recommended for removal from the bench for misconduct and the fact that it happened during a rape trial amplified the magnitude of his actions. Rape trials are widely and justifiably believed to be tainted by bias and prejudice so the appearance of impartiality and fairness in the presiding judge is extremely important.

A judge who seems to favor one side over the other from the get-go damages society’s faith in the fairness of our judicial system, and a lack of faith in the law and the people who interpret and enforce it will ultimately lead to vigilantism and anarchy.

The Canadian Judicial Council is an important check on federal judges who may take for granted that their jobs are secure in order to ensure their independence. It’s important but it’s not perfect.

Since its creation only four judges have been recommended for removal by the Council in recognition that judges need freedom to criticize the law, talk to witnesses and lawyers, and conduct proceedings in order to make sure justice is served.

Neda Topaloski, one of the FEMEN activists who disturbed the 2015 Montreal Grand Prix, had her second and final day in court today. As per FEMEN’s usual tactics, Topalski protested bare-chested during the high profile event, and in a national first, she is now facing criminal charges for it.

“We’re in Canada and there’s no precedent for such cases. Our bodies are our banners for our values and ideas. It’s the first time there is an attempt to criminalize them,” explained Topaloski in a phone interview with FTB on Thursday morning. According to her, it’s the state of democracy and freedom in Canada that is at stake in this trial.

Topaloski was arrested on June 4th 2015, after she appeared topless in front of one of the showcased cars on Crescent Street and yelled “Montreal is not a brothel!”

She was referring to the sexual tourism that doubles or triples every time the high profile Grand Prix is organised in Montreal. She was initially charged on four counts, but the charges of indecency and exhibitionism were dropped last week. The crown is thus going forward with charges of mischief and disturbing the peace.

Topaloski claims FEMEN’s actions are a non-violent form of political expression and should not be criminalized. “Seeing activism as disturbance of peace is absolutely perverse, because expression doesn’t trouble peace, violence troubles peace,” she argued.

She was also accused of mischief. The crown alleges she dented the hood of the car she was leaning on during the stunt. The activist says that this is “absolutely impossible.” She notes that the Grand Prix is always full of pictures of women sitting on cars for publicity purposes and that none of them faced such accusations.

The Grand Prix: “A powerful lobby”

This is the first time a FEMEN protest has resulted in criminal charges in Canada, despite several public actions of the same sort. Topaloski believes that she is only being prosecuted this time because She managed to “sully the image of the Grand Prix.”

“It bothers this powerful lobby and it is because of their pressure that we are charged this time, but not the time that we were in the Canadian parliament, nor the time we were at the National Assembly in Quebec.”

In April 2015, Neda Topaloski interrupted a press conference about Law 20 at the National Assembly. She irrupted topless on stage to protest against the new law’s failure to prioritize free and accessible abortion.  She had done a similar act on Parliament Hill in Ottawa to protest C-51 just a few weeks earlier.

Allegations of excessive use of force

On Wednesday, Topaloski’s lawyer immediately moved to have all the charges thrown on the grounds that the arrest was unlawful. She argued that the Grand Prix’s private security made an excessive use of force.

“It was more than an arrest; I was dragged on the floor, still topless, they pulled my hair out…” recalls Topaloski. She highlights that their behaviour was wildly different from what she has seen from police officers in similar situations.

“[The security guards] were trying to prove that they were the guys in control of the situation and of the value of women. They used that situation to abuse, physically and violently.”

A video of the arrest was submitted to the court as proof. Although she is not sure of this move’s potential success, Topaloski explained that it is important for her to “shed light on those who perpetuate violence rather than those who protest for equality and are repressed and targeted by violence because of it.”

The court will probably not reach a verdict today, but Topaloski says she trusts that “common sense” and “constitutional rights” will prevail: “I have the law and the constitution on my side. Therefore, I hope that the judge will be able to recognize this.”