Lex Ferenda

Oh, Canada. Helped to write a UN declaration on aboriginal rights (it took about a decade) and then (after a change in government) was one of only four countries (in the General Assembly, as the 61st session comes to a close) to vote against it. More here. Joining with the US, Australia and New Zealand. Colonies United.

Bulletin from the General Assembly with a report of the vote. Here’s the declaration. And here’s the ambassador’s speech, if you’re able for it.

Updates: News from the CBC, sorrow from Lori at metislaw and a thoughtful Australian perspective from Nic.

Search Engine (witty title, eh?) is a new CBC Radio show about ‘the Internet’, with a focus on collaboration and new platforms. It was featured as this week’s Editors Choice and it’s a very good show. Of course, there’s a podcast.

Allan Hutchinson of Osgoode Hall reviews two books, one of which already caught my eye when U of T Press put it in the new releases list: Ivory Tower Blues - A University System in Crisis. In Saturday’s Globe and Mail review section.

I have a few things I’ve been waiting to post, so why not roll them all in together. There’s a theme in that none of them are about law…and there’s some sort of cultural thread.

The Festival of World Cultures takes place in Dún Laoghaire (pron: dune leer-ah or dun leer-ee) this weekend. Photos if I get around to taking them. This was a great event last year.
 

Kew has started to beat the drum for a special Henry Moore exhibition (here’s a tantalising map (PDF); a version of Reclining Connected Forms (right) is about 30 seconds walk from where I’m typing from right now). Really hope to get to this at some stage.
 
 

Closer to home, the National Gallery has an exhibition of Jack Yeats works, Masquerade and Spectacle : The Circus and the Travelling Fair in the work of Jack B. Yeats, running until November. The Gallery houses the Yeats Archive and a whole heap of paintings. The first painting I can remember seeing in the National Gallery (pre-renovation edition) was Yeats’ The Liffey Swim (left).

The Quill and Quire blog (Q&Q is a Canadian periodical about books, books and more books), to my pleasant surprise, posted this photograph (right) of a sculpture outside Trinity’s library this afternoon. I’m a fan of the sculpture, by Arnaldo Pomodoro (and have managed to visit three others in the same series!); I posted a nice ramble as a comment to their post but I think they’ve all gone to the pub, as it’s in a moderation queue. Either that or I scared them (they came back).

Penguin has a series of retro cover books. Nice. Looking forward to spending too much money on them. (Soon, I’m buying this).

And finally. A collection of (mostly) fielding moments (the bulk of them are magic 6-3 plays) by John McDonald of the Blue Jays (that’s baseball, by the way). Some devoted fan put this together and it has just gone up on GooTube. A 6-3 play is where the shortstop (fielder who positions himself back and to the left of second base) gets the ball and throws it to first base, thus achieving an out. It’s a fairly standard play. McDonald has a particular way of doing this which you’ll see from the video…this, too, is art

Some notes on sessions that are out of sequence:

Lorraine Kisselburgh spoke about the ’social structure and discursive construction’ of privacy - with a surprisingly practical approach, given the very theoretical title! Her methods include interviews, network analysis and more, and she is looking in particular at privacy settings in Facebook etc. There were strong links between the discussion at this seminar and the work presented by Fred Stutzman (on social networks) and Karen McCullagh (on privacy). Facilitator Brian Fitzgerald (QUT, also in picture) sparked an interesting discussion on ethics and anonymity in the context of research. Spelling corrected.

Furthermore, I should note a very entertaining and informative discussion last week based around Kang and Buchner’s Privacy In Atlantis dialogue. This paper is an imagined conversation between a Counsellor and a Technologist, an Economist, a Philosopher and a Merchant. Our conversation picked up where the paper left off, and featured a star line-up (or a rogue’s gallery ;)) of contributors, including John Clippinger, Bill McGeveran (who reflected on the experience here) and David Weinberger….and the liberal use of our online/on-screen ‘question tool’. I threw up a cheeky ‘thought experiment’ on what should happen with a hypothetical perfect surveillance system, which was grabbed by McGeveran (as moderator/Counsellor) - to my surprise - and became a fulcrum for a brief period, which meant that I had to think it through in more detail than I expected! Oops.

This week, Adam Fiser of the Faculty of Information Studies (FIS) at the University of Toronto (a nice place: I camped out in their great library, the Inforum last summer) took us through his work on Internet access and First Nations communities in Northern Ontario, focusing on the K-Net project of the Keewaytinook Okimakanak tribal council. Adam himself has had an involvement with the Canadian Research Alliance for Community Innovation and Networking (CRACIN) and the Community Wireless Research Project (CWIRP) and has engaged with the various levels of the government and aboriginal bureaucracies in Canada - his views on academia & activism were very interesting. Given the current, changing political climate in Canada (a theme picked up by Adam in a question to me in my own presentation), what he’s studied in terms of broadband use and the governance of frequencies, connections, etc is far too important to be ignored.

This morning, we talked about ‘Wikipedia and Peer Production‘ in the company of John Palfrey and Jonathan Zittrain (who provided us with a chapter from his forthcoming book), joined by Doc Searls part of the way through. Zittrain’s key question was “should we care that academia did not come up with Wikipedia”, and that acted as a nice bridge into an extended discussion of research ideas and principles (including the difference between law and social science) - although this wasn’t a direct intention, I suspect, it was one of the most useful ‘macro/meta’ conversations I’ve ever had about my PhD research!

Ismael has detailed notes on these, as well as other things I may have missed (due to poor notetaking, over-eager participation, or simply not being in two places at once).

Irish readers will have seen recent news coverage relating to the unfortunate Globespan passengers stranded in New York (not to mention those waiting in Knock for the sad air carriage to come and get them for their trip). I did look into Globespan flights to Hamilton (southern Ontario - relating to Toronto as Beauvais is to Paris!) this year - I didn’t book with them - but at the time I was impressed at the sheer vitriol of former passengers (from the fun Airline Quality page). This morning, I took another look at the opinions - and yes, it appears to be getting worse! They launched their Irish routes (Knock-New York and Dublin/Shannon-Hamilton (”Toronto”) just a few months ago, and their reputation appears to be in tatters already…I think Air Transat’s status as the “cheap” Ireland-Canada option will stay safe for some time; can it get any worse for Globespan?

Joyeuse Fête du Canada (and this time last year, I was actually there!)

Via The Court, the great blog at my old stomping ground of Osgoode Hall comes this fun page on “Which Canadian Supreme Court Justice Are You?” Apparently I’m Justice Claire L’Heureux-Dubé.

Would love to do one of these for the Irish court, maybe for next year’s constitutional law students. This test (which is a bit of fun rather than a weighty legal analysis) just picked out some of the key, divisive opinions from the last few years’ worth of SCC decisions. Please use the comments button to nominate cases that would be good indicators of difference in approach, and if time permits over the summer, I’ll try and pull it together as a test…. (and that is a promise).

As noted back in the sunny days of July 2006, Canadian media behemoth CTV Globemedia (formerly Bell Globemedia (owners of CTV, the Globe and Mail and more; once part of the Bell Canada empire but Bell now only owns 15%), has been attempting to buy the CHUM/City group - operator of radio stations and a number of TV services, most notably Toronto’s CityTV. The transaction cleared competition approval recently, but the most significant hurdle was the necessity to receive the approval of the electronic media regulator, the CRTC. The need to receive the CRTC’s assent is a key principle of Canadian media law, and an elaborate system of policies, ‘benefits packages’ and more has emerged from the Broadcasting Act and the CRTC’s own proceedings. It’s certainly not a rubber stamp, and the public proceedings are epic affairs.

Here’s today’s press release and decision (2007-165). The summary is that the transaction can go ahead, but on condition that the CityTV stations (Toronto plus four other cities; each operating a similar format to the mothership) are sold. BG had offered to get rid of the (less successful) A-Channel stations but wanted to keep CityTV; as it turns out, the regulator has said that they will allow them to keep the A-Channels!

Two members of the CRTC dissented on the CityTV point, accepting the argument that in practice, allowing the CityTV stations to become part of the CTVgm universe would in fact enhance diversity and provide for a secure future for the stations. The rule that caused the majority to require divestment of CityTV is the ‘one station per market’ rule (i.e. in general, no corporation can have effective control of more than one station per market). While there are a number of prominent exceptions, they normally relate to broadly defined markets (e.g. CanWest own a station in Toronto and a station in nearby Hamilton, both in the ‘Toronto-Hamilton’ market), and the Commission wasn’t prepared to make the leap here.

The dissenting opinions are perhaps more interesting to study, as the majority opinion is more a restatement than an argument (by nature, of course!). Two particular points worth noting are as follows:

The asset evaluation study on the record of this proceeding puts an enterprise a value on the five Citytv stations of anywhere between $74 and $149 million. Based on the 10% rule, if a new buyer is found for the five Citytv stations ordered sold by today’s majority decision, that new buyer will be offering a benefits package of somewhere between $7.4 and $14.9 million. That is a long way from $80 million and is unlikely to produce much in the way of quality Canadian programming.

(the ‘benefits package’ relating to CityTV, i.e. investment in programming, talent schemes, etc would have been $80. However, there is a long tradition in Canadian media law of guarding against ‘buying a licence’….)

This is the age of new media, of Google, Yahoo, You Tube, Facebook, Joost and of dozens more unregulated enterprises emerging or in the development stage. Regulated enterprises like Citytv find themselves sufficiently challenged by the need to succeed financially while meeting legislated cultural imperatives without having to shoulder the additional burden of inflexible regulatory dictates.

This is a very interesting point and one that, I think, is starting to make its way into CRTC discourse - the idea that because conventional radio/TV has to compete with the totally unregulated Internet services (from the perspective of the Broadcasting Act, of course!), it is necessary to be flexible in applying law and regulatory policies to regulated broadcasters. Indeed, it was a major factor in the redrafting of Television Without Frontiers through the AVMS directive - an example is the decision to loosen advertising restrictions on the ‘linear’ (i.e high regulation) services.

Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia
[2007] SCC 27

Human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy are among the values that underly the Charter: R. v. Zundel; Corbiere v. Canada; R. v. Oakes. All of these values are complemented and indeed, promoted, by the protection of collective bargaining in s. 2(d) of the Charter.

The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work (see Alberta Reference, at p. 368, and Wallace v. United Grain Growers, at para. 93). As explained by P. C. Weiler in Reconcilable Differences (1980): Collective bargaining is not simply an instrument for pursuing external ends, whether these be mundane monetary gains or the erection of a private rule of law to protect dignity of the worker in the face of managerial authority. Rather, collective bargaining is intrinsically valuable as an experience in self-government. It is the mode in which employees participate in setting the terms and conditions of employment, rather than simply accepting what their employer chooses to give them …. [p. 33]
…
We conclude that the protection of collective bargaining under s. 2(d) of the Charter is consistent with and supportive of the values underlying the Charter and the purposes of the Charter as a whole. Recognizing that workers have the right to bargain collectively as part of their freedom to associate reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter.

The Canadian Supreme Court today recognises a right to (some elements of) collective bargaining as part of freedom of association, and strikes down some sections of ‘reforming’ labour law from British Columbia. It is a significant departure from past Supreme Court decisions on the interpretation of s 2(d) of the Charter of Rights and Freedoms (which deals with freedom of association) and is informed by a study of the history of work, unions and labour law, a perusal of the sources leading to the Charter, and significant reliance upon international law. Potentially a very significant decision.