Quotulatiousness

July 13, 2019

Piling on the charges to encourage plea bargaining – modern policing at work

Filed under: Cancon, Law, Liberty, USA — Tags: , , , , , — Nicholas @ 03:00

A recent local crime story included the following laundry list of charges for one of the accused:

Shaquille Lovell, 21, of Ritson Road South in Oshawa is charged with careless carry of a prohibited firearm, contravention of storage regulations, unauthorized possession of a firearm, possession of a firearm knowing its possession is unauthorized, possession of a loaded prohibited firearm, and possession of a controlled substance for the purpose of trafficking (cocaine).

He was found to be carrying a prohibited weapon (a handgun) and a controlled substance (cocaine). Those two offences should be more than enough to prosecute with strong chance of conviction. All the rest of the bafflegab charges appear to be piled on to encourage plea bargaining, because they’re literally peripheral to the main criminal activity the accused has been charged with.

Lawyers, especially legal aid lawyers, will encourage the accused to “bargain down” the charges — one of the reasons for so many separate charges being applied — to avoid the cost and delay of a full trial … and the risk of facing the full potential sentence. Even relatively well-to-do middle class people will be more likely to want to avoid a long, drawn-out legal battle because it might well cost them everything they own. Poor people don’t even have that much of an option.

Canadian law enforcement is continuing to follow down the path of the United States, where a 90% conviction rate is considered low. According to Statistics Canada, “In 2013/2014, 63% of all cases completed in adult criminal court resulted in a finding of guilt”, but also “The extent to which plea negotiations are utilized in Canada currently remains unknown.”

July 12, 2019

Mark Steyn urges caution when considering the Epstein case

Filed under: Government, Law, Politics, USA — Tags: , , , , — Nicholas @ 03:00

It may make sense to avoid a rush to judgement, as the way the federal justice system works these days does not encourage a belief in its impartiality or, for that matter, its dedication to the concept of “justice”:

I am wary of saying anything too definitive re the Jeffrey Epstein case, because so much of the reporting is way too trusting of the federal prosecutors’ official narrative. Don’t get me wrong: I take it as read that he’s an industrial-scale pedophile, if only because it seems to be the only thing anybody knows about him – including how he made his billion dollars. He apparently requires three “massages” a day by underage girls. So, upon being informed that Mr Epstein was flying his “Lolita Express” around Africa with Bill Clinton, Kevin Spacey and a softcore porn actress called Chauntae Davies on board, I’m disinclined to accept the official explanation that this was an Aids-relief “humanitarian” mission.

Mug shot of Jeffrey Epstein made available by the Palm Beach County Sheriff’s Department, taken following his indictment for soliciting a prostitute in 2006.
Image via Wikimedia Commons.

That said, as longtime readers know, I regard federal justice as appallingly corrupt, and so the sudden revival of Epstein’s prosecution is somewhat more than intriguing. First, and as often with prominent American cases, the details make no sense:

    In a memo filed to the court, prosecutors outlined the scope of Epstein’s vast wealth to argue that he has the means to flee the country and escape prosecution, noting that he not only has homes in Manhattan, Palm Beach, New Mexico and Paris — with his Upper East Side townhouse, of which prosecutors are seeking the forfeiture, alone worth $77 million — but also owns a private island in the US Virgin Islands.

    He also has three US passports, owns at least 15 vehicles and has access to two private jets, according to the memo.

I can understand how a rich man comes to have fifteen cars, but how pray, does one individual citizen acquire three US passports? And from a government supposedly on “orange alert” these last eighteen years.

Second, Epstein was the beneficiary of a ludicrously lenient federal plea deal a decade ago for exactly the same charges. So this would appear to be “double jeopardy”. Not so fast, say the feds:

    It is well-settled in the Second Circuit [appellate court] that a plea agreement in one US Attorney’s office does not bind another unless otherwise stated.

Is that so? Thanks to that litigious loser Cary Katz, I’m more familiar with Second Circuit jurisprudence than I might otherwise wish. But I had no idea of the above. So apparently, when you enter into a plea deal with “the United States” that says things like “the United States, in consultation with and subject to the good faith and approval of Epstein’s counsel, shall select an attorney representative for…” and “if Epstein successfully fulfills all of the terms and conditions of this agreement, the United States also agrees that it will not institute any criminal charges against…”, the words “the United States” only apply to the United States that resides at 27 Ocean View Parkway, Miami Beach and not the United States that resides at 32b Rotting Wharf Lane, The Bronx. So forget double jeopardy; you could have demicentuple jeopardy. Who knew?

One more thing: it seems fairly obvious that Epstein is also a procurer for those whose appetites likewise run to schoolgirls. This is where the manifests of his airplane are at least somewhat inferential. Yet the new indictment is concerned only with “the New York Residence” and “the Palm Beach Residence” — and not the Lolita Express jetting well-heeled buddies to Paedo Island. Is this some cozy arrangement to ensure that Bill Clinton et al are excluded from the case?

July 11, 2019

The genesis of the administrative state during the Great Depression

Filed under: Cancon, History, Law, USA — Tags: , , , , — Nicholas @ 03:00

Leonid Sirota provides some interesting background on the rise of the administrative state during the 1930s:

Top left: The Tennessee Valley Authority, part of the New Deal, being signed into law in 1933.
Top right: FDR (President Franklin Delano Roosevelt) was responsible for the New Deal.
Bottom: A public mural from one of the artists employed by the New Deal’s WPA program.
Wikimedia Commons.

To a degree that is, I think, unusual among other areas of the law, administrative law in the United States and, to a lesser extent, in Canada is riven by a conflict about its underlying institution. To be sure there, there are some constitutional lawyers who speak of getting rid of judicial review of legislation and so transferring the constitution to the realm of politics, rather than law, but that’s very much a minority view. Labour unions have their critics, but not so much among labour lawyers. But the administrative state is under attack from within the field of administrative law. It has, of course, its resolute defenders too, some of them going so far as to argue that the administrative state has somehow become a constitutional requirement.

In an interesting article on “The Depravity of the 1930s and the Modern Administrative State” [PDF] recently published in the Notre Dame Law Review, Steven G. Calabresi and Gary Lawson challenge the defenders of the administrative state by pointing out its intellectual origins in what they persuasively argue was

    a time, worldwide and in the United States, of truly awful ideas about government, about humanity, and about the fundamental unit of moral worth—ideas which, even in relatively benign forms, have institutional consequences that … should be fiercely resisted.

That time was the 1930s.

Professors Calabresi and Lawson point out that the creation of the administrative state was spearheaded by thinkers ― first the original “progressives” and then New Dealers ― who “fundamentally did not believe that all men are created equal and should democratically govern themselves through representative institutions”. At an extreme, this rejection of the belief in equality led them to embrace eugenics, whose popularity in the United States peaked in the 1930s. But the faith in expertise and “the modern descendants of Platonic philosopher kings, distinguished by their academic pedigrees rather than the metals in their souls” is a less radical manifestation of the same tendency.

The experts, real or supposed ― some of whom “might well be bona fide experts [while] [o]thers might be partisan hacks, incompetent, entirely lacking in judgment beyond their narrow sphere of learning, or some combination thereof” ― would not “serve as wise counselors to autonomous individuals and elected representatives [but] as guardians for servile wards”. According to the “advanced” thinkers of the 1930s, “[o]rdinary people simply could not handle the complexities of modern life, so they needed to be managed by their betters. All for the greater good, of course.” Individual agency was, in any case, discounted: “the basic unit of value was a collective: the nation, the race, or the tribe. Individuals were simply cells in an organic whole rather than ends in themselves.”

H/T to Colby Cosh for the link.

July 10, 2019

Fake news, whacky conspiracy theories, and the arrest of Jeffrey Epstein

Filed under: Law, Media, Politics, USA — Tags: , , , , — Nicholas @ 05:00

In The Week, Matthew Walther uses the Epstein case to illustrate why many so-called “low information voters” tend to believe all sorts of odd things like Pizzagate:

The arrest of the apparent billionaire investor Jeffrey Epstein at a New Jersey airport on Saturday on federal charges for crimes he was accused of during the Bush administration should not be surprising to anyone who has followed the news carefully. He may have escaped in 2008 with a ludicrous one-year stint in a county jail that he was allowed to leave six days a week, but his name has never quite been out of the headlines. Between 2008 and 2015 Epstein reportedly settled more than a dozen lawsuits from Jane Does alleging sexual assault; the youngest of his alleged victims was 14 years old.

Mug shot of Jeffrey Epstein made available by the Palm Beach County Sheriff’s Department, taken following his indictment for soliciting a prostitute in 2006.
Image via Wikimedia Commons.

The only question is why did it take this long? Why was the ludicrous deal that gave Epstein and his fellow conspirators immunity in exchange for a slap-on-the-wrist jail sentence ever allowed to go through in the first place?

[…]

We should keep all of this in mind the next time we feel inclined to sneer at so-called “low-information voters,” especially the kookier sort. You know the people I mean. Wackos. Gun nuts. 8channers. Conspiracy theorists in Middle America who watch InfoWars (one of the few journalistic outlets to discuss the issue of pedophilia regularly) and post about QAnon and “spirit cooking” and the lizard people. The news that a globalized cabal of billionaires and politicians and journalists and Hollywood bigwigs might be flying around the world raping teenaged girls will not surprise them in the least because it is what they have long suspected. For the rest of us it is like finding out that the Jersey Devil is real or turning on cable news and finding Anderson Cooper and his panel engaged in a matter-of-fact discussion of Elvis’s residence among the Zixls on the 19th moon of Dazotera.

Among other things, the Epstein case forces us to ask ourselves some uncomfortable questions about the real meaning of “fake” news. There is, or should be, more to being informed than fact-checking formalism. If you have spent the last few years earnestly consuming mainstream left-of-center media in this country you will be under the impression that the United States has fallen under the control of a spray-tanned Mussolini clone who is never more than five minutes away from making birth control illegal. If you watch Fox News and read conservative publications, you no doubt bemoan the fact that Ronald Reagan’s heir is being hamstrung by a bunch of avocado toast-eating feminist witches. Meanwhile, Alex Jones’s audience will tell you that America, like the rest of the world, is ruled by a depraved internationalist elite whose ultimate allegiance is not to countries or political parties or ideologies but to one another. These people believe in nothing. They will safeguard their wealth and privilege at any cost. They will never break rank. And they will commit unspeakable crimes with impunity, while anyone who dares to speculate openly is sued or hounded out of public life as a kook.

July 8, 2019

Ottawa defends intrusive impaired driving rules against Maxime Bernier’s criticism

Filed under: Cancon, Law, Liberty — Tags: , , , , , — Nicholas @ 05:00

Ali Taghva reports on the contretemps over federal impaired driving rules that PPC leader Maxime Bernier slagged on Twitter:

Earlier today the official Twitter account for the Department of Justice had to issue a clarification after Maxime Bernier, the leader of the People’s Party of Canada, called the organization out for posting a worrying public announcement in both English and French.

In their original announcement, the Justice Canada account clearly stated that you could be arrested if you were to enjoy a drink after driving. The statement seemed to include summer time drinking on your own patio, noting that “It’s summertime and the living is easy! Whether you’re sitting on a patio or having a backyard #BBQ, remember it’s against the #law to have a blood alcohol concentration over prohibited levels within two hours of driving.”

The clarification posted since then pointed to a section in the law that prohibits conviction for those who decide to drink after arriving home safely.

I’d laugh at the awkward tweets if the actual law and the potential repercussions weren’t so damn serious.

While Justice Canada has issued a clarification, their mistake only highlights the tip of the iceberg when it comes to problems with the recent legal changes brought forward through the adoption of Bill C-46 and its cousin C-45.

July 3, 2019

QotD: Elon Musk as a modern-day Ferdinand DeLesseps

Filed under: Business, Law, Quotations, USA — Tags: , , , , — Nicholas @ 01:00

I used to love Elon like everyone else. I still think that having four or five billionaires in a space race against each other is finally the world I thought I was going to get growing up reading Heinlein. The Tesla Model S was probably one of the most revolutionary cars of the last 50 years. But he lost me when he committed outright fraud in the Solar City – Tesla deal and since then have only become more skeptical about he and Tesla.

Elon Musk at the 2015 Tesla Motors annual meeting.
Photo by Steve Jurvetson via Wikimedia Commons.

I sort of laugh when folks tell me that really smart successful rich people believe in Tesla. You mean like James Murdoch, on the board of Tesla and who also was lost his entire investment in Theranos? Or like Larry Ellison, an adviser and fan of Elizabeth Holmes who invested $1 billion in Tesla just 6 months ago and has already lost 40% of it? The window on this is probably closing, but over the last 10 years if you wanted to get Silicon Valley investors to throw a lot of money at you, find a traditional bricks and mortar business and devise a story in which you take that industry and convert its economics to that of the networked software world (see: Uber, WeWork, Tesla, and even Theranos in some of its strategic pivots).

Or how about true millennials and Elon Musk? Name a wealthy millennial supporter of Elon Musk and Tesla and I can bet you any amount of money they have not looked at Tesla’s balance sheet or cash flow or the details of its global demand trends. They have not thought about its dealership strategy or manufacturing strategy and the cash flow implications of these. They just like what Elon says. It sounds big and visionary. They buy into Elon’s formulation that he is saving the environment and everyone opposed to him is in a cabal with big oil (ignoring the fact that Elon routinely uses his Gulfstream VI to commute distances less than 60 miles). So saying that rich millenials adore Elon is effectively saying that they want to be associated with the same things Elon says he is for — the environment and space travel et al.

Elon Musk is Ferdinand DeLesseps. He is PT Barnum. He is Elizabeth Holmes. He is the pied piper. He is fabulous at spinning visions and making them sound science-y. But he is not Tony Stark. There is a phenomenon with Elon Musk that everyone thinks he is brilliant until they hear him speak about something about which they have domain knowledge, and then they realize he is full of sh*t. For example, no one who knows anything about transportation or physics or basic engineering has thought his Boring Company and Hyperloop make any sense at all. His ideas would have been great cover stories for Popular Mechanics in the 1970’s, wowing 13-year-old boys like me with pictures of mile-long cargo blimps and flying RV’s. He is like a Marvel movie that spouts science that is just believable-enough sounding that it moves the plot along but does not stand up to any scrutiny.

All of this would be harmless if he was not running a public company. I don’t really care about the rich folks who were duped by Elizabeth Holmes, but hundreds of thousands of small millenial investors who have totally bought into the Elon hype are literally putting their last dollar into Tesla, and sometimes borrowing more. Tesla shorts often laugh at these folks on Twitter, calling them “bagholders,” but it is a tragedy. Unless Tesla finds a sugar daddy sucker, and the odds of that are getting longer, I think it is going to end badly for many of these investors.

As a disclosure, I have been short Tesla via puts for a while now. It you really want to understand Elon, the best book I can recommend is The Path Between The Seas about the building of the Panama Canal. First, it is a great book you should read no matter what. And second, Ferdinand DeLesseps is the best analog I can find for Musk.

Warren Meyer, “People Who Express Opinions Outside of their Domain Seldom Have Really Looked into it Much”, Coyote Blog, 2019-05-28.

June 29, 2019

Canada’s inability to deal with Chinese hard ball tactics

Filed under: Business, Cancon, China, Law, USA — Tags: , , , — Nicholas @ 05:00

The Canadian government complied with a request from the United States government to detain a Chinese national for possible extradition to the US. But this was no ordinary Chinese citizen: it was Meng Wanzhou, the Chief Financial Officer for Huawei, a very big and very well-connected Chinese conglomerate. Ms. Wanzhou is not just a high-ranking executive, but also the daughter of the founder of the company. The Chinese government is more than miffed at Canada’s legal presumption and has been piling on the means of persuasion to get Canada’s notoriously pliable government to just pretend this never happened and to let Ms. Wanzhou proceed on her way. Under normal circumstances, this might well happen, but the US government is now under the control of a man who reputedly makes our Prime Minister lose control of his bladder, so we can’t just be seen to knuckle under to the bullying of the Bad Orange Man, nor can we be seen to knuckle under to the bullying of the PRC, leaving poor Justin Trudeau looking weak and powerless (and, to be fair, he is weak and powerless).

Andrew Coyne suggests that the best way to help a couple of poor Canadians who have been caught up in the inter-governmental shenanigans is to stop talking about some sort of “deal”:

U.S. Department of Justice among others announced 23 criminal charges (Financial Fraud, Money Laundering, Conspiracy to Defraud the United States, Theft of Trade Secret Technology and Sanctions Violations, etc.) against Huawei & its CFO Wanzhou Meng
Image via Wikimedia Commons.

I don’t doubt that behind the scenes government officials are doing everything they can, or think they are. But the pressure to bring the Canadians home is surely less for the conspicuous failure of other Canadians to give a damn.

Indeed, what is striking throughout this standoff is that most of the pressure has come from the other side. It is China, not Canada, that has used trade as a weapon, blocking imports of Canadian meat and canola. It was the Chinese air force that buzzed a Canadian warship in the East China Sea.

It is the departing Chinese ambassador to Canada who has launched one incendiary attack after another on this country, while Canada’s now-former ambassador to China was floating trial balloons about getting the Americans to drop the charges against Meng. It is China’s leaders who refuse to meet ours.

And yet for all of China’s lawlessness, for all its bestial mistreatment of our citizens and baseless attacks on our interests, the most common response in this country is not to demand that China repair its relationship with Canada, but to ask how Canada can mollify China.

June 26, 2019

Social media giants can be publisher or platform, but not both

Filed under: Business, Law, Liberty, Media, Politics, USA — Tags: , , , , — Nicholas @ 06:00

At Ace of Spades H.Q., Ace explains why Facebook, Google, and the other social media companies have been playing fast and loose with the rules, sometimes using the rules that apply to publishers and sometimes the ones that apply to platforms, depending on their whim:

Only a speaker or publisher of claimed defamatory content can be sued.

Not being a speaker or publisher of a defamatory statement gives you total immunity from suit. You’re just a guy, you had nothing to do with the tort alleged.

Section 230 [of the Community Decency Act] specifically says that “neutral content platforms” shall not be deemed to be the “speaker or publisher” of a claimed defamatory statement made by a third party using their service — hence, the complete immunity from suit. You can’t be sued for something someone else said, obviously.

Now newspapers can be sued for the defamatory remarks of, say, an interview subject. They are publishers of that defamatory statement — they chose to publish it. The interview subject made the statement, but then they chose to publish it themselves, becoming another “speaker” of the defamation.

Now, “neutral content platforms” are never considered “speakers” of third-party defamations (or any third-party crime involving speech, such as offering to sell contraband or conspiring to commit a crime). But a newspaper or media company — or this blog — could be.

The corporate cucks claim that you cannot put restrictions on Google, Facebook, or Twitter as regards their right to censor opinions they disagree with because that constitutes “compelled speech.” You’re compelling them to speak things they do not believe, the cucks’ argument goes.

But… section 230 states that, as a legal matter, they are not considered the “speakers” of any statement made on their “neutral content platforms.”

So which is it? Are they the speakers of these words — in which case, like a newspaper or tv station, they’d have every right to exercise editorial judgment and decide what they wish their company to say — or are they not the speakers of these words, which is their claim whenever someone tries to sue them?

As it stands, they are speakers when it comes to their power to block people from speaking on their platforms — and thus can indulge in the vice of censorship — but not speakers when it comes to people suing them for what other people said on their platforms.

Choose one or the other: Either you are a speaker of other people’s words or you’re not. You can’t forever choose one and then the other when it’s in your interest to have the Clown Nose On or the Clown Nose Off.

June 23, 2019

They managed to get 7% approval? That’s surprising

Filed under: Business, Law, Liberty, Politics, Technology, USA — Tags: , , , , , — Nicholas @ 05:00

Michael van der Galien reports on a recent poll of registered voters in the United States that will not be happy reading for many social media companies:

Only seven percent are happy with social media companies being able to harvest and sell data without permission or compensation.
Chart from Hill.TV – https://thehill.com/hilltv/what-americas-thinking/449576-poll-voters-overwhelmingly-want-more-regulations-on-personal

Thirty-six percent of those polled say there is no scenario imaginable to them in which it’s OK for companies to collect and sell such information. Read that again: one-third of those asked always oppose companies like Facebook, Twitter, Amazon, and Google collecting and selling such data. Another 36% said they can support the collection and selling of personal data if the individuals involved are compensated for it.

Only 21% say they believe companies should be able to collect and sell personal information of users if they’ve expressly asked for permission. As for selling and collecting it without permission:

    Eight percent of Republicans and also Democratic respondents said that firms should be allowed to sell information without permission. Seven percent of independents agreed.

In other words, this is a bipartisan issue, which makes perfect sense. After all, this issue affects all of us, whether we are conservative or liberal.

Matthew Sheffield has more for Hill.TV:

On Monday, the Washington Post reported that the Federal Trade Commission has been investigating Google’s YouTube division for tracking child users, a practice allegedly in violation of a 1998 law which forbids tracking and targeting children under 13 years of age.

The poll found broad bipartisan agreement on what companies should be allowed to do with consumer data. Eight percent of Republicans and also Democratic respondents said that firms should be allowed to sell information without permission. Seven percent of independents agreed.

About the same number of Democrats and Republicans said that companies should not be able to sell data under any circumstance. Thirty-three percent of GOP respondents took this position, as did 35 percent of Democrats. Forty percent of independents agreed.

Younger voters were more willing to allow companies to sell consumer data than older ones although it was still a minority position. Fourteen percent of respondents who were between 18 and 34 said they supported letting companies compile and sell personal data without permission while only 2 percent of those 65 and above agreed.

June 21, 2019

Lies, damned lies, and hate crime statistics

Filed under: Britain, Law, Media — Tags: , , , , , , — Nicholas @ 03:00

Fraser Myers explains why the much-remarked-upon British crime statistics showing huge increases in hate crimes are much more a statistical artifact than a true reflection of the state of British society:

Allegedly, England and Wales are in the grip of a “surge” in homophobic and transphobic hate crime. “The rate of LGBT hate crime per capita rose by 144 per cent between 2013-14 and 2017-18”, it reports. Hate-crime hotspots like South Yorkshire and Hampshire experienced even larger surges, it claims, with police-recorded crimes rising by 376 per cent and 189 per cent in the same period, respectively.

To make matters worse, according to LBGT campaigners, this rise in hate crime doesn’t even capture the true extent of the hatred out there. Taz Edwards-White, alliance manager at equalities and diversity organisation Metro, told the Guardian that the hate-crime figures were likely to be “the tip of the iceberg”. She and other campaigners say this rise could be down to the rise of right-wing populism.

The truth is rather different. Every year for the past five years, the release of police-recorded data on hate crime has been accompanied by panicked media reports of a hate-crime surge. But as last year’s Home Office report made abundantly clear, large increases “are due to the improvements made by the police in their identification and recording of hate-crime offences and more people coming forward to report these crimes rather than a genuine increase” (emphasis mine).

What’s more, there is a good reason why the “surge” identified by the Guardian takes off in 2013-2014. 2014 was the year the College of Policing released its Hate Crime Operational Guidance [PDF], which is still used to this day. This guidance actually demands that the numbers increase. “Targets that see success as reducing hate crime are not appropriate”, it says. As part of the drive to record more crime, there has been a slew of public-information campaigns and regular exhortations from police for the public to report hateful incidents, particularly in the wake of major political events like the EU referendum and the 2017 terror attacks.

Police-recorded data has other problems, too. Police are obliged to record not only criminal actions but also all non-crime hate incidents. A non-crime hate incident is literally any event that is perceived by the victim or any other person to be motivated by hostility towards a so-called protected characteristic. The key word here is perceived. As the Operational Guidance makes clear: “The victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception. Evidence of the hostility is not required for an incident or crime to be recorded as a hate crime or hate incidents.”

June 19, 2019

BOHICA! Section 13 threatens to come back to life

Filed under: Cancon, Law, Liberty — Tags: , , , , — Nicholas @ 03:00

Mark Steyn recently testified before the parliamentary Justice and Human Rights Committee recently. They carefully avoided having the video cameras turned on during his testimony and that of two other civil libertarian speakers. The committee clearly ignored everything that was said:

Lindsay Shepherd, Mark Steyn, and John Robson prepare to give testimony to the Parliamentary Justice and Human Rights Committee, June 2019.
Photo via Andrew Lawton.

“No monarch, no parliament, no government, and certainly no bureaucratic agency operating the pseudo-law of section 13 can claim jurisdiction over my right to think freely, to read freely, to speak freely and to argue freely.”

Those were the closing words of Mark Steyn’s testimony before parliamentarians on the Canadian House of Commons’ so-called justice and human rights committee just two weeks ago.

His call fell on deaf ears.

Yesterday, the justice committee tabled its report on “online hate” in Canada’s parliament.

The report laid out nine recommendations, one of which being that government should provide a “civil remedy for those who assert that their human rights have been violated under the Canadian Human Rights Act, irrespective of whether that violation happens online, in person, or in traditional print format. This remedy could take the form of reinstating the former section 13 of the Canadian Human Rights Act, or implementing a provision analogous to the previous section 13 within the Canadian Human Rights Act, which accounts for the prevalence of hatred on social media.”

Once you strip away the mumbo jumbo bureaucrat-speak in there, it means the Canadian Liberals wish not only to revive section 13 from the dead, but to give it untold powers to force social media companies to purge online speech from whomever the government deems the hatemongers du jour.

This is apparent in another recommendation, that lawmakers “establish requirements for online platforms and Internet service providers with regards to how they monitor and address incidents of hate speech, and the need to remove all posts that would constitute online hatred in a timely manner.”

Of course there’s no provided definition for what “hate speech” is in the context of this desired law. Just a promise to figure it out later.

Before section 13’s repeal under the previous Conservative government, there was a quasi-judicial body to decide if online posts were sufficiently “likely to expose a person or persons to hatred or contempt.” Those found guilty of violating this provision were slapped with a fine or gag order, while having none of the protections afforded to criminal defendants throughout the process.

This regime seems like child’s play compared to what’s proposed in this report – elimination of online speech by social media giants under the threat of government penalty. Not sure which I like better, actually: the opaque, unappealable hammer or the sham tribunal that at least pretends to give you a shot at beating the rap.

June 18, 2019

Hong Kong protests

Filed under: China, Law, Liberty, Politics — Tags: , , — Nicholas @ 03:00

Colby Cosh tests Betteridge’s Law by asking if the protests in Hong Kong are the birth pangs of a new nation (commonsense and a slight knowledge of Chinese history militate against answering “yes”):

2019 Hong Kong anti-extradition law protest on 16 June, captured by Studio Incendo from Flickr.
Photo via Wikimedia Commons

For the past week, Hong Kong has been taking another step toward figuring out exactly what it is. In an unprecedented display of resistance to Chinese power, literally innumerable hordes have been taking to the streets of HK, protesting the Communist Party-anointed chief executive and her effort to introduce a law allowing for the extradition of citizens to the mainland.

To anyone who follows Hong Kong affairs, these protests seem different qualitatively from those of the past. Earlier, related demonstrations like the Umbrella Movement of 2014 could be dismissed as economic unrest acted out by the young and irresponsible — by people who had not yet entered into, or who feared being excluded from, the strange social bargain between mainland power and HK’s wealth. 2019’s mass action is new: now everyone is marching. The revolt against the extradition bill is led by students, but persons of all ages — in some cases, multiple generations of the same family — are taking to the streets. Business owners are displaying sympathy with the marchers by means of small gestures. Commuters, who would normally be as annoyed with chaos and delay as any Torontonian trying to manoeuvre around a human rights demo, are signalling solidarity. The Hong Kong legal profession, aware that unrestricted extradition would annihilate their distinct system and the freedoms China promised to preserve, staged its own silent protest march. Hongkongers abroad are joining in symbolically.

Is this the birth of a nation? Those who wanted to push Hong Kong in the direction of formal independence have always been politely outnumbered. But the challenging, explosive assertion that “Hong Kong is not China” has become a routine feature of Hong Kong life.

Hong Kong was relinquished to China in 1997 after Britain secured paper guarantees that its independent judiciary and Commonwealth-style legal procedures would survive at least until 2047. When the handover was executed, the number 2047 meant — to the British trying to extract themselves from their last imperial briar patch — “far enough in the future for mainland China to have liberalized a bit.” The advent of Xi Jinping has since shown that progress, alas, does not proceed in a predictable linear way.

June 8, 2019

The sad economics of recycling

Filed under: Economics, Environment, Law, USA — Tags: , , , — Nicholas @ 05:00

Kim du Toit on the actual economic value of most recycling efforts:

Turns out that aluminum cans are actually worth recycling — in that they are 100% recyclable (requiring nothing other than melting and reformulating) and it costs less — much less — to recycle than to produce new aluminum.

That’s almost true of newsprint too, except that while pulping it is fine — hardly any energy is used for that — the pulp also has to be bleached, and in the pulping / bleaching process, about 15% of the original paper is lost. And as raw paper production (i.e. from logged wood) has become more efficient over the years, and as trees can be grown to replace those felled, the only real benefit from recycling paper is that overall paper production is less vulnerable to hiccups in supply of fresh wood — such as caused by forest fires, disease and drought.

And, he added, when it comes to recycling other stuff, glass is little better than plastic — which surprised me, but it actually costs much more to recycle glass than simply to produce it new. And the old “plastic into park benches” spiel is likewise stupid, because it costs so much to produce such stuff, and creates so much atmospheric pollution thereby, that it’s easier just to toss plastic into a properly-lined landfill and let nature take its course.

Knowing all that, I’ve always been skeptical of the benefits of recycling — it’s always been about feeewings rather than utility

June 5, 2019

Sensible proposals from the copyright review report

Filed under: Business, Cancon, Law, Liberty, Media, Technology — Tags: , , — Nicholas @ 06:00

Michael Geist summarizes the — seemingly quite sensible — recommendations from the copyright review process:

Assignments of copyrights photostat copies by mollyali (CC BY-NC 2.0) https://flic.kr/p/5JbsPE

In December 2017, the government launched its copyright review with a Parliamentary motion to send the review to the Standing Committee on Industry, Science and Technology. After months of study and hundreds of witnesses and briefs, the committee released the authoritative review with 36 recommendations [PDF] that include expanding fair dealing, a rejection of a site blocking system, and a rejection of proposals to exclude education from fair dealing where a licence is otherwise available. The report represents a near-total repudiation of the one-sided Canadian Heritage report that was tasked with studying remuneration models to assist the actual copyright review. While virtually all stakeholders will find aspects they agree or disagree with, that is the hallmark of a more balanced approach to copyright reform.

This post highlights some of the most notable recommendations in the report that are likely to serve as the starting point for any future copyright reform efforts. There is a lot here but the key takeaways on the committee recommendations:

  • expansion of fair dealing by making the current list of fair dealing purposes illustrative rather than exhaustive (the “such as” approach)
  • rejection of new limits on educational fair dealing with further study in three years
  • retention of existing Internet safe harbour rules
  • rejection of the FairPlay site blocking proposal with insistence that any blocking include court oversight
  • expansion of the anti-circumvention rules by permitting circumvention of digital locks for purposes that are lawful (ie. permit circumvention to exercise fair dealing rights)
  • extend the term of copyright only if ratifying the USCMA and include a registration requirement for the additional 20 years
  • implement a new informational analysis exception
  • further study of statutory damages for all copyright collectives along with greater transparency
  • adoption of an open licence rather than the abolition of crown copyright

My submission to the Industry committee can be found here. The submission and my appearance is cited multiple times in the report and I’m grateful that the committee took the submissions from all witnesses seriously.

The National Inquiry into Missing and Murdered Indigenous Women and Girls

Filed under: Cancon, History, Law — Tags: , , , — Nicholas @ 03:00

In the National Post, Chris Selley points out some odd blindspots in the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls:

“The violence the National Inquiry heard amounts to a race-based genocide of Indigenous Peoples, including First Nations, Inuit and Métis, which especially targets women, girls, and 2SLGBTQQIA people,” the report declares. Among the first headlines was one noting that Prime Minister Justin Trudeau “avoided” using the G-word in his remarks on its findings, settling for “shameful” and “unacceptable.”

The inquiry’s legal analysis concedes it is a novel deployment of the term. It seems far more comfortable alleging a historical genocide against “Indigenous Peoples” that involved specific targeting of women — for example through forced sterilization, which is acknowledged as a genocidal technique in the 1948 UN convention — than it does a genocide against Indigenous women and girls specifically. But the insistence upon the term speaks volumes about this peculiar inquiry’s tortured birth, and about some of its more perplexing recommendations.

Indigenous women have certainly been targets for violence and discrimination in particular ways throughout Canada’s history. Today they suffer disproportionately from violent crime, relative to Indigenous men, in a way that non-Indigenous women do not. The rate of self-reported sexual assault among Indigenous women in the 2014 General Social Survey (GSS) was more than triple that of non-Indigenous women. An astonishing 61 per cent of Indigenous women aged 15-25 reported violent victimization in the previous 12 months — nearly six times the rate for Indigenous men the same age.

But if Indigenous victims of violence even today can be said to be casualties of colonialist genocide, then the subset who are by far the most “especially targeted” — which is to say dead — are men. Between 2014 and 2017, Statistics Canada reports there were 139 Indigenous female homicide victims, and 428 Indigenous male victims — three times as many. (Similarly, non-Indigenous men were murdered two-and-a-half times more often than non-Indigenous women.)

[…]

But the obsession with half the Indigenous population leads to some bewildering recommendations, especially on the justice file. On the one hand the report inveighs against mandatory minimum sentences as a cause of Indigenous overrepresentation in the prison system, and calls for more robust applications of Gladue principles for all Indigenous offenders, which is to say more alternatives to incarceration; on the other hand it supports legislation that would require judges to punish violent offences more harshly if the victim is an Indigenous woman, and to automatically classify homicides occurring after “a pattern of intimate partner violence and abuse” as first-degree murder. This would almost certainly have the effect of increasing the incarceration rates of Indigenous men and women alike.

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