Prison Reform, North And South

With parallel discussions on prison and sentencing reform now occurring in Canada and the U.S., a great divide is emerging between the directions of policy-makers here and those south of the border.

As we've previously noted, the New York Times reported on March 24, 2009 that several states, including Colorado, Michigan, Kansas and New Jersey, are closing prisons or adopting sentencing alternatives to reduce pressure on over-stretched state budgets:

Some states, like Colorado and Kansas, are closing prisons. Others, like New Jersey, have replaced jail time with community programs or other sanctions for people who violate parole. Kentucky lawmakers passed a bill this month that enhances the credits some inmates can earn toward release.

Michigan is doing a little of all of this, in addition to freeing some offenders who have yet to serve their maximum sentence.

In an article today, Salon's Glenn Greenwald looks at American prison overcrowding. He lauds a recent Senate floor speech by Virginia Senator Jim Webb, excerpted below:

Let's start with a premise that I don't think a lot of Americans are aware of. We have 5% of the world's population; we have 25% of the world's known prison population. We have an incarceration rate in the United States, the world's greatest democracy, that is five times as high as the average incarceration rate of the rest of the world. There are only two possibilities here: either we have the most evil people on earth living in the United States; or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice. . . . The elephant in the bedroom in many discussions on the criminal justice system is the sharp increase in drug incarceration over the past three decades. In 1980, we had 41,000 drug offenders in prison; today we have more than 500,000, an increase of 1,200%.

Meanwhile, in Canada, federal legislation was introduced this week to lengthen jail sentences by curtailing two-for-one "dead-time" credit for time served by accused persons prior to conviction.

(Whether the legislation represents substantive change or is simply a public relations exercise in window-dressing is a question for another day. This Globe and Mail op-ed elaborates on the specifics of the proposed amendment:

The Criminal Code amendments tabled yesterday would allow judges some discretion (up to 1.5 times credit, with reasons spelled out). That should add predictability and comprehensibility to the system.)

In an editorial today, the Ottawa Citizen addresses the yet-unspoken budgetary questions underpinning this proposed change:

In theory, those accused of committing a crime should wait for trial for as short a time as possible, so they can move on -- either to life outside as an innocent person, or to an appropriate sentence. But when judges saw that delays were causing an accused to spend years locked up in limbo, they started giving two-for-one credit for that time, upon conviction.

That should have served as an incentive for governments to reduce delays. Instead, Nicholson wants to curtail judges' ability to give two-for-one credit.

Chris Bentley, Ontario's attorney general, likes Nicholson's law. He and others suggest it will help the justice system move faster, because hardened criminals intentionally try to delay their trials, knowing they'll get two-for-one credit. Remove that incentive, and you remove some delays.

...Canadians should welcome the removal of the perverse incentive that two-for-one credit provides for crafty criminals. But we must also be honest about the effect the new law could have on correctional facilities. The assumption behind Nicholson's initiative is that criminals are receiving sentences that are too short. But if sentences are longer, jails will be more crowded -- which means jails will have to be bigger or there will have to be more of them.

As Ontario's attorney general, Bentley should be asking Nicholson where the extra money is going to come from. (emphasis added)

Canada should think-twice before adopting this legislation. There is a lesson to be taken from the American incarceration experiment of recent decades.

The additional monies required by this legislation to lengthen Canadian prison sentences would be significantly better spent on elimination of the systematic delays that impede access to justice in the nation.

That means more courtrooms, more judges and rational funding of alternative sentencing programmes that effectively protect the public, while also promoting the legitimate objectives of deterrence, treatment and rehabilitation.

What we do not need is a legislated rehash of knee-jerk, politically-charged band aids that have been tried, and have failed, elsewhere.

Particularly at a time when we can't afford it.

- Garry J. Wise, Toronto

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Toronto Parental Alienation Conference

The National Post reports on a Toronto conference for lawyers, professionals and parents on parental alienation: Custody Judges Rule on Vengeance.

Also see coverage from the Globe and Mail: Gender Bias Evident in Parental Alienation Cases.

- Garry J. Wise, Toronto

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Google Street View Coming to Canada

CBC reports that Google Street View is en route to Canada:

Google will be driving around 11 Canadian cities across the country again "in coming weeks" to take images for the Canadian version of its Street View service, which it hopes to launch "very soon," the company announced earlier this week.

So let's take a look at how it works:

Since this is, after all, a law blog,  it seems appropriate to note CNET's report on the February 2009 dismissal of an invasion of privacy lawsuit by a Pittsburg couple against Google over alleged invasiveness of its Street View photographers:

A couple in Pittsburgh whose lawsuit claimed that Street View on Google Maps is a reckless invasion of their privacy lost their case.

Aaron and Christine Boring sued the Internet search giant last April, alleging that Google "significantly disregarded (their) privacy interests" when Street View cameras captured images of their house beyond signs marked "private road." The couple claimed in their five-count lawsuit that finding their home clearly visible on Google's Street View caused them "mental suffering" and diluted their home value. They sought more than $25,000 in damages and asked that the images of their home be taken off the site and destroyed.

However, the U.S District Court for Western Pennsylvania wasn't impressed by the suit and dismissed it (PDF) Tuesday, saying the Borings "failed to state a claim under any count."

- Garry J. Wise, Toronto

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Warman and Fournier - Online Anonymity Threatened in Ontario

A decision this week by Ontario Superior Court Judge Stanley Kershman has dramatically weakened the ability of Canadian writers and activists to maintain a cloak of online anonymity. 

In a March 25, 2009 ruling in Warman v. Fournier, the Court required the Defendant operators of a controversial right-wing website and forum known as freedominion.ca to produce documents and information that may allow the Plaintiff, Richard Warman to identify eight other John Doe Defendants in the case.  

In the action, Mr. Warman claims damages in relation to allegedly libelous, anonymous comments published by the John Does at the freedominion website's message-board.

In ruling for Mr. Warman, the Court required the freedominion owners to produce information and documents including:

(a) The email addresses and all personal information the John Doe Defendants used and submitted to freedominion.ca to register their access accounts, and/or profiles in the freedominion.ca site forum;

(b) The Intemet Protocol C'IP") addresses of the computers used to establish the accounts in question;

(c) The IP addresses the John Doe Defendants used when making the specific postings identified in the Statement of Claim;

(d) Any and all documents relating to the establishment and ongoing operation of the website, freedominion.ca, by the Fournier Defendants, such as, but not limited to, hosting agreements, billing information, and website registrant name(s).

The website operators argued that it was incumbent on the Plaintiff to establish a prima facie case of defamation to demonstrate entitlement to such disclosure.  The Court, relying on the discovery provisions of Ontario's Rules of Civil Procedure, did not agree:

[9] An Affidavit of Documents is required to disclose, to the full extent of a party's knowledge, information and belief, all documents relating to any matter in issue in the action that are or have been in the party's possession, control or power.

[10] In addition, the Affidavit of Documents must include a list of the names and addresses of the persons who might reasonably be expected to have knowledge of the matters in issue in the action, unless the court orders otherwise.

[11] In my view, the Rules of Civil Procedure impose a high standard of discovery upon the litigants.

...[23] The Defendants claim that the Plaintiff did not make out a prima facie case. In my view, there was no need for the Plaintiff to do so.

[24] In fact, the obligation is on the Defendants to disclose.

Michael Geist, commenting on the decision, quite rightly notes the Court's single-minded focus on the disclosure rules governing Ontario civil proceedings, and questions the Court's summary approach to the privacy-related concerns obviously at risk: 

Protection for anonymous postings is certainly not an absolute, but a high threshold that requires prima facie evidence supporting the plaintiff's claim is critical to ensuring that a proper balance is struck between the rights of a plaintiff (whether in a defamation or copyright case) and the privacy and free speech rights of the poster.  I cannot comment on the postings themselves (and I recognize that Warman has been a frequent target online) but I fear that the high threshold seems to have been abandoned here, with the court all-too-eager to dismiss the privacy considerations associated with mandated disclosure by not engaging in an analysis as to whether the evidentiary standard was met.

In fact, the ruling may well stand for the proposition that there is no evidentiary standard or threshold that must be met to establish an entitlement to this form of disclosure. 

The Warman decision is decidedly weakened by its failure to consider the entitlement to online anonymity in the context of the Charter's guarantee of the right to free expression:

2. Everyone has the following fundamental freedoms:

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

Numerous American decisions have held that the First Amendment affords considerable protection of such anonymity. See: Anonymous Internet Communication and the First Amendment: A Crack in the Dam of National Sovereignty, 3 VA. J.L. & TECH. 1

A March 2, 2009 decision of the Maryland Court of Appeals in Independent Newspapers, Inc. v. Zebulon J. Brodie established specified procedures to afford online anonymity protection.  As reported by CNet:

The court used its ruling to set for trial courts a "standard that should be applied to balance the First Amendment right to anonymous speech on the Internet with the opportunity on the part of the object of that speech to seek judicial redress for alleged defamation."

In a defamation case involving anonymous speakers, the ruling said, courts should first require the plaintiff to try to notify the anonymous posters that they are the subject of a subpoena. That notification could come in the form of a message posted to the online forum in question, and the posters must be given sufficient time to respond.

The plaintiff must then hand over the exact statements in question, so the court can decide whether the comments are obviously defamatory. Finally, the ruling says, the court must weigh the anonymous poster's right to free speech against the strength of the defamation case and the necessity of disclosing the poster's identity.

Similarly, in November 2007, we reported on New York's Orthomom decision, in which a court refused a Plaintiff's request for disclosure of an anonymous blogger's identity specifically because the Plaintiff had failed to demonstrate that any actionable claim for defamation arose from the writings at issue in the complaint.  

Robert Ambrogi summarized the decision:

The petitioner, Pamela Greenbaum, a school board member in Lawrence, N.Y., brought a pre-action discovery proceeding seeking to force Google to disclose the author of the blog Orthomom, which Google hosts on its Blogger service

Manhattan Supreme Court Judge Marcy Friedman concluded that Greeenbaum had not shown that she has a meritorious claim for defamation and therefore is not entitled to disclosure of the blogger's identity. Friedman wrote:

[T]he court ... finds that Orthomon's statements are not reasonably susceptible of a defamatory connotation. Greenbaum's defamation claim against Orthomon reduces to the insupportable assertion that Orhomom implied that Greenbaum is an anti-semite merely because Orthomom disagreed with Greenbaum's position on the use of public funding for a program that could have affected the Orthodox Jewish community.

Because the blogger was expressing her opinion about a fact that was not in dispute, her statement was protected by the First Amendment, the judge said.

A similar outcome was reached in a 2007 New Jersey ruling, also involving a request that Google disclose of the identity of a blogger known as Da Truth Squad:  

"And I [...] recognize that there are First Amendment issues with regard to disputes with the past administration. And that anyone [...] has a right to make their feelings clear. And they have a right not to be intimidated by the issuance of discovery requests in order to shut them down. For that reason, in many ways, the authority cited by the intervenor is correct and accurate. And first of all the [...] blogger, if in fact it’s an individual person, and I’m assuming absent any evidence that it is another individual person, has a right not to be drawn into the litigation and forced to reveal identity or to impede on his or her First Amendment rights simply on a suspicion, however founded or unfounded, and I don’t believe that this suspicion is sufficiently founded at this point to determine that it is Mr. Moskovitz. That person should not be drawn into the litigation and forced to abide by the rules with regard to exchange of information that the parties have, as opposed to a third party. So the Court is satisfied that there is no authority under law for this particular subpoena to obtain this private information. To allow the subpoena would be undue and unjust infringement on the blogger’s First Amendment rights. There’s no factual basis at this point, other than a mere suspicion for the justification. And ultimately that even if the information were obtained, it would be so remote to the actual elements of this litigation that it would not be admissible under any circumstances." 

While I understand the freedominion authors to be an extremely tempting target to many in the blogosphere, little solace should be taken from this ruling.  

An order for disclosure may have been justifiable if the statements made by the anonymous posters were, on their face, apparently actionable.  

The Court's disinclination, however, to engage in any factual analysis of the alleged defamation or the necessary balancing of competing interests has created a dangerous precedent that should not be allowed to stand.  

Based on Warman ruling, the mere commencement of a court proceeding may now  give rise to an automatic entitlement to this form of disclosure. 

This is an unacceptably broad entitlement to disclosure that unnecessarily threatens the reasonable expectation of online anonymity that many have come to take for granted.

The freedominion owners, however, indicate that they are unlikely to appeal the ruling. 

- Garry J. Wise, Toronto

Update - March 26, 2009

In a comment to this post, below, a person identifying herself as one of the freedominion owners now indicates "it is very likely we WILL be appealing this decision."

- Garry J. Wise

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Video: Florida Judge Jumps Over Bench, Tackles Defendant

Law.com sets the stage:

Florida Judge Ian Richards demonstrated he could wield more than a gavel when he took a flying leap over his bench to tackle a defendant bent on attacking a former girlfriend who was testifying against him in a domestic violence case. A bailiff was handcuffing the 29-year-old defendant when he bolted toward the witness, who sought refuge between the bench and the witness box. The judge then vaulted the bench to help subdue the attacker.

And with today's evidence in support of cameras in the court room,  YouTube fulfills its duly appointed societal duty:

Remarkable.

- Garry J. Wise, Toronto

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Employment Insurance in Canada

On March 13, 2009, we looked at Unemployment Insurance in America and noted obstacles built-in to the U.S. system that often limited the ability of unemployed workers to obtain benefits. 

Today,  Doorey's Workplace Blog addresses systematic impediments to benefit entitlement in our own,  Canadian employment insurance model:

Statistics just released showed that applications for unemployment insurance increased by almost 23% this January compared to last year.  To deal with flood of applications, the government is providing an additional $60 million to hire more claim processors.

But critics argue that the real problem is the model itself, which has such strict eligibility requirements that more than one-half of Canada’s unemployed remain ineligible.  Here is a summary of the various eligibility restrictions prepared by the government.   In essence, you must have worked a certain number of hours during the 52 week period since your last claim to be eligible, and how many hours needed depends on where you live.  Here is the chart that tells you how many hours you need to work and how long you can receive benefits for.  In Toronto, for example, you need to have worked 595 hours, and you are eligible for a maximum of 47 weeks’ of benefits.  You also have to wait  a 2 week period at the beginning of your claim before your payments begin.

Critics want the number of hours needed to qualify to be lowered, the waiting period to be eliminated, the length of payments to be extended, and the amount of payments to be increased (currently, the maximum payment is $477 per week, based on 55% of average earnings to a maximum annual salary of $42, 300).

- Garry J. Wise, Toronto

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Drabinsky, Gottlieb Convicted

CBC News reports:

Garth Drabinsky and Myron Gottlieb have been found guilty on fraud and forgery charges, with an Ontario judge saying they "systemically manipulated the books" at their now-defunct theatrical production company Livent Inc.

In one of Canada's most prominent fraud cases, Justice Mary Lou Benotto of Ontario Superior Court in Toronto ruled Wednesday that Drabinsky and Gottlieb were guilty of fraud and forgery in their running of Livent Inc. in the mid-1990s.

- Garry J. Wise, Toronto

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Ontario Judges Balk at Bill 133 Investigation Duty

The Globe and Mail reports that Ontario's family court judges are not happy with the new, investigative duties assigned to them by Ontario's proposed Bill 133 in child custody applications by non-parents:

A confrontation is brewing between family court judges and the Ontario government over a scheme aimed at preventing a repeat of the shocking death of a Toronto child last year.

The plan would require judges to play the improper role of "investigators" in child-custody applications launched by non-parents, a group of 12 judges said in a submission to a committee of MPPs studying the proposed legislation, Bill 133.

...The judges condemned the new provisions as "an unwieldy and intrusive scheme" that will force judges to assemble a welter of evidence involving prior child protection proceedings, family law proceedings and criminal record checks.

"It is improper for judges to assume this role," they said. "A court is not equipped to administer a scheme of this nature, nor are judges equipped to conduct the kind of investigations contemplated. We are convinced Bill 133 does not provide a workable system."

"In a system that is critically under-populated by lawyers, the task of judges becomes more difficult," they said.

- Garry J. Wise, Toronto

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P.M. to Introduce Bill to End "Two for One" Prison-Time Credit

CTV reports:

CTV News has learned that the government plans to introduce legislation on Thursday to end the "two-for-one" credit for convicted felons for time spent in pre-trial custody.

The credit aims to compensate for so-called "dead time" spent in overcrowded detention centres that do not have rehabilitation programs or many of the amenities of long-term prison housing.

... Canada's criminal code says that judges may take pre-trial custody into account and that discretion has become a near-standard practice, backed up by support from various appeal courts.

The government legislation would take away the judge's discretion, but some believe that longer sentences given out under the bill could be subject to a Charter of Rights challenge.

...However, the opposition Liberals say they will support the Conservatives' move to kill the credit.

Meanwhile, in America...:

The New York Times reports on the number of states reversing course and closing prisons as a means of saving money.

Some states, like Colorado and Kansas, are closing prisons. Others, like New Jersey, have replaced jail time with community programs or other sanctions for people who violate parole. Kentucky lawmakers passed a bill this month that enhances the credits some inmates can earn toward release.

Michigan is doing a little of all of this, in addition to freeing some offenders who have yet to serve their maximum sentence. And last Wednesday, Gov. Bill Richardson of New Mexico, a Democrat, signed legislation to repeal the state’s death penalty, which aside from ethical concerns was seen as costly.

(H/T: Talk Left)

- Garry J. Wise, Toronto

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Resignation Letter from An AIG Executive

AIG executive Jake DeSantis' letter of resignation appears today as a New York Times op-ed.

Excerpted below, it may cause you to rethink the bonus outrage - well, maybe a little:

DEAR Mr. Liddy,

It is with deep regret that I submit my notice of resignation from A.I.G. Financial Products. I hope you take the time to read this entire letter. Before describing the details of my decision, I want to offer some context:

I am proud of everything I have done for the commodity and equity divisions of A.I.G.-F.P. I was in no way involved in — or responsible for — the credit default swap transactions that have hamstrung A.I.G. Nor were more than a handful of the 400 current employees of A.I.G.-F.P. Most of those responsible have left the company and have conspicuously escaped the public outrage.

After 12 months of hard work dismantling the company — during which A.I.G. reassured us many times we would be rewarded in March 2009 — we in the financial products unit have been betrayed by A.I.G. and are being unfairly persecuted by elected officials. In response to this, I will now leave the company and donate my entire post-tax retention payment to those suffering from the global economic downturn. My intent is to keep none of the money myself.

I take this action after 11 years of dedicated, honorable service to A.I.G. I can no longer effectively perform my duties in this dysfunctional environment, nor am I being paid to do so. Like you, I was asked to work for an annual salary of $1, and I agreed out of a sense of duty to the company and to the public officials who have come to its aid. Having now been let down by both, I can no longer justify spending 10, 12, 14 hours a day away from my family for the benefit of those who have let me down.

...At no time during the past six months that you have been leading A.I.G. did you ask us to revise, renegotiate or break these contracts — until several hours before your appearance last week before Congress.

I think your initial decision to honor the contracts was both ethical and financially astute, but it seems to have been politically unwise. It’s now apparent that you either misunderstood the agreements that you had made — tacit or otherwise — with the Federal Reserve, the Treasury, various members of Congress and Attorney General Andrew Cuomo of New York, or were not strong enough to withstand the shifting political winds.

You’ve now asked the current employees of A.I.G.-F.P. to repay these earnings. As you can imagine, there has been a tremendous amount of serious thought and heated discussion about how we should respond to this breach of trust.

As most of us have done nothing wrong, guilt is not a motivation to surrender our earnings. We have worked 12 long months under these contracts and now deserve to be paid as promised. None of us should be cheated of our payments any more than a plumber should be cheated after he has fixed the pipes but a careless electrician causes a fire that burns down the house.

Many of the employees have, in the past six months, turned down job offers from more stable employers, based on A.I.G.’s assurances that the contracts would be honored. They are now angry about having been misled by A.I.G.’s promises and are not inclined to return the money as a favor to you.

The only real motivation that anyone at A.I.G.-F.P. now has is fear. Mr. Cuomo has threatened to “name and shame,” and his counterpart in Connecticut, Richard Blumenthal, has made similar threats — even though attorneys general are supposed to stand for due process, to conduct trials in courts and not the press.

... I have decided to donate 100 percent of the effective after-tax proceeds [$742,006.40] of my retention payment directly to organizations that are helping people who are suffering from the global downturn. This is not a tax-deduction gimmick; I simply believe that I at least deserve to dictate how my earnings are spent, and do not want to see them disappear back into the obscurity of A.I.G.’s or the federal government’s budget. Our earnings have caused such a distraction for so many from the more pressing issues our country faces, and I would like to see my share of it benefit those truly in need.

Mr. DeSantis makes a number of compelling arguments, all of which might be quite convincing - if the numbers at issue weren't so disproportionately outrageous.

- Garry J. Wise, Toronto

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Fired for "Friending" - Facebook Update

A U.K. prison prison guard has been terminated for gross misconduct, after a disciplinary hearing determined that his Facebook "friend list" included some unsavoury types: 

A PRISON officer has been sacked after 13 criminals, including a murderer, were discovered among friends on his Facebook page.

A photo on the social networking website showed Nathan Singh, 27, with a drugs dealer and fraudster at Cheltenham races, London's The Sun reports.

Singh was a residential landing officer in England's Leicester jail, which holds just under 400 prisoners.

...At a disciplinary hearing, the officer claimed he knew them from school or playing football. He told the hearing: “Sometimes when I logged on to my Facebook site there would be twenty-odd friends requests and I just accepted them. 

"Sometimes I didn’t even check them. I realise now it might have been naive in the job I do.” Singh was fired for gross misconduct.

Is this a case of gross misconduct or of guilt by association?  

The original Sun report sheds some necessary, additional light on the context:

Shadow Justice Secretary Dominic Grieve said: “Prison officers should be vetted before being offered a job, to check criminal connections. Cases like this demoralise the vast majority of dedicated prison staff.”

A Prison Service spokesman said: “A prison officer from HMP Leicester had been associating with serving and former prisoners, outside the course of his employment and without authority.

“We take inappropriate relationships with prisoners very seriously. We do carry out thorough checks when we recruit prison officers.

“The vast majority of our staff are honest, hardworking and professional.”

In corrections-related positions, the absence of "criminal connections" or the appearance thereof, may well be a stated, fundamental tenet of a contract of employment.  In such a circumstance, job sanctions may flow from maintaining an obvious, public connection with criminal figures. 

While this concept is not novel, the digital trail left by Facebook certainly adds a twist - and a significant, new bank of potential evidence in any investigation of criminal or civil misconduct.  

And like all things Facebook, your friend list could at some point become a public document, with unanticipated, adverse consequences. 

Canadian politicians have not been immune to this form of heat. Most recently, Conservative MP Peter Kent encountered a minor political storm over one of his Facebook friends, as B.C.L. reported on February 6, 2009:

I admit, I didn't think Dawg's post outlining junior foreign minister Peter Kent's facebook relationship with Meir Weinstein, aka Meir Halevi, the Canadian Director of the Jewish Defense League, would amount to a whole lot. After all, facebook friends aren't like real friends, are they? They're just a tiny little picture stuck up on your personal web-page.

Maybe I was wrong, though, because Now Magazine has done a brief piece on the topic:

Tory MP Peter Kent

The Thornhill rep has ventured into some far-out places politically on the Middle East. Now, he’s popping up as a Facebook “friend” of the head of the Arab-phobic (and we’re being kind in our choice of words here) Jewish Defense League. With friends like these....

And, more importantly, it looks as though Kent himself is concerned enough about the apparent JDL link to have "defriended" Mr. Weinstein.

So allow me to reiterate something that has become increasingly apparent as courts throughout the Western world consider the evidentiary application - and implication - of social media postings:

Facebook - and all social media - is public, not private, and should be treated that way by users.

In other words, know who your friends are.  

- Garry J. Wise, Toronto

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Facebook, Disclosure, Leduc and Ontario Employment Law

Management lawyer Michael Fitzgibbon picks up on our March 4 discussion of the Leduc case, in which an Ontario personal injury Plaintiff was essentially ordered to make full disclosure to the defence of the contents of his private, friends-only Facebook pages.

Mr. Fitzgibbon contends the case has enormous implications for employment law litigation:

This is a very important case for those who practice in the area of employment law.

For example, an employee is terminated, sues and claims damages for wrongful dismissal.  Mitigation is always an issue in these cases.  If the former employee maintains a Facebook account or participates in other social-networking sits (MySpace or the increasingly popular Twitter) the contents of those sites may be highly relevant to that issue.  

There are enumerable examples but defence counsel should not overlook this important source of information on discovery and through the litigation and investigation, and plaintiff counsel will be well advised to consider this case when advising their client and preparing their Affidavit of Documents.

While Mr. Fitzgibbon may have taken a small leap of faith in his suggestion that Facebook postings are likely to be generally relevant on the specific issue of mitigation, his ultimate conclusion is sound.

Online postings at social media sites are now fair game for disclosure in Ontario civil litigation.

- Garry J. Wise, Toronto

Update - March 24, 2009:  Law.com also covers Leduc today - see: Electronic Discovery and Facebook

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India's Caste System Challenged in Appeal Court Ruling

For those of us who know very little about the state of social justice in India, this report from Telegraph UK will be most disconcerting:

Mushtaq Ahmed Mir, an unemployed man from Kupwara, decided to sue the Kashmiri newspaper Tameel-i-Irshad after it published a false report claiming he was a defendant in a murder case. He had asked the judge to waive the court fee in the case because he was too poor to pay it.

The judge threw out his case with a ruling that the poor did not have reputations which could be damaged in newspaper reports.

"When the plaintiff is not even in a position to pay the lawsuit fee, he cannot seek damages for defamation, " Judge Nazir Ahmed Fida said. "The dignity of a person of low integrity will not be lowered further in case his name appears in a defamatory piece of news."

...In his appeal ruling, High Court Judge Muzaffar Hussain Attar reprimanded the original trial judge and said his ruling had been "offensive to conscience." "The respect and reputation of a person is not dependent upon how much wealth he has accumulated," he said. If only the rich were entitled to respect "a great disservice will be done to society," he added.

...Leading social commentator Pavan K Varma said the ruling heralded "the beginning of change." "To say that someone who is poor can't have status reflects the mindset of another century, but old attitudes die hard. That the appeals judge threw out the ruling means there's a beginning of change. I'm not surprised that [the judgment] was overruled. That's the significance. Caste is now standing on its head," he said.

- Garry J. Wise, Toronto

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Internet Blacklists in Australia

The Sydney Morning Herald looks at web blacklists and threatened censorship by Australian cummunications regulators:

The Australian communications regulator says it will fine people who hyperlink to sites on its blacklist, which has been further expanded to include several pages on the anonymous whistleblower site Wikileaks.

Wikileaks was added to the blacklist for publishing a leaked document containing Denmark's list of banned websites.

The move by the Australian Communications and Media Authority comes after it threatened the host of online broadband discussion forum Whirlpool last week with a $11,000-a-day fine over a link published in its forum to another page blacklisted by ACMA - an anti-abortion website.

In a related story, The Guardian follows the money in its look at internet censorship:

Yet the global nature of the internet means that it perhaps makes less sense these days just to point the finger at isolated cases. It's not just a question any more of naming and shaming repressive regimes – western businesses are implicated too. I don't just mean Google and Yahoo for their activities in China, but the software and hardware companies that design the filtering software and infrastructure that makes censorship possible.

Saudi Arabia, for example, blocks undesirable websites with Californian software and the Chinese have Cisco to thank for their routers and switches. As the writer Xeni Jardin has observed, the US is now in the business of exporting censorship. For the first time in history, censorship has become a profitable enterprise, not just a matter of political control.

- Garry J. Wise, Toronto

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New B.C. Second-Hand Smoke Law Probits Smoking While Driving With Kids

Following in Ontario's recent footsteps, effective April 7, 2009, British Columbia will impose a $109.00 fine on drivers who smoke in their vehicles with children present.

- Garry J. Wise, Toronto

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The Great Toronto Street-Food Debate

While much of Toronto's media celebrates the imminent arrival of Biryani, Pad Thai and Bulgogi carts on the City's street corners, The Globe's Margaret Wente isn't so pleased.

Ms Wente takes on Toronto City Hall for politically-correct over-regulation of street food in Toronto:

Once upon a time, I used to think that the job of city government was to fix the potholes, police the streets, clear the snow and pick up the garbage. How wrong I was! Now I know that the most important job of city government is to enforce healthy eating habits among the populace, promote diversity and (perhaps contradictorily) harass hard-working immigrant micro-entrepreneurs until they wonder why they ever moved here.

...In New York, the customers are allowed to judge the street food for themselves. Naturally, that would never do in Toronto, a city run by control freaks who think street food should be about social justice and nutrition. Don't get me started on the bottled water. It's been banned from city premises because it's anti-environmental. From now on, thirsty citizens will just have to drink Coke.

See Ms. Wente's Please stop nannying us, Toronto.

She has a point.

While I'm all in favour of zealous regulation on food safety issues, I'm not so sure City Council should be in the business of  setting - or limiting - the menu selections for Toronto's street cuisine.

Variety is the spice of life.  

(And Tums are my friend.)

- Garry J. Wise, Toronto

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