Conservatives, CBC and the Limits Of Fair Dealing

The Conservative Party of Canada and the CBC have recently found themselves in confrontation, as the Tories have seen fit to use CBC news footage in constructing their most recent round of political advertisements attacking their opponents, particularly Michael Ignatieff.

The CBC immediately complained about the use of their footage in the advertisements, arguing that their journalistic integrity had been compromised.

The Conservatives responded that they felt their use of the footage in the advertisements fell within fair dealing doctrine in Canada, pointing out that when they ran an advertisement in 2009 using footage from C-SPAN, the director of C-SPAN responded to the Liberal Party's notification by saying that the Conservative use of their footage fell within fair use guidelines.

The problem with the Conservatives' response is that in many ways it's not really relevant to the legal issue at hand. Ignoring for the moment that C-SPAN and the CBC both have the right to determine what their own response should be when their footage is used without permission (regardless of whether that response is legally correct), it is worth remembering that Canada and the United States operate under differing copyright regimes.

There is no explicit exemption for political speech in either Title 17 of the United States Code (the statutory source of copyright in the United States) or in the Copyright Act in Canada. From a statutory standpoint, Canada only allows fair dealing exemptions for use of copyrighted material when the intended use is for research, public study, criticism/review, or news reporting.

Unlike the United States, which explicitly outlines other factors by which a given use of copyright material could be considered a fair use, in Canada most people accused of copyright infringement and pleading a fair dealing defense must rely on CCH v. Law Society of Upper Canada, which outlines a set of similar factors, including among others the purpose of the dealing, the character of the dealing, the nature of the original work and the effect of the dealing on the original work. Although this common-law precedent has been used in Canada for much the same purpose as the statutory fair use provisions in place in the United States, a common-law precedent is by definition more transient than a statute.

Which then leads one to the other problem with the Conservative Party's response to the CBC, which is not simply that they are claiming a fair dealing right that does not exist under statute, but that they're claiming a fair dealing right which the Conservatives specifically did not include in Bill C-32, the bill updating outdated provisions copyright law - which they wrote.

- Christopher Bird, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Coming Soon: The Conservative Party Infomercial Channel?

Warren Kinsella is surprisingly too kind to his friend, Kory Teneycke, a Conservative party stalwart who has made application to the CRTC to bring a Fox-News style cable channel to Canada's airwaves.

Mr. Kinsella simply could have pointed out the obvious - this appears little more than a barely-veiled attempt to launch a Conservative Party infomercial channel, not a news channel at all.

No, thanks.

(Or as Don Newman succinctly put it, "the absolute last thing this country needs.")

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

The Jaffer "Wrist Slap"

Was a bungled strip-search at the bottom of the lenient, $500 fine received by the former Conservative MP?

Calgary Herald reports:

Charged with impaired driving, possession of cocaine and speeding, he received what even the judge in the case conceded was a "break" -- a $500 fine for a careless driving plea, with the more serious charges dropped. Jaffer, 38, was pulled over for allegedly driving 43 km/h over the speed limit in Ontario last fall.

...According to reports, the more serious charges against Jaffer were dropped because a rookie police officer failed to follow proper procedures during a strip search of the former politician. Prosecutors apparently felt the evidence would be open to a challenge under the Charter of Rights.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

On Courts, Khadr and Canada's Conservatives

CTV News reports today that Stephen Harper's Conservative government continues to hedge on whether it will abide by an April 23, 2009 Federal Court ruling, require it to formally request the repatriation of Omar Khadr, a Canadian citizen confined at Guantanamo Bay since 2002:  

Foreign Affairs Minister Lawrence Cannon said Sunday the federal government is still pondering whether to appeal a Federal Court order on the Omar Khadr case.

On CTV's Question Period, Cannon reiterated the government is "looking very seriously" whether to appeal the order that it request the United States to send Khadr home from the U.S. military prison in Guantanamo Bay, Cuba.

In a ruling released Thursday in Omar Ahmed Khadr v. The Prime Minister of Canada et al., Federal Court Judge James W. O'Reilly ordered the Stephen Harper government to demand Mr. Khadr's return to Canada from Guantanamo "as soon as is praticable."  

Mr. Kadr was 15 years old when he was originally detained in Afghanistan and accused of throwing a grenade at an American soldier.

The court's ruling comes at a time when Americans are actively debating whether criminal or congressional investigations are warranted into the use of so-called "harsh investigation methods" in Guantanamo and elsewhere, on orders of the departed Bush administration.   The Federal Court, however, makes it clear that Canada's federal government was complicit in the American utilization of these investigative "techniques" upon Mr. Khadr.

In view of recent developments in Washington, the Prime Minister's apparent resistance to the Federal Court's ruling seems particularly perplexing.  U.S. Attorney General Eric Holder is "nearing decision" on the release of an initial group of Guantanamo detainees.  U.S. President Barack Obama's has pledged to close the prison by January, 2010.

In the Khadr ruling, Mr.  Justice O'Reilly pulled no punches in characterizing certain treatment afforded Mr Khadr at Guantanamo as torture, and noted that Canada's government "implicitly condoned" violations of international law by the U.S. government in its detention of Mr. Khadr.  

Excerpts from the Federal Court ruling follow:

[2] Mr. Khadr challenges the refusal of the Canadian Government to seek his repatriation to Canada. He claims that his rights under the Canadian Charter of Rights and Freedoms (sections 6, 7 and 12) have been infringed and seeks a remedy under s. 24(1) of the Charter. More particularly, Mr. Khadr asks me to quash the decision of the respondents not to seek his return to Canada and order the respondents to request the United States Government to repatriate him. Mr. Khadr also asks me to overturn the respondents’ decision on the grounds that it was unreasonable and taken in bad faith. Finally, Mr. Khadr seeks further disclosure of documents in the respondents’ possession.

[3] I am satisfied, in the special circumstances of this case, that Mr. Khadr’s rights under s. 7 of the Charter have been infringed. I will grant his request for an order requiring the respondents to seek his repatriation from the United States... 

...[56] Torture is defined under [The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment] as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession” (Art. 1). The Supreme Court of Israel has concluded that sleep deprivation “for the purpose of tiring [the suspect] out or ‘breaking’ him, … is not part of the scope of a fair and reasonable investigation” and harms “the rights and dignity of the suspect” (Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 at para. 31). Based on that decision, Justice Mosley concluded that the subjection of Mr. Khadr to sleep deprivation techniques offended the CAT.

...[61] Canada also has a duty to “take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts” (Art. 39).

[62] Finally, Canada has recognized “the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth” (Art. 40.1).

[63] The [Convention of the Rights of the Child] imposes on Canada some specific duties in respect of Mr. Khadr. Canada was required to take steps to protect Mr. Khadr from all forms of physical and mental violence, injury, abuse or maltreatment. We know that Canada raised concerns about Mr. Khadr’s treatment, but it also implicitly condoned the imposition of sleep deprivation techniques on him, having carried out interviews knowing that he had been subjected to them.

[64] Canada had a duty to protect Mr. Khadr from being subjected to any torture or other cruel, inhuman or degrading treatment or punishment, from being unlawfully detained, and from being locked up for a duration exceeding the shortest appropriate period of time. In Mr. Khadr’s case, while Canada did make representations regarding his possible mistreatment, it also participated directly in conduct that failed to respect Mr. Khadr’s rights, and failed to take steps to remove him from an extended period of unlawful detention among adult prisoners, without contact with his family. 

[65] Canada had a duty to take all appropriate measures to promote Mr. Khadr’s physical, psychological and social recovery.

...[68] Clearly, Canada was obliged to recognize that Mr. Khadr, being a child, was vulnerable to being caught up in armed conflict as a result of his personal and social circumstances in 2002 and before. It cannot resile from its recognition of the need to protect minors, like Mr. Khadr, who are drawn into hostilities before they can apply mature judgment to the choices they face.

...[91] I find that the Government of Canada is required by s. 7 of the Charter to request Mr. Khadr’s repatriation to Canada in order to comply with a principle of fundamental justice, namely,the duty to protect persons in Mr. Khadr’s circumstances by taking steps to ensure that their fundamental rights, recognized in widely-accepted international instruments such as the Convention on the Rights of the Child, are respected. The respondents did not offer any basis for concluding that the violation of Mr. Khadr’s rights was justified under s. 1 of the Charter.

[92] The ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter. To mitigate the effect of that violation, Canada must present a request to the United States for Mr. Khadr’s repatriation to Canada as soon as practicable.

Scruffy Dan has thorough coverage on the court's ruling and the Harper government's continued waffling: The ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights.

UPDATE I:

Also see Dave at Galloping Beaver, who surgically dissects the case against Khadr, and notes:

The worst part is the part you have not yet gathered in.

The government of the United States of America has told the government of Canada that they are willing to release Omar Khadr to Canadian custody on Canadian soil. All that has to happen is that the Canadian government officially request repatriation. That's the only condition.

Think I'm making that up? Then ask them. I know it's a fact. The US, as a matter of saving face in four different directions, wants to rid themselves of Omar Khadr but they need to do it under the proper optics. All that needs to be done is to have the Harper government make a public request. No back-channels.

Think I'm wrong?

Ask them. Ask them, if the Canadian government made a formal request to the government of the United States for the repatriation of Omar Khadr would he be returned to his country of birth?

Because if that happened Khadr would be on his way to Canada, in custody, but at least where the rule of law still has some meaning.

So, why won' Lawrence Cannon do that?  Because the "conservative" voting base would go ape-sh*t.

Not much of a reason.

UPDATE II:

I'd  highly recommend the helpful analysis of this ruling from McGill University's Human Rights and Legal Pluralism blog:

This is quite a bold decision by Mr Justice O’Reilly, in that it recognizes for the first time a duty on the part of Canada to intervene to protect its citizens abroad under certain circumstances. 

...the Federal Court goes much further than these earlier court orders and finds that Canada’s decision not to seek Khadr’s repatriation in light of Charter violations is itself a breach of the principles of fundamental justice guaranteed in section 7 of the Charter....

... as a rule Canada is under no obligation to intervene abroad to protect its citizens maltreated by another state. The decision whether to do so or not is a royal prerogative, a discretionary power with which courts will normally not interfere unless a Charter right has been breached. This is why it is central to the judgment to find that the decision not to seek Khadr’s return was, in itself, a breach of constitutional guarantees.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Will Cadman 'Bribe' Scandal Undo Harper Government?

Stage 1:

The naming of a scandal...

Cadscam.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE