Heather Gardiner

Osgoode tweets to victory
Posted Date: February 22, 2012

Osgoode Hall Law School has won the world’s first ever Twitter moot.

Students mooted the British Columbia Court of Appeal’s decision in West Moberly First Nations v. British Columbia (Chief Inspector of Mines). The case involves West Moberly’s struggle to protect its property and Burnt Pine caribou herd from First Coal Corp., which is seeking to set up a coal mine on its land. Osgoode’s team represented West Moberly. Teams from law faculties at the University of Victoria, Dalhousie University, the University of British Columbia, and the University of Ottawa also participated in the moot.

So many viewers tuned in to the virtual moot hosted by West Coast Environmental Law on Feb. 21 that the Twitter feed became overwhelmed at one point, causing a brief technical delay.

Second-year University of Victoria law students Matthew Nefstead and Jenn Cameron won the People’s Choice award for their representation of the province of British Columbia.

They concede that the moot was stressful at times. “It was really challenging to get everything in in the time allotted, especially when the judges started asking questions,” says Nefstead.

They essentially had their tweets prepared, he says, but it was difficult to respond to questions that referred to specific paragraphs of cases within the 10-minute time limit they were given to present their arguments.

University of Calgary law professor and moot judge Kathleen Mahoney says she also felt constricted by the time limits.

“For the judges, too, it’s obvious you have to prepare your questions in advance and be able to modify them throughout the course of the argument because if you don’t, you don’t have enough time to think through what the student is saying and compose your question from scratch,” she says.

Nefstead and Cameron suggest that instead of having time restrictions, there should be a maximum number of tweets set. Such a limit would still compel mooters to be concise since a tweet can’t be more than 140 characters.

“Part of the idea behind the event was to force us to be extra concise, but I think there would be some room to add a little bit of extra time to allow the arguments to be flushed out a little better, especially to be able to respond to questions,” says Nefstead.

Mahoney proposes that mooters address the references in their factum, which is also limited to a maximum of two pages, rather than discuss them during the moot. “I think this kind of exercise will work best if the matter is just boiled down to the essential arguments where the issues clash and hear what the students have to say about that,” she says.

Along with the factum, some teams, including the University of Victoria’s, prepared a short video.

As to be expected, there was also some bantering during the moot. Mahoney says humor is acceptable but notes participants shouldn’t interrupt the other parties during their allotted time period. “I don’t think it should be permissible for students to jump in when others are doing their submissions because obviously when you’re so limited in time, that could be unfair,” she says. “So I think that should probably be something that would attract a penalty because it’s not like a free-for-all.”

But Cameron says Twitter makes it hard to put a stop to interruptions. “In a courtroom, the judges have control over the individuals. So they’re able to stop them before it becomes an interruption, but the nature of Twitter doesn’t really allow that kind of control.”

Mahoney, who had never used Twitter before, admits it was quite a challenge. Her daughter helped her set up an account and practise a bit before the moot. And now that she’s more familiar with it, she plans to tweet on a regular basis and maybe even use it as a teaching tool.

Mandatory religion course doesn’t infringe on freedoms, top court rules
Posted Date: February 17, 2012

The Supreme Court of Canada has dismissed a couple’s bid to have their children exempted from the Ethics and Religious Culture program that became mandatory in Quebec schools in 2008.

The CCLA’s Nathalie Des Rosiers says the ruling recognizes the difference between religious indoctrination and instruction.

The parents, identified only as S.L. and D.J., argued that the ERC program interfered with their ability to pass on the Catholic faith to their children. They requested to have their children exempt from the program, but the school board refused.

In upholding the Quebec Court of Appeal’s dismissal, the top court said the parents had not proved their right to freedom of religion had been violated.

“Although the sincerity of a person’s belief that a religious practice must be observed is relevant to whether the person’s right to freedom of religion is at issue, an infringement of this right cannot be established without objective proof of an interference with the observance of that practice. It is not enough for a person to say that his or her rights have been infringed. The person must prove the infringement on a balance of probabilities,” the court stated in S.L. v. Commission scolaire des Chênes.

Nathalie Des Rosiers, general counsel of the Canadian Civil Liberties Association, which was an intervener in the case, says the ruling applied the test for freedom of religion in Canada in a slightly different way. “It does recognize the difference between indoctrination and instruction, and supports the view that you can educate children about different religions without violating the freedom of expression of them,” she says.

According to the ruling: “[S.L. and D.J.] claim that the ERC Program is not in fact neutral and that students following the ERC course would be exposed to a form of relativism which would interfere with their ability to pass their faith on to their children. They also maintain that exposing children to various religious facts is confusing for them. The evidence demonstrates, firstly, that the Ministère’s formal purpose does not appear to have been to transmit a philosophy based on relativism or to influence young people’s specific beliefs. Exposing children to a comprehensive presentation of various religions without forcing the children to join them does not constitute an indoctrination of students that would infringe the freedom of religion of L and J.

“Furthermore, the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society. The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligations with regard to public education.”

On behalf of the majority decision, Justice Marie Deschamps wrote: “The societal changes that Canada has undergone since the middle of the last century have brought with them a new social philosophy that favours the recognition of minority rights. The developments in the area of education that have taken place in Quebec and that are at issue in this appeal must be situated within this larger context. Given the religious diversity of present-day Quebec, the state can no longer promote a vision of society in public schools that is based on historically dominant religions.”

Des Rosiers says there was very little evidence about the way the ERC program is taught, but the ruling validates it anyway. “[Justice Louis] LeBel does indicate that on a better factual basis if the course was not taught in a neutral fashion or if it was taught in a way that discredited some religious beliefs, then certainly there would be a violation of freedom of religion.”

It will be interesting to see how the ERC program plays out, she adds. “[The ruling] does recognize that state neutrality must reflect itself in the public education system,” Des Rosiers tells Legal Feeds. “It does state that very clearly — the state cannot give precedence to one religion over another and cannot indoctrinate. So it will be a fine line in terms of how the course will be taught in terms of whether it truly presents a pluralistic view of all religion or whether indeed it fosters indoctrination.”

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This week at the SCC
Posted Date: February 13, 2012

The Supreme Court of Canada will hear the following five appeals this week:

Feb. 13 — Quebec — City of Westmount v. Richard Rossy

Commercial law: The family of a man who was killed when a tree fell on his car sued the City of Westmount for $1.3 million, claiming it was liable for not maintaining the tree. The city sought to dismiss the action on the grounds that the damage was caused by an automobile and compensation was governed by the Automobile Insurance Act. The family is also seeking changes to the province’s no-fault automobile insurance law. The Quebec Superior Court allowed the city’s motion and dismissed the family’s claim. That decision was later set aside by the Quebec Court of Appeal.

Feb. 14 — Newfoundland & Labrador — R. v. T.L.M.

Criminal law: The complainant’s uncle was convicted of sexually assaulting her when she was eight to 10 years old. The trial judge admitted an agreed statement of facts relating to his prior conviction for sexually assaulting another eight-year-old girl. The Court of Appeal allowed the uncle’s appeal and ordered a new trial. The issue is whether the trial judge erred in admitting the similar fact evidence. There is a publication ban in the case.

Feb. 15 — British Columbia — Sam Tuan Vu v. R.

Criminal law: After forcibly confining a man for eight days after he was abducted by others, Sam Tuan Vu was convicted of forcible confinement but acquitted of kidnapping. The Crown appealed the acquittal and the B.C. Court of Appeal convicted him of kidnapping on the basis that he was a party to the offence. There is a publication ban in the case.

Feb. 16 — Quebec — Riccardo Bellusci v. R.

Criminal law: Inmate Riccardo Bellusci was charged with assaulting a correctional officer. He claimed he had been assaulted by the officer and was acquitted at trial. Bellusci had also been charged with using violence against a justice system participant but the trial judge granted a stay of proceedings. The Quebec Court of Appeal set aside the stay of proceedings and remitted the case back to the trial judge.

Feb. 17 — British Columbia — Joan Clements, by her Litigation Guardian, Donna Jardine v. Joseph Clements

Torts: Joan Clements sued her husband after she was severely injured while riding on a motorcycle he was driving. The trial judge found the husband was negligent and therefore liable for his wife’s injuries. The B.C. Court of Appeal ruled in favour of Joseph Clements by setting aside the trial judge’s order and dismissed Joan’s action.

Update: The Supreme Court will also release its decision in S.L. v. Commission scolaire des Chênes on Feb. 17 at 9:45 a.m. The case, originating in Quebec, questions whether parents have the right to choose their children's education as it relates to religious instruction. The appeal was heard on May 18, 2011.

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News roundup — February 10, 2012
Posted Date: February 10, 2012

Canada

Former B.C. premier found guilty of defamation, The Vancouver Sun

B.C. court rules government must protect killer whales, Victoria Times-Colonist

Lawyers urge judge to grill juror following murder verdict, Toronto Star

United States

Lawyers accuse Pa. judge of bias in sex abuse trial, Reuters

Senate committee approves bill to televise top court, Reuters

International

Pakistan court rejects PM's contempt appeal, Reuters

Syrian officials should be sent to ICC, UN says, Reuters

Business as usual for ISPs following SCC decision
Posted Date: February 09, 2012

The Supreme Court of Canada has essentially ruled that broadcasting via the Internet does not need to be regulated.

The top court was asked to rule on the appeal in Alliance of Canadian Cinema, Television & Radio Artists v. Bell Aliant Regional Communications LP following the Federal Court of Appeal’s decision that Internet service providers are not broadcasting within the meaning of the Broadcasting Act when they transmit programs via the Internet.

In upholding the Federal Court of Appeal’s decision, the top court wrote: “We therefore agree with Noël J.A.’s answer to the reference question, namely, that ISPs do not carry on ‘broadcasting undertakings’ under the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to ‘broadcasting’ requested by end-users.”

The case arose after the Canadian Radio-television and Telecommunications Commission reviewed its new media exemption order under the Broadcasting Act. During the review process, the question of whether ISPs could be regulated was raised and the CRTC referred the case to the Federal Court of Appeal.

Prior to the reference, the CRTC heard proposals from cultural groups seeking to impose a levy on ISPs to fund the development of Canadian new media broadcasting content. ISPs, including Bell Canada and Rogers Communications Inc., opposed the levy, arguing that the CRTC doesn’t have jurisdiction to impose a levy since ISPs are not considered to be broadcasters under the Broadcasting Act.

“What this decision says is that an approach which seeks to raise funds or regulate an ISP under the Broadcasting Act isn’t an option,” says Leslie Milton, a communications law partner at Fasken Martineau DuMoulin LLP.

“The main implication is that an ISP that merely provides the mode of transmission or access to the Internet won’t be subject to regulation under the Broadcasting Act,” she adds. “At this point, because there is an exemption order under the Broadcasting Act for new media undertakings, the regulatory obligations are not very large.”

Milton says the ruling basically means “it’s business as usual for ISPs.” The ruling is consistent with current regulation of the Internet, which is limited, she says. And she doesn’t expect to see any changes to the Broadcasting Act any time soon to expand the regulation of ISPs.