The Canadian International Law Students’ Conference

Keynote speaker, Alan Kessel.

The student-organized conference–a joint initiative between the Osgoode International Law Society of Osgoode Hall Law School and the International Law Society at the University of Toronto, Faculty of Law–presented a range of sessions on different aspects of and issues in International Law.

The career opportunities panel presented a wide array of paths that could be taken and which might lead to practice in International or Transnational law, from practice within private law contexts and via firms, to making use of legal training via various government-based and international bodies, as well as via NGOs. A second panel featured talk about international justice, with regard to the International Criminal Tribunal for the former Yugoslavia and other contexts of transitional justice. Keynote speaker Alan Kessel, who is the Canadian Legal Advisor in the Department of Foreign Affairs and International Trade, discussed some of the challenges faced by the DFAIT on a daily basis. The afternoon sessions featured talks on maritime piracy, international banking and constitutional design.

The organizers did a fabulous job, though some of the sessions felt a little long. While some of the sentiments expressed were not without controversy, it was an interesting, engaging and thought-provoking way to spend a Saturday, and I was glad to have made it out for the event.

Susan

Sent from my mobile, so please pardon any typos!

Speaking of law…

First year law school, also known as 1L, can be a trial by fire. It can be stressful, intense and even overwhelming at times. But one of the joys that I discovered, even during the frantic weeks and months leading up to exams, was that of the law itself, in all its endlessly fascinating and often bewildering complexity.

I had the opportunity to recap my impressions and revisit those thoughts and reflections today, when I delivered a talk on my experiences in first year. Notwithstanding the facetious title, it was truly a shaping and engaging experience.

Postcards from 1[hel]L: my first year at law school

I am sitting in a room of dilapidated elegance. Morning sunlight slants through the bay windows along one wall, illuminating the faded frescoes and elaborate crown moldings around the ceiling. I am seated, along with sixteen other students, around a heavy wooden banquet table. It is an exquisitely evocative setting—the kind of moment that is steeped with a golden nostalgia even as I am living it.

It is my second week of law school, and after a week of frantic socializing during orientation, we have finally settled into our regular class schedule. Readings have been assigned and we have begun to puzzle our way through the peculiar, often arcane and labyrinthine phenomenon that is case law.

A bespectacled professor with a kindly, vague expression and curly grey hair beams at me from the front of the room. I had met him during orientation week, and he had seemed sweet, but a little absent-minded.

I now know otherwise. He has just finished dissecting my argument with a surgeon’s precision, extracting each of its internal organs in turn, casually remarking on the fatal flaws that make it untenable, and then discarding it.

Don’t get me wrong–this isn’t like the Paper Chase, where the daunting Kingsfield uses his acidic wit to humiliate a student in front of all of her peers. No—this is a kinder, gentler law school. This particular professor–who is one of the top scholars in the world in his specialization, a man whose theories are as elegant as they are controversial–is unfailingly kind to his students, but simultaneously ruthless in his attack on their arguments.

During those moments, even as my fellow students eye me with sympathy—knowing full well that their turns will come—I feel strangely exhilarated. It takes me a moment to realize that this is a distinctive combination of awe and excitement. I’ve never seen anyone reason like this—anyone able to separate the tangled threads of different thoughts and arguments that I have put out there in a messy jumble, incisively extracting each of them before undermining them one after another.

The law teaches a way of thinking—so-called legal reasoning is actually many things at once, but perhaps the most important element consists of this ability to look at complex issues, take them apart and then frame arguments around each of them in a methodical way, complete with contingencies and rebuttals.

As the weeks go by, I begin to wade into the painstaking and often frustrating process of acquiring this skill for myself, even as I revel in the ways that studying law helps open up my understanding of the world and how it fits together.

But, it is not till a few months later, during the first lecture of my Administrative Law class, that I have my epiphany. I suddenly feel like Neo, in the first Matrix movie. If you haven’t seen it, it is about a man who finds that he is living in a complex, but seamless social construct. There is a moment of clarity and insight towards the end of the film, when the underlying construct, consisting of lines of code, suddenly becomes visible to him, and he begins to see how this world he’d been inhabiting has been put together. He begins to understand how he can navigate that world in new ways—and even begin to change it.

That’s how I feel in this particular lecture, as I suddenly begin to understand the true reach of the law.  It is everywhere. It is in the thickness of our walls, and the telephone and electricity lines that are hidden inside those walls. It is in the width of our roads and what we can and cannot do on those roads. It keeps our food safe and our water flowing through the pipes of our buildings. These are the regulatory standards. It also governs our behaviour, outlining ways in which we ought to conduct ourselves—in a car, on the streets, with regard to our families and loved ones as well as towards the world at large.

And yet—you cannot touch the law—the words on the page reveal how a statute is formulated, how a regulation is phrased, but the words on the page just represent the law. They aren’t the law itself. The law is lived and living. It is intangible, but ubiquitous. This is what I see, during those moments in class, and it takes my breath away, with its scope and its marvelous complexity.

References to the Matrix aside, in the course of my day-to-day routine, the University of Toronto Law School actually reminds me a little of a combination of Gormenghast and Hogwarts—dusty motes of sunlight; genteel, slightly threadbare, elegance; a library filled with arcane tomes; and an emphasis on old rituals that go hand in hand with the practice of courtly etiquette.

The law itself sometimes feels a little like magic, though again, a more complex, difficult, subtle magic than what you’d find in the Fantasy classics. The study of law is a matter of acquiring a language that looks oddly familiar and very much like English, but is actually subtly yet profoundly different, and has the potential to change how we, as individuals in a social construct, interact with each other and with the world.

Change the law, and you legitimize certain activities while disallowing others—suddenly something is permitted and another thing, that was allowed moments before, is a crime.

Laws can even change the very nature of who a person is, in the sense of how their rights are defined, in society. I had touched the edge of this as a Lay Chaplain. Before law school, when I had performed weddings, I had some inkling of this mysterious process by which two individuals became linked, through the ritual of marriage. But here it was—part of what I had sensed in those moments when I’d pronounce two people legally united. Suddenly, through a simple, mutual act, your rights and obligations change, both with regard to the person to whom you are married, and with regard to the world at large. You are suddenly a different legal entity, at a fundamental level.

This is the law.

There are other peculiar, Hogwarts-like rituals. The Grand Moot—a name worthy of J.K. Rowling or Lewis Carroll—is held in early October each year, and in the days leading up to this event, there is a sense of rising excitement among the upper year students and profs. A quidditch match for the brain, the Grand Moot is a mock trial in which the top mooters in the school are grilled by justices from the Supreme Court of Canada, the Ontario Court of Appeals and the Ontario Superior Court. It requires meticulous preparation, but is also a battle of wits, a display of quick thinking and adroit rhetoric, as each mooter’s arguments are rigorously tested in front of their profs and peers.

Much of the school turns up amid an atmosphere of festive anticipation. As a first year student, uninitiated into the complexities and nuances of appeals-level argument, I am sometimes lost, but among the profs and upper years, every thrust and parry of the argument is greeted with loud, collective gasps or groans—or the occasional, spontaneous burst of applause.

After the elegant reception that follows, life falls back into the routine of courses, smattered with fascinating talks and visits from special guests and distinguished speakers from around the world. A woman lawyer comes to speak. She has spent the last six years in the Hague, preparing the case for the prosecution for war criminals, and she speaks with passion about the suffering and heartbreak that the victims and families have experienced, the horror of the mass graves and the testimonies of those who come forward. Bill Graham, former minister of defense, gives a fireside chat and q&a, discussing the difficult choices he had to make around Canada’s original deployment in Afghanistan. Other key shapers, of NGOs and Environmental summits, all pass through, give talks and answer questions, in the intimate, sunlit rooms of the two ivy-covered buildings on University Avenue.

As we move towards the end of the year, the pressure rises. Final exams loom, and my brainy classmates—all of whom I am by now convinced are far brighter than I am—all tense up like high-spirited thoroughbreds. The anxiety in the air grows palpable—we are all in the same classes, doing the same readings, and able to watch each other’s progress while wondering how we will fare. The anxiety runs high among my classmates—when grading is relative rather than absolute, it matters how everyone else does in relation to you.

I escape the law school whenever possible, stealing away to the meditation room in Victoria College or to one of the cafeterias or libraries elsewhere on the campus. I try to stay grounded amid the madness, even as my body breaks out in rashes from the sustained stress.

And yet, through it all, I find myself continually engaged, fascinated and drawn in by my study of the law.

Why? Because underneath the complexity, the arcane language, the labyrinthine reasoning, the law is an intensely human story. It is narrative, at multiple levels. Every court case is a story of conflict—often tragic, occasionally bizarre, and, very rarely, funny. The facts in each and every one of the court cases we looked at could form the basis of a novel. How could I not be hooked?

But those aren’t the only stories, riveting though they are. At another level, the struggles of the judges, trying to work their way through the complex turns of the common law, in search of justice—which itself is far from black and white—forms another layer of this story of adversity and aspiration. There is no doubt, whether or not you agree with the outcome, that each set of written reasons is hard come by and painstakingly wrought, in the attempt to make the law fairer and more just—despite the flaws in many of the judges’ conclusions, in an imperfect world.

This quest for justice is another of the ongoing narratives of the law.

And, at the highest level of all, the law is the story of a society’s aspirations and the ways in which it falls short.

We have a Charter because we believe in a society in which we have certain rights that respect our humanity, our dignity, our freedom of thought and belief.

But if we always met our aspirations, of honouring rights and respecting each other, then we wouldn’t need to write them down and give them the power that we do—they’d simply be givens.

Documents like the Charter of Rights and Freedoms, and even the Criminal Code, tell us how we should treat each other—but also, by the implication of their very existence, they tell the story of how we have wronged each other again and again, often in tragic or horrifying ways.

This is what keeps me engaged by the law—it’s not just about dusty tomes and dry cases. It’s living, breathing, ever-changing. It’s the story of our aspirations and of our imperfections. It is vibrant, tragic and also beautiful. To see a judge struggle for justice and somehow, get things just right, so that his judgment comes to represent a foundational principle of law—it’s extraordinary. And the fact that we keep trying—that no matter how many times we fall short, and how imperfect we may be, we keep reaching for justice, and for ways to do what is right, and to help each other. This is what makes the law so profound, so moving—and so endlessly fascinating.

The Writing on the (Facebook) Wall

Mene mene tekel upharsin.
Thou art weighed in the balances, and art found wanting.

It seems each time I post on the IT blog, I have more to say about the article I’m pointing to, and have to do my own post, to explore the idea more deeply. This time, it’s the question of Pre-Crime.

Ever see the movie Minority Report? The idea was that pattern recognition, when compiled from a sufficient number of sources and properly cross-referenced, could be used to predict, with some degree of accuracy, whether or not someone would commit a crime. In the film, the complication was that pattern recognition could never be completely accurate–there was always a quantum of uncertainty, the question of whether or not the person would actually take that final step, cross the line and commit the act. In the film this is part of what ends up undermining the main protagonist’s deep-seated faith in the system.

According to this article in Datamation, it looks as though something similar might be making an appearance in the here-and-now thanks to data-mining companies that harness massive amounts of processing power in order to comb through Facebook, Twitter, YouTube and blog posts, among many other public sources, in order to create a composite assessment of an individual’s personality that they claim allows them to spot patterns and create a character assessment that you would hope has a high degree of accuracy. Categories like “poor judgement” and “demonstrating potentially violent behaviour” are among those used in the report that is generated. The rationale is that this is meant to protect the company from liability, loose canons, people whose behaviour might end up casting the company in a bad light.

But surely there’s always that quantum of uncertainty–and the possibility that the behaviour might never manifest? Does the fact that the information is publicly available make it okay? Could an argument be made that someone is hoist with their own petard, if their public web presence brings up red flags?

The questions raised in my Financial Crimes class add further nuances to this issue. By my understanding, under C-45, if it is found that a “senior officer” at a corporation has some awareness of illicit activity, then if he does not take appropriate steps, the corporation itself could be charged with criminal activity. So, the hypothetical that immediately springs to mind is the very angle that the data-mining companies are using to sell their product–the potential for liability. If a company has access to this kind of assessment service, then is there a positive duty that would require them to make use of it and take steps, as part of their risk management or due diligence strategy? If they declined to do so, then could they be liable, or assessed as having been willfully blind?

The Grand Moot

The Grand Moot was a few days ago–and the scenario was particularly topical, concerning a “C20” summit, riots in the streets, and the alleged violation of Charter rights re detainment. Was it justified under s. 1?

Tune in to find out…

Sadly, I couldn’t stay for the whole thing, as I had a class. Fortunately, this year, they had an overflow room where it was broadcast on closed circuit tv, so I was able to watch from there and dart out when needed. And after class, I partook of some yummy treats at the reception and got the lowdown on the rest of the arguments.

And for those who are wondering: “just what is a moot”? Look no further. A moot is generally a mock trial at the appellate level (court of appeals), where the focus is on arguments and points of law. At U of T, we either have to do a compulsory or a competitive moot to graduate. The Grand Moot takes that up a notch: there is usually a Supreme Court Justice, one from the Court of Appeals and one from the Superior Court, present and grilling the mooters. And did they ever grill them! Hot seat indeed. But, at least from what I saw, the mooters showed grace under pressure and answered the questions put to them with impressive aplomb.

To add even further to the pressure, this particular contest takes place in front of a goodly number of classmates and profs, who turn up to watch. It reminds me a little of a jousting or quidditch match–there’s a similar air of festive competition among the spectators–but the contest is one of words, wits and arguments, rather than of physical prowess.

All in all, a grand spectacle indeed!

Susan

Sent from my mobile, so please pardon any typos!

Check out the Grand Moot for yourself.

Music Streaming away from the Canadian Market

I did a pointer post on the innovation law blog yesterday, regarding this Globe article. We’re supposed to do mostly pointers, and the posts are supposed to be short–three sentences or so. My three sentences were on the long side, and even so, I have more to say.

The Globe article basically says that streaming music companies like Pandora are being priced out of the Canadian market, because between the cuts demanded by SOCAN (which collects and distributes fees to composers and music publishers) and Re:Sound (same kind of function, apparently, but for record labels/producers and performers. As an aside: despite the DH’s involvement in the music industry and his studies of the music business etc, I actually hadn’t really heard of Re:Sound until now). Re:Sound is asking for a cut based on one of two different figures–whichever is the higher–either 45% of gross revenues, or 7.5 tenths of a cent for every song that is streamed in Canada. And this is on top of the SOCAN fees, mind. This kind of narrowing of providers’ margins have meant that we don’t have access to many such streaming services. Other streaming services claim that they would be undeterred by the prospect of having to give that kind of cut–but that they’d simply be passing along the higher cost to the consumer, which in turn would mean that they’d get fewer subscribers.

I really believe that composers, musicians, producers et al. all do deserve a slice of the pie. I think there is an intangible property right inherent in each of those contributions to the finished product. That’s not controversial to me at all. What I have a problem with is the short-sightedness of demanding such a high cut. No-one is benefitting from streaming music providers staying out of Canada because the desired fees are too high: 45% of 0 is 0. Production companies don’t get a return on their investment–and musicians and composers don’t get any royalties.

Given that, I’d love to hear the rationale for demanding this kind of take. Otherwise, it just comes over as poor advocacy skills–which would be particularly unfortunate if they actually have good reason or solid numbers to support why they want such a large take. The portrayal of their position in the Globe article has overtones of stubbornness–like they’re digging their heels in and saying, “if the Copyright Board approves, then we must be right–oh and some other countries have a similar fee structure” (but do they have streaming media deals and a second group for composers also taking a separate cut?). It might just be bias on the part of the Globe, of course, especially given that the only comparators they cite are the ones provided by the streaming music companies–namely, radio and fitness clubs, both of which have a far better deal. Or, maybe those are the correct comparators, and Re:Sound et al. needs to start doing the math on how well zero divides into itself.

A final point in the article had to do with Canada’s reputation as an illegal music downloading haven, presumably thanks to the popularity of peer-to-peer technologies, which makes it far easier for people get music illegally than to pay for it. The iTunes/iPod success story has some bearing for me, here. I think that if you make it easier for people to pay for something and legally download it than it is for people to get it illegally, then they will pay. By easier, I’m talking about some combination of price point and format. ITunes’s brilliance comes from its integration with the iPod interface. It’s slightly (or significantly) more of a hassle to go to a peer-to-peer program, search out a song and possibly make several unsuccessful attempts to download it then import it into iTunes (not that I would know about any of *that* firsthand), than it is to go to iTunes, download for a nominal fee, and have it seamlessly load onto your iPod. Plus, I do believe that it makes a lot of people feel good to know that they’re putting money towards a band or musician whose music gives them pleasure. The feel-good factor might not win out over ease of process (if it’s easier to do the illegal thing), but it adds positive reinforcement to the legal route, if all the other factors are aligned.

Make it affordable and easier than the alternative, and most people will do it.

Constitutional Law (the Canadian Edition) I: Federalism

Constitutional law (1L edition–>Federalism, the Charter, and a bit on Aboriginal rights) seems to be marked by two main points of tension. On the one hand, under federalism, it is the tension of balancing the power distribution between the provincial and the federal governments. On the other, it is the challenge of deciding when the right of the individual–or special interest group–is more important than the collective interests of the many, as well as on what basis this is decided.

Then again, the basis upon which a decision is reached is a tension and point of debate in many areas of law, and can be disputed from one case to another.

So, Federalism.

The concept here is pretty straightforward. Canada is a federalist state–so power and the ability to act/legislate is divided between the federal and provincial governments. These powers were delegated and outlined in ss. 91 & 92 of the British North America Act (BNA Act), otherwise known as the Constitution Act, 1867. There are enumerated powers in each section (e.g. the provinces can legislate with regard to property and civil rights, while the federal government has the right to legislate copyrights). There’s also a clause that allows for the federal government to legislate for the “Peace, Order and Good Government” of the country regarding any matters that don’t fall under the enumerated powers–kind of an umbrella clause that catches everything that isn’t explicitly allocated.

The federalism section of Canadian legal history is really a narrative of competing powers. Early on, when the provinces were signing on to the Dominion and unifying into a country, there was a lot of tension and competition between each, as the Dominion (federal) government tried to exert its sovereignty, while the provinces tried to retain as much autonomy as they could. The playing field was wide open and so there was much jockeying for larger pieces of the pie on both sides.

You may wonder how, if everything is enumerated, there can be any kind of power struggles–surely it’s all listed there? Well, in a way. Many of the powers can be read broadly or narrowly, to have a wide scope (Peace Order and Good Government at one point was read as meaning anything that wasn’t explicitly enumerated. At another point, it meant the feds could legislate outside of their enumerated powers during states of emergency like war, famine etc. only–and that such were the ONLY times when POGG was sufficiently at stake to allow for that wide reach). Another reason for the tension is that the enumerated powers were not fully isolated from one another. There are overlapping interests that can be legislated on by each side. For instance, both the provincial and federal legislatures can pass laws regarding speeding on the roads–the provinces can impose fines and certain penalties as part of the regulation of roads and traffic, while the feds can also impose penal sanctions for the same infraction under the criminal law power that is their domain.

The tensions in the early part of Canadian history were further complicated by the fact that any disputes between the provs and the feds didn’t end with the Supreme Court of Canada. Until the middle of the 20th century, any Supreme Court decision could be appealed to the Privy Council–the top court in Britain. The colonial ties remained in place until surprisingly late in our history. Some of the decisions made by the Privy Council seem mystifying–one judge in particular, a Lord Haldane–really seemed to have it in for the feds, and decided consistently against them, reading all the clauses of their powers so narrowly that they had almost no power at all by the 1920s. It’s difficult to know whether he made these decisions because, as a scotsman, he had sympathy for the localized powers and interests, rather than what he might view as the equivalent of an imperial power, embodied in the federal government–or whether he had other, even more mysterious reasons. After his death, the tide turned for the federal interests, and the powers balanced out somewhat.

Toward the late-middle 20th century, the struggle seemed to settle somewhat, as different policies and paradigms were put in place and, through repeated precedents, solidified into doctrine. This helped with the stability of the power balance, such that in more recent years, there’s a better sense of the scope of each power, and there are defined ways to deal with overlaps in jurisdiction with regard to any proposed legislation. The result has been a far more “functional federalism,” with the two powers playing far more nicely together in the sandbox–despite the occasional, lingering dispute or tension that arises–and ongoing back and forths around things like budgetary allocation of taxation revenue and the like.

There are also some core concepts that emerged in the course of the federalism cases, one of which is the idea of the constitution as a living tree. This is the notion that any interpretation of the constitution should be made with the idea that it can grow and take new directions that the original authors might not have anticipated, like branches of a tree. Any interpretation should be a natural outgrowth, rather than a radical departure from the original text and the precedents and case law that has emerged around that text.

It’s a lovely and vibrant image–and it is core to both the federalism cases, and to cases relating to the Charter of Rights and Freedoms.

My likely-not-legally-binding-but-what-do-I-know? disclaimer.

The Living Tree

One of the core metaphors of Constitutional Interpretation here in Canada is that of the living tree. The idea is that we should read the Constitution in such a way as to leave room for future growth and change, while still respecting that there must be connection with past. In other words: we don’t want to freeze things in place by looking only at ideas the authors (aka “framers”) would have had at the time it was formulated–thus limiting and boxing in our rights. But we also don’t want to jump out into left field by radically departing from previous precedents. It is meant to be connected (like branches and offshoots), incremental and unified by a core set of ideas (a trunk, as it were). So, we often call the constitution a living tree, which is a lovely image.

I have, accordingly, christened the tree in front of Flavelle, between the two buildings of the law school, “the living tree”. It seemed appropriate.

Sent from my mobile, so please pardon any typos!