REASONABLE DOUBT: WHY CANADIANS SHOULD CARE ABOUT APPLE’S FIGHT WITH THE FBI

Our legal system is grappling with many of the same issues involved in this high-profile case

BY , reposted from NowToronto.com, Feb 29, 2016

As you have likely heard by now, the FBI is trying to gain access to an iPhone that was used by one of the attackers in the December mass shooting in San Bernardino. On February 16, lawyers for the FBI obtained an order requiring Apple to create software to break the password protection and access the contents of the phone. Apple is opposing the order and asking a court to rule that it is unlawful. Apple CEO Tim Cook posted a letter online to explain their position to the public, most notably that the creation of a tool to break in to one iPhone would make them all more vulnerable to a security breach.

This dispute has drawn substantial attention in the media. Some may find the reaction to be excessive. However, this is an issue that – at the very least – affects the ability of iPhone users to know that the data on their phone is secure and – at most – is a canary in a coalmine, which has the potential to set the direction for law on digital privacy for years to come.

The issue of lawful intrusions into our private digital spaces isn’t unique to the United States. In Canada, production orders, subpoenas and search warrants are regularly served upon major telecommunication, social media, and technology corporations. One of the most significant cases of its kind was decided just last month.

In R. v. Rogers Communications, the Peel Regional Police were investigating a string of jewelry store robberies. They obtained a production order for Rogers and Telus, demanding ‘tower dumps’ of 21 cell towers in the area of the robberies. A tower dump requires the wireless service provider to assemble records of all cellular traffic that occurred at a particular cell tower within a specified timeframe. The information includes the names of the callers near the tower, the people they called, their locations and even their credit card information.

The lawyers for Rogers and Telus argued that it can require significant resources to produce this data, depending on the breadth of the request. More importantly, from the perspective digital privacy rights, requests of this nature infringe the rights of the public to be free from unreasonable search and seizure, as protected by section 8 of the Charter of Rights and Freedoms. Justice Sproat agreed with these arguments and found that these orders did infringe section 8 privacy rights of the subscribers whose records were produced in the tower dump. He found that the orders were overly broad and were, therefore, unlawful.

Justice Sproat’s ruling creates an important precedent in Canadian law during a time when digital privacy rights need more clarification. It may provide some guidance on another interesting cell phone case which returns to the Toronto Superior Court today. The RCMP is currently attempting to seize a VICE journalist’s cellphone. Unfortunately, the RCMP have obtained a sealing order to prohibit publication of many details of the case.

As our lifestyles become increasingly digital, the amount of information about our daily movements and communications increases as well. As Justice Fish stated on behalf of the Supreme Court of Canada in R. v. Morelli, “It is difficult to imagine a search more intrusive, extensive or invasive of one’s privacy than the search and seizure of a personal computer.” He wrote those words in 2010, only six years ago. Even then, it would have been difficult to imagine how our most sensitive data would spread from our desktops to smartphones, smartwatches and beyond. If we become lax on the extent to which law enforcement can gain access to these devices, it will likely follow that other agencies will be permitted to creep into digital domains more easily.

Within the commentary about Apple’s case is the astute observation that Apple, and the other companies who are on the receiving end of these orders, are usually large, publicly traded organizations with a profit-driven bottom line. When reading Tim Cook’s letter to his customers, it’s easy to be wooed into thinking that he is fighting for your own personal data privacy. In reality, the long-term cost to Apple of a security breach created by compliance with the FBI’s order would be enormous. As Brian Feldman points out in New York Magazine, Apple’s motivations in this battle are of little relevance to this debate. This may be one of those rare occasions where the interests of the free market and our collective, civil-libertarian interests are aligned.

Apple’s motion is set to be argued on March 22, 2016.

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Brian Eberdt is a criminal defence lawyer with Lockyer Campbell Posner. Reasonable Doubt appears on Mondays.

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Lockyer Campbell Posner or the lawyers of Lockyer Campbell Posner.

[email protected] | @nowtoronto

CETA announcement is smoke and mirrors: Council of Canadians

ISDS 101 infographic
Click to enlarge

MEDIA RELEASE, Council of Canadians, Feb 29, 2016

Today’s announcement of modifications to investor-state dispute settlement (ISDS) provisions of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) is smoke and mirrors, says the Council of Canadians. Council representatives are available to comment on the announcement.

“The government is presenting this reform to CETA as a ‘fairer, more transparent, system,’ but it still enshrines corporate rights and enables giant European corporations to sue the Canadian government. Tinkering with the dispute settlement process doesn’t change this fundamental flaw,” says Garry Neil, Executive Director of the Council of Canadians.

“This is a dangerous new way to give transnational corporations their own court, which local companies and groups can’t access,” says Maude Barlow, National Chairperson of the Council of Canadians. “These changes don’t address the concerns that led to the massive public outcry over ISDS in both Canada and Europe.”

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Canada moves a step closer to ratifying ‘gold-plated’ trade deal with EU

Changes to investment chapter reflect ‘shared intent’ to strengthen right to regulate provisions: Freeland

International Trade Minister Chrystia Freeland says she hopes to ratify the Canada-EU trade deal later this year.
nternational Trade Minister Chrystia Freeland says she hopes to ratify the Canada-EU trade deal later this year. (Adrian Wyld/Canadian Press)

By Susan Mas, reposted from CBCNews, Feb 29, 2016

The Canadian government is one step closer to ratifying a “gold-plated” trade deal with the European Union, says International Trade Minister Chrystia Freeland on the agreement in principle reached by the previous Conservative government in 2013.

The Canada-European Union Comprehensive Economic and Trade Agreement (CETA) is expected to remove 98 per cent of EU tariffs on a wide range of Canadian products.

“This is really a gold-plated trade deal. It is going to bring tremendous benefit to Canadians and to Europeans, we are going to feel it all in a real increase in prosperity,” Freeland said in Ottawa on Monday.

Freeland announced that some amendments have been made to a controversial investment protection clause which had become a sticking point in negotiations between the two countries.

“I’m absolutely confident that Canadian investors and Canadian businesses will have their rights fully protected in this agreement,” Freeland said as she in Ottawa on Monday.

Freeland said the modifications were made as part of the legal review of the English text of the CETA deal.

“There have been some modifications to the investment chapter to reflect the shared intent of Canada and the EU to strengthen our provisions on the right to regulate…,” Freeland said.

“We strongly believe that we have responded to Canadians, to EU citizens, to businesses with a fair, transparent and impartial system.”

The minister said she hopes the deal will be ratified later this year and come into force some time in 2017.

She was joined by Catherine McKenna, minister for the environment and climate change.

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Building better relationships with First Nations

by Hugh MacAulay,reposted from CanadianLawyerMag.com, Feb 29, 2016

Building better relationships with First NationsAs the federal government undertakes to renew its relationship with indigenous peoples, all levels of government — and more and more companies — continue to build relationships with First Nations.”

I offer some thoughts that might be helpful to your clients, whether government officials or representatives of companies, in building better relationships with First Nations. These thoughts are drawn from my 19 years as counsel for the federal government and they are my own.

The importance of building better relationships with First Nations was underscored by the Supreme Court of Canada in the opening paragraph in Mikisew Cree First Nation v. Canada:

The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding. The multitude of smaller grievances created by the indifference of some government officials to aboriginal people’s concerns, and the lack of respect inherent in that indifference has been as destructive of the process of reconciliation as some of the larger and more explosive controversies.

 

Building relationships in “the shadow of a long history of grievances and misunderstandings” is often not easy. Focusing on these simple thoughts might help:

Respect

Encourage your internal clients to make respect the foundation of every relationship with a First Nation.
When I began meeting with First Nations many years ago, I was surprised to hear the word respect used much more often than words such as title and rights. I learned that it is usually where respect has been lacking that the word is heard most often. Without respect, it will be impossible to build a strong relationship.

Be guided by the golden rule: Encourage your clients to treat First Nations and their representatives as your clients expect to be treated.

Do better

Reaching agreement with a First Nation on issues relating to aboriginal title and rights may seem daunting. Committing to do better may be a helpful early step in building a stronger relationship and perhaps reaching agreement on other issues.

Together

Encourage your clients to work together with First Nations. If a project needs to be studied, commission the study together. If a plan or proposal needs to be developed, develop it together. Collaborate as much as possible. Share information. Even in litigation, explore ways to co-operate.

Long term

Build long-term relationships with First Nations. If the first time your client meets with a First Nation is when your client is seeking to resolve an issue or reach an agreement, achieving resolution or agreement will be more difficult. Resolving issues and reaching agreement usually requires trust. As Doug Eyford emphasized in his 2013 report to former Prime Minister Stephen Harper — Forging Partnerships Building Relationships: Aboriginal Canadians and Energy Development — effective relationships are best achieved through sustained engagement.

People

Encourage your clients to get to know the people they are building a relationship with away from meetings and negotiations. Join representatives of the First Nation for a meal before or after meetings.
One of my clients supervised a team working throughout a large region. He told the members of that team not to pass any First Nation’s office without stopping in to say hello. A chief once told me that he was impressed that one of my clients had taken his children to watch the First Nation’s weekend fishery.
When I mentioned this to my client, he said that he did not mean to impress the chief or the First Nation, he just thought it would be a great experience for his kids.

Experiences like these may even contribute in small and unexpected ways to what the Supreme Court of Canada cited as the fundamental objective — reconciliation between aboriginal and non-aboriginal Canadians.

If these thoughts are helpful to you and your clients, all credit goes to the clients and representatives of First Nations that I worked with over the years. Everything I know about relationship building I learned from them.

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Hugh MacAulay is counsel with ICBC claims legal services in Vancouver.

Canada’s Asbestos Workers Condemn BC Supreme Court Ruling That Endangers Worker Safety

Reuters

Media Release by Canadian Conference of Asbestos Workers, reposted from Benzinga.com, Feb 29, 2016

REGINA, SK -(Marketwired - February 29, 2016) - Today, the Canadian Conference of Asbestos Workers (CCAW) expressed shock and anger on behalf of Canada’s asbestos workers in response to a BC Supreme Court ruling rejecting health and safety claims on the grounds the safety regulations were too complicated for asbestos removal contractors to follow.

“The health and safety of Canadian workers is never too complicated to protect,” said Vince Engel, Western Canadian Vice-President of the International Association of Heat and Frost Insulators and Allied Workers. “The harmful effects of exposure to asbestos are undeniable. We are outraged that the court has decided health and safety laws are simply too complex to be enforced,” Engel added.

On Friday, BC Supreme Court Justice George Macintosh dismissed a contempt of court application against asbestos removal contractors Mike and Shawn Singh of Seattle Environmental, despite significant testimony that safety laws were breached. WorkSafeBC filed the contempt of court application against Seattle Environmental after repeated warnings were ignored, including a 2013 BC Supreme Court order to follow safe asbestos removal regulations.

In a stunning ruling, Justice Macintosh said that safe asbestos removal laws and regulations were “voluminous and complex”, likening the complexity to “looking through the Income Tax Act”.

Asbestos exposure is the single largest workplace killer in Canada. Since 1996, almost 5,000 approved death claims stem from asbestos exposure, making it by far the top source of workplace death in Canada. In 2013, the 368 asbestos related death claims were greater than those from highway accidents, fires and chemical exposures combined.

The CCAW and its members are calling on WorkSafeBC to appeal the ruling, which they insist sets a dangerous precedent allowing contractors to violate safety laws.

“This decision sends a dangerous message to contractors that safety laws can be ignored if they seem too complicated to follow,” said Fred Clare, Eastern Canadian Vice-President of the International Association of Heat and Frost Insulators and Allied Workers. “These health and safety laws are supposed to protect the lives of asbestos workers in Canada. But what good are these rules if they aren’t enforced, and there are no penalties for breaking the law?” asked Clare.

The CCAW calls on all levels of government to ensure better enforcement of the rules and regulations in place to protect the safety of asbestos workers in Canada.

About the Canadian Conference of Asbestos Workers

The CCAW is an association consisting of nine local unions in Canada affiliated with the International Association of Heat and Frost Insulators and Allied Workers. The CCAW represents approximately 6000 Insulators and Asbestos workers in Canada.

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Leonardo DiCaprio Uses Oscar Speech to Speak Out on Climate Change

Leonardo DiCaprio OScars 2016
CHRIS PIZZELLO/INVISION/AP

By Margaret Lenker, reposted from Variety, Feb 28, 2016

While Leonardo Dicaprio took home his first Oscar Sunday at the 88th annual Academy Awards, he used his speech to discuss climate change, emphasizing that he saw the direct results of the changing planet while filming “The Revenant.”

“Making ‘The Revenant’ was about man’s relationship to the natural world, the world that we collectively felt in 2015 as the hottest year in reported history — our production needed to move to the southern tip of this planet just to be able to find snow,” DiCaprio said. “Climate change is real. It is happening right now. It’s the most urgent threat facing our entire species and we need to work collectively together and stop procrastinating.”

Dicaprio continued, “We need to support leaders around the world who do not speak for the big polluters, but who speak for all of humanity, for the indigenous people of the world, for the billions and billions of underprivileged people out there who would be most affected by this. For our children’s children, and for those people out there whose voices have been drowned out by the politics of greed. I thank you all for this amazing award tonight. Let us not take this planet for granted. I do not take tonight for granted.”

An environmentalist, the actor often uses social media as a platform to inform others about the planet’s issues, often retweeting President Obama, Wold Wildlife Fund and Greenpeace and sharing relevant articles on his Facebook page. Earlier this month, Dicaprio received the Crystal Award,which recognizes the achievements of leading artists who have shown commitment to improving the state of the world, at the World Economic Forum.

DiCaprio wasn’t the only winner to speak out about climate change. Jenny Beavan, who won best costume design for “Mad Max: Fury Road,” also took the opportunity to talk about the environment.

“I just want to say one quite serious thing, I’ve been thinking about this a lot, but actually it could be horribly prophetic, ‘Mad Max,’ if we’re not kinder to each other, and if we don’t stop polluting our atmosphere, so you know, it could happen,” Beavan said.

Aboriginal leaders are warning of the mental health cost of climate change in the North

First Nations and Inuit communities in the North are coping with growing despair over climate change, a problem observers are connecting to mental health and social problems.

A 2010 winter in Rigolet, a coastal Labrador Inuit community that is on the front lines of climate change. The changes are taking a psychological toll on this isolated community.
A 2010 winter in Rigolet, a coastal Labrador Inuit community that is on the front lines of climate change. The changes are taking a psychological toll on this isolated community. MY WORD: DIGITAL MEDIA LAB

By , reposted from TheStar, Feb 29, 2016

It’s mid-February and the ice roads into and out of Deer Lake First Nation still aren’t reliable enough to officially open, a reality that weighs heavily on the minds of residents.

“It’s very late. It’s bad. We want to get our stuff, our supplies, housing materials, fuel. I don’t know if we’ll be able to get it this year (by road),” said chief Roy Dale Meekis. “You feel isolated.”

Anxieties are high in this small Oji-Cree community, located about 700 kilometres northwest of Thunder Bay. An unusually warm winter in Ontario’s north — what’s expected to become the new norm in a changing climate — has left the roads unstable and unsafe, and kept local road groomers out of work.

More supplies have to come by air, meaning higher costs for food, diesel fuel, medicines and bottled water in a community that has been under a drinking water advisory since 2001. To reduce demand for fuel, Deer Lake recently installed a 624-panel solar system to power the school. It helps, but doesn’t address the isolation.

“It is a big concern, but what can we do? There’s nothing we can do,” said Meekis.

Deer Lake isn’t alone. Ontario has roughly 3,100 kilometres of ice roads that keep about 30 remote First Nation communities connected to the rest of the province. Historically, those roads could be relied on for 70 to 80 days during winter months. But shorter and warmer winters have significantly narrowed that window, sometimes to fewer than 30 days.

No community is more aware of the risks than Deer Lake. Meekis’ second uncle, former deputy chief Henry Meekis, drowned in late 2012 after the ice-road grooming machine he was driving plunged through the ice.

“There’s something definitely wrong in the North,” said Isadore Day, Ontario’s regional chief for the Assembly of First Nations.

In an interview, Day said he suspects that despair over climate change — its impact on roads, infrastructure, hunting traditions and the surrounding environment — is contributing to mental health and social problems in northern aboriginal communities, possibly even to record-breaking suicide rates.

He has called on the province and federal government to conduct a major climate change impact study for the North, one that would involve extensive consultations with community elders who have lived off the land for decades and can share their traditional ecological knowledge.

“A study of this nature, if done, will have the added effect of short-circuiting the anxiety we have of being left out of this growing national discussion on climate change policy,” said Day.

Ashlee Cunsolo Willox, an assistant professor of indigenous studies at Cape Breton University, said the connection between mental health and climate change in Canada’s North is growing stronger and in “urgent” need of further investigation.

“There’s this dialogue that’s just waiting to leap out into the national and international consciousness,” she said. “In Canada, we have this active fishing culture, active farming culture, and large Arctic indigenous groups who are on the front lines of climate change, yet we have been really quiet on this topic.”

Cunsolo Willox is trying to make some noise. In late 2009, as part of her PhD dissertation, she began interviewing residents of Nunatsiavut, Labrador, to learn how Inuit communities were coping with the effects of climate change. After conducting and analyzing 85 in-depth interviews and collecting 112 questionnaires, it became clear to her that people were struggling emotionally and psychologically.

Family stress was elevated. Anxiety and depression seemed to be amplified. More people were turning to drugs and alcohol and having suicidal thoughts.

An evening camp fire in Rigolet. The effects of climate change are weighing heavy on this coastal Labrador Inuit community.
An evening camp fire in Rigolet. The effects of climate change are weighing heavy on this coastal Labrador Inuit community.

Many appeared to be grieving the changes in the environment — rising temperatures, volatile weather, delayed ice formation, shortened seasons, melting permafrost and shifting habitat, to name a few. Australian philosopher Glenn Albrecht coined the word “solastalgia” in a 2005 paper to describe the feeling.

Cunsolo Willox said she was moved to tears by the deep connection the Inuit she spoke with have to the land, but it only hit her after returning home and listening to the interviews she had recorded.

“It’s so hard to articulate how close they are to it and part of it – their breathing, their skin, their bones, their blood. So even subtle impacts on the environment can have major impacts on how they feel,” said Cunsolo Willox, who co-produced a 2014 documentary based on her research called Lament for the Land.

“I spent months bearing witness to their pain. It was incredibly hard. I had a complete breakdown.”

Another observation: the people she interviewed weren’t talking to each other about it. Even health professionals in the community were feeling the impact, but didn’t connect the dots. It was only after Cunsolo Willox sparked a community conservation that people realized they weren’t alone – that many others were silently struggling.

“I think people are scared to engage because it’s bloody scary and painful to really think about it,” she said.

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New Dáil must tackle the critically important climate change issues

The new Dáil, however it is composed, will have only a short window of time to engage with critically important climate change issues, says Cara Augustenborg

Removing our dependence on fossil fuels is an enormous challenge, but it is easier than addressing the effects of climate change later.

By Cara Augustenborg, reposted from the IrishExaminer, Feb 29, 2016

Every four years, we add a day to the year to synchronise our calendar with the Earth’s revolution around the sun because, as climate activist and Canadian author, Naomi Klein, says “it’s easier to change our human systems than to change the laws of nature”.

The same can be said with respect to addressing climate change. While removing our dependence on fossil fuels such as coal, oil, peat, and gas is an enormous societal challenge, it is still easier and cheaper than addressing the horrendous impacts of climate change later down the road.

That’s why, as part of leap day this year, groups around the world are holding events to push for a justice-based transition away from fossil fuels and towards new economic and energy systems. In more than 20 countries, there are teach-ins, film screenings, community forums, and mobilisations happening to make 2016 a true leap year for the climate justice movement.

This leap day movement began in Canada last September driven by Naomi Klein and a number of Canadian celebrities — actors Donald Sutherland and Rachel McAdams and musicians Neil Young, Leonard Cohen, and Alanis Morissette.

Canada’s reputation for climate action is one of the worst in the world, placed among the top 10 global emitters of greenhouse gases with per capita emissions of 20 tonnes of carbon dioxide annually — slightly higher than Ireland’s own per capita emissions of 17 tonnes per annum.

Extraction of Canada’s lucrative oil sands (a mixture of sand, clay, water, and bitumen) are the leading cause of their increasing greenhouse gas emission. So it wasn’t surprising when Klein launched the Leap Manifesto last September, calling Canada’s record on climate change “a crime against humanity’s future” and urging for a rapid shift to a fully sustainable energy economy over the next two decades, it was met with harsh criticism within Canada’s corporate press, which claimed the manifesto advocated the “overthrow of capitalism” and would crash the Canadian economy.

In reality, the Leap Manifesto was simply a science-based, independent political platform to address climate change and social rights through a transition to a renewable energy-based economy. It’s simple, all-inclusive approach attracted the approval of more than 33,000 Canadian citizens, including endorsement by more than 100 Canadian organisations.

Ireland’s equivalent of the Leap Manifesto, Post-Carbon Ireland, was launched just before the election. In an unprecedented effort by 29 academics from across the Irish universities, it called for one key action all political parties could support: the immediate establishment of a Citizens’ Convention for a Post-Carbon Ireland. The convention would enable the sustained, citizen-led engagement to unite all of society in planning and creating a just, managed, transition to a secure, flourishing, and authentically sustainable post-carbon world.

Within weeks of its launch, the convention garnered support from more than 600 signatories and received unconditional support from People Before Profit and the Green Party and equivocal support from Sinn Féin, Fianna Fáil, Labour, People Before Profit, and Fine Gael.

The overwhelming scientific evidence demonstrating on impacts of climate change and the historic UN’ Paris Climate Agreement soon to be ratified by nearly 200nations mean climate change can no longer be ignored.

To avoid a planetary emergency, we must keep 80% of our known fossil fuel reserves in the ground and commit to no longer exploring for any more oil or gas. We must become a fossil-fuel free society by 2050, little over three decades away. To achieve this in Ireland, we have only a short window of time left to make the decisions in our transport, energy and agricultural sectors necessary for such a dramatic transition.

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That means that our 32nd Dáil has some significant decisions to make in the next five years to transition to a low-carbon society, and it must involve Irish citizens in those decisions to guarantee success.

The challenge of achieving the low-carbon transition remained marginal to political debates throughout the 2016 general election campaign, further underlining the importance of the call for a citizens’ convention to raise public awareness of the issue and to generate momentum for policies to address the immense challenge of reducing Ireland’s greenhouse gas emissions at the scale and speed necessary under the Paris Climate Agreement.

Now, as a new government is formed, we anxiously await the formation of this citizens’ convention to join the leap away from fossil fuels and toward a Post-Carbon Ireland.

To join the call for a Citizens’ Convention toward a Post-Carbon Ireland, see www.postcarbonireland.org. For more on the Leap Manifesto, see www.leapmanifesto.org and www.CaraAugustenborg.com

© Irish Examiner Ltd. All rights reserved

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