WikiLeaks logo (via Wikipedia)

WikiLeaks, the whistle-blowing website that provides confidential and sensitive documents for free to the media, human rights groups and the public, has been deemed a threat by the US Army.

WikiLeaks has been responsible in the past for providing a copy of the Standard Operating Procedures for Camp Delta, the contents of Sarah Palin’s Yahoo account, and a membership list of the far-right British National Party which got at least one police officer dismissed, among many other significant stories.

A 2008 document recently posted there, entitled U.S. Intelligence planned to destroy WikiLeaks, states,

The possibility that current employees or moles within DoD or elsewhere in the U.S. government are providing
sensitive or classified information to Wikileaks.org cannot be ruled out.

Plans included trying to shut down the website using a variety of techniques, including exposing their sources to embarrass and intimidate them, and even litigation.

Considering that this document was considered “secret,” and presumably came from someone who had access to confidential files, the concerns may be valid.  But the appropriateness of the response by the military towards a media channel providing a significant and overwhelmingly positive contribution to issues of public interest is also suspect.

The editors of WikiLeaks note that 2 years have passed without any exposure of their sources, indicating that this response may also be particularly ineffectual.  They also point to inaccuracies regarding the editorial control of the site.

Even if the Army was able to shut down WikiLeaks, they concede that the problem is not limited to a single site,

Web sites similar to Wikileaks.org will continue to proliferate and will continue to represent a potential force protection, counterintelligence, OPSEC, and INFOSEC threat to the US Army for the foreseeable future.

Although security interests are pressing and substantial, when a democratic government administration is known to participate in systematic abuses of human rights and widespread violations of international norms, the balance of favour should continue to support sites like WikiLeaks.

These two cases raise some serious issues for lawyers and law professors who provide legal opinion, advice, representation or education to suspected groups even when it is completely unrelated to terrorist violence.

Also see related post by Prof. Fadel of UofT at Foreign Policy,

At issue is the constitutionality of the United States government’s interpretation of a 1996 law criminalizing, with a maximum penalty of 15 years in prison, the provision of “material support” to foreign terrorist organizations. This provision is the government’s most used law in prosecuting those suspected of terrorism, largely because of the law’s breadth, and because it does not require the government to prove that the defendant intended to further the violent aims of the terrorist group. Especially troubling from the perspective of the foreign policy community is that it also prohibits providing “training,” “personnel,” “expert advice or assistance,” or “service” to such a group, even when such services are completely unrelated to terrorist violence.

Federal spending estimates indicate capital expenditures on prisons in Canada will increase by more than 40 per cent in 2010-11 to $329.4 million from $230.8 million this year, although the Conservative government has refused to publicly detail the costs of its criminal justice agenda.
…
“The great appeal of mandatory minimum sentences is that they give politicians the appearance of doing something, of being seen to be doing something,” Craig Jones, the executive director of the John Howard Society of Canada, said in a recent interview. “You must never underestimate the need for politicians to be seen to be doing something — even if, in some cases, it’s the wrong thing.”
…
In a 2008 speech, Harper flatly denounced research-based justice policies, accusing the pedlars of such policies of trying to “pacify Canadians with statistics.”  “Your personal experiences and impressions are wrong, they say; crime is really not a problem. These apologists remind me of the scene from the Wizard of Oz when the wizard says, ‘Pay no attention to that man behind the curtain.”
…
More recently, Harper’s former chief of staff Ian Brodie told a McGill University forum last spring that informed criticism of the government’s justice agenda is a political gift: “It helped us tremendously to be attacked by this coalition of university types.”

Let’s take a look at what the “coalition of university types” is saying. Here are some conclusions from the Feb. 2010 issue of Criminological Highlights, published by the University of Toronto and financed in part by the Department of Justice (.pdf online):

The great majority of [competently carried out] studies point to a null or criminogenic [i.e. crime-producing] effect of the prison experience on subsequent offending. This… should, at least, caution against wild claims – at times found in ‘get tough’ rhetoric voiced in recent decades – that prisons have special powers to scare offenders straight.
…
Though not all of the criminogenic effects of first time imprisonment were significant, there were no crime reducing effects of imprisonment that were significant, and only 9 of 64 comparisons between those imprisoned and not were in the direction of suggesting a crime reduction effect. It could be argued, therefore, that judges who send offenders to prison for the first time in circumstances in which alternatives to imprisonment are plausible are likely to be contributing to an increased crime rate.
…
“Experienced practitioners, policy analysts, and researchers have long agreed that mandatory penalties in all their forms… are a bad idea” (p. 65). That “is why nearly every authoritative nonpartisan law reform organization that has considered the subject… [has] opposed enactment, and favoured repeal of mandatory penalties” (p. 66). Three justifications are offered for mandatory penalties: evenhandedness, transparency, and the prevention of crime. None withstands careful scrutiny.
…
Canada’s remand population has been increasing in recent years at the same time that overall reported crime and violent crime have both been decreasing.… criminal justice decision makers are seldom criticized for being ‘tough’ but are subject to criticism if they are seen as responsible for the release of an accused who might, or does, commit an offence.

It is obvious why the government is ignoring these studies: in this struggle between reason and passion, to respect academic thought would preclude playing on the heartstrings of Canadians. It is also unfortunate that in this quest to conquer the polls with “tough on crime,” all of society loses.

Who ever heard of creativity in law school?

Unfortunately, as the reports circle around the internet, PC Vu Pham, 37, has succumb from his injuries he received in a shooting this morning.  Pham leaves behind a wife and three children and a community, in which he was deeply involved, in mourning for his sudden, tragic, and senseless murder.

The 70 year old suspect’s name has not been released, but he will undoubtedly be charged above all else with first degree murder.

It is reported that PC Pham, a Vietnamese immigrant and veteran officer of 15 years, was attempting to stop a suspect vehicle from a report of  domestic violence.  If this is the case, it is the worst kind of irony, because today, March 08, is International Women’s Day.  A day that in part is aimed at preventing violence against women.

This is the second police officer who has been killed in the line of duty in a week in Ontario.  On Monday, March 01,  Artem “James” Ochakovsky, a Peel Regional Police officer died in a traffic accident when his police cruiser hit another car and then wrapped around a telephone poll.

Although the deaths of Ochakovsky and Pham are different in nature, they are tragic to the community and especially the policing community.

I will save my personal opinion for my personal website, and if you are at all interested in reading it, follow this link.

Sexual assault is any physical contact without consent “in circumstances of a sexual nature such that the sexual integrity of the victim is violated” (Martin’s Criminal Code). If you are accused of sexual assault, what the physical contact looked like to you is irrelevant. What matters is if the judge thinks it was sexual. He or she will look at many factors such as “[t]he part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force … and the motive of the accused” (Martin’s Criminal Code). Sometimes your motive will be important and sometimes not.

In the twin brother case, the man had sex with the woman so the nature of physical contact was not an issue. The question on appeal is about the woman’s consent: was the man reckless or wilfully blind when he believed the woman agreed to the sexual contact? I don’t have the trial judge’s decision or the parties’ submissions on appeal, and I don’t want to draw conclusions about this case from the media’s reporting. So let’s say the case is just an inspiration for this essay.

Suppose the prosecution argued that the man had a higher duty to make sure the woman consented because he looked almost exactly like his brother. It’s a reasonable argument for the Crown to make because belief in consent is not a defence if you were “reckless” or “wilfully blind” in having this belief. It means if you knew there was a chance the woman didn’t consent or if you knew you had to do more to find out if she consented but didn’t because you didn’t want to, and the court finds she didn’t consent, you’re a criminal.

If you are the twin brother of a woman’s boyfriend, do you have to take extra steps to ensure her consent before sex even if you think the woman gave it? One theory could be that the exceptional similarity of twins creates a special risk that the woman will confuse one brother for another. If you know of this risk but go ahead, you are reckless even if you believe the woman consented. If you don’t know of this risk but know about the possibility of risk and prefer to ignore it, you are wilfully blind. In both cases, you are guilty of sexual assault if it turns out the woman didn’t consent.

As you can see, the law of sexual assault is complex and fact-specific. One reason why the Parliament and the courts chose to make it that way is to protect women because of many ways in which they could be against having sex and because they would not always be able to make it clear to the man, for example out of fear. The burden is clearly on men (assuming sexual assault is a man crime as I argued in the beginning) to make sure the woman consents before and during any sex. But if lawyers and judges disagree on the complex questions of consent, what should ordinary men in Canada do? (I am not talking about rapists, violent men, and other obviously criminal types.)

Criminal law must give clear guidelines, or it risks becoming unjust. Vague criminal law is unconstitutional in Canada. I am not arguing that the sexual assault law is vague but it’s complicated enough for men to have to follow the highest standard of conduct to really be on the safe side. In your normal sexual relations, the line between lawful and criminal conduct can be very thin. You can cross it easily. Here are some suggestion for all men in Canada:

• before any touching, ask the woman if she consents and do not touch until she says yes
  • sexual touching includes hair, neck, hands, face, etc.—not just the obviously sexual areas
  • of course, it also includes the sexual act itself
• if the woman says no, do not touch her; do not assume that she is playing; in criminal law, no means no
• if you know you look like someone else she knows, tell the woman exactly who you are before any touching
• during any touching, constantly monitor the woman for signs she stopped consenting
• if you see any signs that she withdrew her consent, stop all touching immediately
• videotape everything (preferably in high definition) in case the facts are disputed in the future
  • don’t forget to warn her you’re videotaping because uninformed consent doesn’t count
  • having two impartial witnesses during the whole process is even better
• DO NOT DRINK before or during the physical contact with a woman: you risk impairing your judgement and missing the moment when she stops consenting. Self-induced intoxication is not a defence.
• above all, guys, treat women with respect and avoid random sexual relations

(Post sponsored by AdviceScene)

American International Group, better know by its acronym AIG, it seems these days can rarely catch a break. It just seems negative news follows negative news for this company. This time the negative news for this too big to fail company – deeply wounded by the global credit crunch and later recession – has two of its units being accused of racial discrimination in their lending practices.

It is important to note that AIG has not been found guilty of anything; in fact it wasn’t even accused of any wrong doing.

WHAT?

I know, I know, it seem like I am saying that AIG is involved yet not involved in this case. And yes that is exactly what I am saying.

All of this may seem totally contradictory but let me assure you it is not. What we have here is a classic illustration of legal reality vs. public perception of a company’s brand. In order to be successful companies have to be mindful of the differences between these two concepts and effectively manage their interrelation.

The Department of Justice (DOJ) allegations were never directed at AIG, the parent company, but were instead directed at two of its subsidiaries –AIG Federal Savings Bank (FSB) and Willmington Finance Incorporated (WFI). Both banks were accused of not sufficiently monitoring the activities of mortgage brokers who sold mortgages that they funded. The brokers were, according to the DOJ, offered African-American borrowers less favorably borrowing terms than similarly financially situated whites. The two have agreed to settle the case with the DOJ and have agreed to pay at least $US6.1 million without admitting liability as part of the terms of settlement.

The case broke no new ground as far as banks in the US being accused of racial against minorities, namely African-American and Latino-Americans, in fact similar settlements or even full blown litigation involving other US banks will surely be making the headlines in the near future. The case however did break new legal ground in that for the first time US authorities held a lender directly responsible for the racial discriminatory acts of brokers. As a consequence, from now on banks will have a positive duty to monitor the activities/policies of brokers that they fund, to the best of their ability, in order to ensure that they are not using race to determine borrowing terms. This duty also of course carries with the co-duty to take positive action whenever a bank believes that a broker is using race.

From a strict legal perspective AIG, the parent, hands remain totally clean is this matter. It is important to reiterate that AIG was never accused of anything; the allegations were solely directed at the two subsidiaries. And no this is not a simple matter of splitting hairs, while related all three companies are separate. The legal concept of the corporate veil - the independent legal identity of companies, even if related – is a fundamental one in corporate law. The corporate veil is best understood as a shield that is used to protect all the right that come with incorporation. This is not to say that it can never be lifted/pierced, for it can, but this is only done in rear and specific instances where for example fraud is alleged or where for some reason the directing/controlling mind of a corporation needs to be identified.

However, these allegations go beyond strictures of the corporate veil and this is where public perception of the brand and effective management of that brand become important. AIG and its army of brand management specialists both know that the general public are often not so discerning as to make the distinction between parent and subsidiary; as far as the public is concerned AIG is AIG. This is the reason I believe that there was such a quick settlement – the last thing AIG, the parent, needs is a protracted legal battle involving accusations of racial discrimination, albeit involving subsidiaries. This would be a public relations nightmare.