The Internet Is Here To Stay!

Earlier, something extraordinary happened: there was a paperless revolution. Across the Internet many major websites did the unheard of and went “dark,” meaning the websites were unavailable to users. Although unavailable, these “dark” sites had a message to their madness: Stop SOPA/PIPA. SOPA is an acronym for the Stop Online Piracy Act and PIPA stands for Protect IP. Both USA Bills are purportedly for the protection of intellectual property rights, but in reality the Bills are much more.

SOPA, in particular, gives broad authority to shut down websites, even foreign websites, without notice for “committing or facilitating” copyright infringement. The overreach of the legislation has the potential to adversely impact many websites we read and use on a daily, maybe even hourly, basis such as YouTube, Twitter, Open Culture, and Brain Pickings. For further explanation of the issues read the articles here and here. For an excellent understanding of why Canadians should be worried, read this blog by Michael Geist.

Of course, in Canada the Copyright Act protects copyright material from being distributed and published on the Internet without the copyright holder’s permission. However, there is presently no formal policing of the Act and it is the copyright holder’s responsibility to claim the right and seek enforcement. Interestingly, besides the Copyright Act, which has its main objective to protect intellectual property, there are other Canadian statutes in which the Internet is referred to as a tool to enhance, not detract, from the valid objective of the legislation.

For example, in the Canadian Environmental Assessment Act, which provides a mechanism for determining the efficacy of projects affecting the environment, a number of sections require the Canadian Environmental Assessment Agency to “establish and maintain an Internet site to be generally accessible” in order to provide public access to records and reports related to assessments. Thus, this remarkable piece of legislation provides transparent governance through the best possible platform: the Internet, which permits the greatest number of people the fullest access to possibly life-changing information. There are other Acts, which also require some form of Internet access as in the Civil Air Navigation Services Commercialization Act. Instead of restricting access, the Government is embracing it with this, dare I say, “anti-1984” legislation. Yes, we are out of the eighties and there the Internet shall stay!

Of course, the idea of restricting the use of information on a platform dedicated to global dissemination of ideas is not only counter-intuitive but also highly ironic. If the Information Highway cannot carry information, then what do we call it? Somehow the Information Cul de Sac just doesn’t cut it. Certainly, protection of intellectual property is valid but let’s hope we can accomplish protection and increase our worldly knowledge at the same time.

Public Disasters and the Criminal Law

The tragic and unfortunate Costa cruise ship disaster is a good example of how popular social activities, which are inherently legal and legitimate, can turn, on a dime, into a textbook criminal case. It is no surprise the Captain of the ill-fated ship is being investigated for a number of offences, including manslaughter. Indeed, after reading the victims’ accounts of the disaster, it should be expected. But caution is required when demanding “justice” for public disasters through the aegis of the criminal law.

Usually, government uses regulation to control legitimate and desirable activities, which if carried out improperly or without due care, would result in harm to individuals or the public at large. Any breach of regulation may result in a charge under the statute, which is then known as a public welfare offence. Thus, our local dry cleaner, which provides us with clean shirts and starched collars, must conform to government rules regarding the safe and proper use and disposal of chemicals.

When the failure to fulfill regulatory requirements is significantly outside of the public welfare scheme, the conduct becomes criminal and must be framed by the Criminal Code. When the Exxon Valdez struck a reef in 1989 and spilled 11 million gallons of crude oil into the Alaskan waters, the criminal law was invoked. In 2000, the Walkerton tainted water scandal, which left seven people dead and scores ill from e-coli­ bacterial ingestion, resulted in criminal charges of public endangerment, fraud, and breach of public trust against the two town managers. So too, when the British Columbian Ferry, Queen of the North, ran aground in 2006 causing both an environmental and social disaster (2 people died), the navigation officer, who had control of the ship at the time, was charged with criminal negligence causing death.

However, when these public welfare matters are criminalized, they are treated like any other criminal case. The conduct, which initially arose from legal activities, becomes part of the criminal law nomenclature as it is labeled as manslaughter, criminal negligence, or even murder. By labeling and identifying this conduct as criminal, the matter leaves the public opinion arena and enters a legal one where the case must adhere strictly to all relevant legal principles. Consequently, what appears to be an open and shut case of manslaughter may, in a courtroom, deteriorate into a plea to a lesser charge or even an acquittal.

Not only are legal requirements at issue in such a case, but other factors may impact the prosecution’s ability to prove a case beyond a reasonable doubt such as the credibility of witnesses, the conduct of the police, and the availability of institutional resources.  Admittedly, these factors are present when dealing with any criminal case, but when dealing with a public welfare crime, it is very difficult to prove the essential fault element or required criminal intention, which typically deals with a failure of a person to act in accordance with a required standard of care.

In a public welfare case the alleged offender is under a duty or standard of care, which would require him to fulfill his duties and responsibilities with all due care and attention. For a Crown to establish a failure of care, to the criminal standard needed for conviction would require evidence relating to the standard of care and a detailed examination of what those duties and responsibilities are in the circumstances.  Prosecutors would need to delve into corporate culture and industry standards. As a result, such trials can be lengthy and complicated with unsatisfying results.

That explains why the Exxon Valdez’s Captain, charged originally with criminal mischief, operating the Exxon Valdez while intoxicated, and reckless endangerment, and a misdemeanor charge of negligently discharging oil, was only convicted of the misdemeanor and was sentenced to $50,000 restitution order and 1000 hours of community service. It also explains why the town managers in the Walkerton case pleaded guilty to the lesser offence of common nuisance with one accused receiving a conditional sentence of nine moths and the other, a one-year jail term. Finally, it explains why the BC ferry navigator, Karl Lilgert, has yet to be tried on his charges, although the incident occurred in 2006. Lilgert’s preliminary hearing was heard in May 2011 and he is now in the Supreme Court system as he awaits a jury trial.

So, for those awaiting a speedy outcome from the Costa tragedy, or indeed, any other public disaster, they will be disappointed. For the few who actually stick with the case to the bitter end, the result may be even more socially disconcerting. All of this may lead us to wonder if our criminal law can appropriately respond to crimes of such epic proportions and make us re-consider if it even really should in the first place. The problem is: what’s the alternative?

Update on Sunday, January 15, 2012 at 4:28PM by Lisa A. Silver

For more discussion on the criminalization of public welfare offences and the use of the civil sanction as an alternative to the criminal justice system, read my Masters Thesis.

Tracing The Presumption of Innocence Through A Survey of Supreme Court of Canada Cases

In yesterday’s blog, the presumption of innocence, as a legal principle, was traced from its seemingly innocuous origins as a rule of evidence in civil cases to the status of a fundamental, constitutionally entrenched, principle of the criminal law. Today, I will detail how the presumption of innocence took on such elevated standing through a brief survey of early Charter and pre-Charter Supreme Court of Canada cases.

On a quick review of the Supreme Court of Canada cases discussing the presumption of innocence, it is the 1985 SCC reference case of Re B.C. Motor Vehicle Act, which explicitly crystallizes our present concept of the presumption of innocence as a fundamental principle of the criminal law and as a fundamental societal value. Justice Lamer described the presumption as not just a procedural tool but also as a substantive concept which “has both a societal and an individual aspect and is clearly fundamental; to our justice system.” The Charter’s influence in protecting such an expansive view of the presumption, thereby making the principle a right, is evident in other early post-Charter cases on the issue, such as the earlier case of Dubois in 1985, Oakes in 1986, and Whyte in 1988.

As an aside, it is no surprise that it is Justice Lamer who gives the presumption of innocence such an expansive and meaningful definition. Prior to his judicial appointments, Antonio Lamer was the Vice-Chairman of the Law Reform Commission of Canada (LRCC) in 1971 and Chairman thereof in April 1976 at a time when the LRCC was actively involved in shaping the jurisprudential landscape of the law.

In terms of pre-Charter, although Justice Estey, dissenting in the entrapment case of Amato in 1982, called the presumption of innocence a “fundamental doctrine,” there is little of this nomenclature in earlier cases. For example, in the 1969 Lampard case, the presumption of innocence is merely called “rebuttal,” hardly a powerful descriptor of the “cornerstone” of criminal law. Other pre-Amato cases characterize the presumption in the same manner: as a presumption, which ceases if the Crown can prove guilt beyond a reasonable doubt. Even in some earlier cases, the presumption is referred to as the “general presumption of innocence,” again a thoroughly unsatisfactory way of describing a constitutionally entrenched right. Interestingly, in all of these cases, the presumption is an adjunct to the burden of proof.

Finally, consistent with Fletcher’s theory of the origins of the presumption in English civil law, is the 1883 SCC case of McRae v. White. The case was one of unjust and fraudulent preference in an insolvency action. Although a civil suit, the case does have shades of fraudulent and therefore criminal intention, but the result is based upon a failure of the plaintiff to satisfy the onus as required by the Insolvency Act of 1875.

In other words, the plaintiff could not rebut the negative: that a man is presumed to fulfill his legal obligations. In this case, the defendant, in good faith, took on debt with the honest belief he would fulfill his obligations. The plaintiff was unable to establish otherwise. Admittedly, there is no mention of the actual phrase “presumption of innocence,” but the headline of the case reads “Insolvent Act of 1875—Unjust preference—Fraudulent preference—Presumption of innocence.”

Clearly, the presumption of innocence has matured into a much more powerful concept than originally imagined. This is so, at least in the legal arena. In my final posting on the issue, tomorrow I will discuss the international development of the presumption with an additional look at the historical non-legal usage of the concept.

The Presumption of Innocence: The Making of a Principle

The presumption of innocence is at the heart of our criminal justice system. As a cornerstone of criminal law principles, the presumption of innocence guarantees a fair trial for all. By ensuring only those individuals who are found guilty will be punished, it protects the vulnerable individual from the awesome powers of the State. It is indeed a fundamental principle, constitutionally entrenched in our Charter, and an integral part of our rule of law.

As important as this principle is to our concept of justice, the presumption of innocence has become much more than a legal tool; it has become part of the fabric of our society. Today, every citizen is aware of the presumption of innocence in a criminal case. This principle has transcended the legal arena to become one of our society’s fundamental values. It is not only a value understood by all but it is part of our culture. It can be found in journalism, literature, movies, and television.

Yet, historically, according to academic scholars, the presumption of innocence was not a fundamental principle but a general rule of evidence used in civil cases. In a series of articles, George Fletcher, a well-known scholar now Cardoza Professor of Jurisprudence at Columbia Law School, maintained the presumption of innocence did not become part of the common law nomenclature until the mid-1800s.

In fact, the concept of the presumption arose from a series of civil cases in the early 1800s wherein the court applied the common sense evidentiary rule that a man (yes, this is the early 19th century) is presumed to fulfill his legal obligations. Thus, if a plaintiff is alleging the negative situation, that the defendant did not fulfill his legal obligation, then the plaintiff must prove otherwise. Only later, did this evidentiary rule apply to criminal case and then became, what we call, the presumption of innocence.

According to Fletcher, even the core concept of the burden of proof in a criminal case, which requires the Crown to prove guilt beyond a reasonable doubt developed separately from the presumption of innocence and only later, in the 1850s, did these two principles become connected. In the Commonwealth, the ultimate articulation of this connection is found in every first year law student's curriculum: the House of Lords case of Woolmington v. D.P.P from 1935. In this seminal case, Lord Sankey famously describes the presumption of innocence and the burden of proof in a criminal case, which is to prove the crime beyond a reasonable doubt, as the "golden thread...woven deep into the fabric of our law."

In the Oakes case, Chief Justice Dickson waxed eloquent on this dual concept and found the presumption of innocence essential to society as it "confirms our faith in humankind; it reflects our belief that individuals are decent and law‑abiding members of the community until proven otherwise." It was indeed the Charter which elevated and crystallized the presumption of innocence as the fundamental concept of our criminal justice system.

The Art of Taking (And Giving) Art

This morning a crime was committed in Greece. It was a theft, which by Canadian standards is not a shocking crime. Nonetheless, the incident made international headlines. Why the notoriety? The theft was no run of the mill affair, but a sophisticated art theft from the National Art Gallery in Athens. Three paintings, of immense historical and intrinsic value, were taken: Female Head painted by Pablo Picasso and donated by him in commemoration of Greece’s role in World War II, Piet Mondrian’s Mill, and a 16^th century sketch by Caccia.

The theft was reminiscent of many such art heists, such as the 1911 taking of the Mona Lisa from the Louvre and the infamous September 4, 1972 theft of 18 paintings and other artifacts from the Montreal Museum of Fine Arts. Although the recovery of such stolen art is low, the Mona Lisa was returned two years after the fact. Sadly, only one of the 128 paintings taken from the Montreal museum has been recovered to date. It seems that at least in the Art world, crime does pay.

Theft for profit is one matter but objects taken during wartime is another matter of concern. The recovery of art works plundered by the Nazis is still ongoing. George Clooney is presently working on a dramatization of the Monuments Men, a group of art experts who assisted in locating and identifying stolen artwork found by the Allied operation after the end of the war.

Such recoveries can be complicated by the difficulty in tracing the art back to the original owners. Even if the artwork is traceable, many of the new owners dispute the return on the basis they purchased the art in good faith without knowledge the item was stolen. The result is lengthy litigation oftentimes involving numerous parties in an array of international courts. 

In 1998, The Unites States government together with the United States Memorial Holocaust Museum sponsored an international conference on Holocaust-era assets. The conference heard from a number of scholars working in the area of stolen artifacts and art resulting in the creation of guidelines to assist in the return of the objects. The United States created a searchable database to assist museums in detecting the stolen items. However, a recent follow-up study has shown slow progress in identifying the suspect objects.

There are times, however, when art can be “legally” taken as in the case of an Australian hotelier who, as part of a grand marketing scheme, is counting on their guests to commit, well, grand larceny. This “contest” allows any registered guest, who can successfully steal the Banksy art piece from the hotel wall, can keep it.

Bansky, of course, turns the question of art theft on its head when in 2004, he went into the Louvre and hung his version of the Mona Lisa. Which leaves us to ponder this question: is it illegal to bring your own art into an art museum or is it just another form of philanthropy?

Update on Monday, January 9, 2012 at 5:12PM by Lisa A. Silver

Another question: is it theft if a Banksy graffiti is taken off a public wall?