bob tarantino

Great Moments in Canadian Sentencing 03.31.07

• "The mother of a young New Brunswick man killed when a driver who consumed 24 beers smashed into her son's bicycle says a sentence of two years house arrest is too light a punishment."  In the words of sentencing judge Graydon Nicholas, drinking and driving "must be denounced".  Mission accomplished!

• "A teen killer, who in a jealous rage fatally beat his girlfriend with a baseball bat, has never participated in an anger management program or had treatment for his drug and alcohol abuse while in jail ... will finish his three-year sentence on Dec. 21 this year"

"still money to be made"

The other day at lunch a colleague and I concluded (hardly an original conclusion, mind you) that while it was inaccurate to say that the music industry was dying, it was pretty close to the mark to say that the iteration of the music industry we've been familiar with for the past forty years or so is retreating.  The evidence seems fairly irrefutable - album sales have been collapsing for more than five years, and digital sales, whatever their growth rate, aren't replacing the lost revenue.  I use the term "retreating" advisedly, and in the sense of a tide - it seems the record industry isn't witnessing the emergence of a new model, exactly, but more something akin to the resurgence of a previous model.  The way we put it over Thai food that day was that the recording industry was beginning to look more and more like what existed in the 1950s and prior decades.

The massive boom years in the music industry of the 1970s through, say, roughly 2001, were characterized by a couple of trends: ever-increasing unit sales of albums and the corporatization of the industry.  The latter had a particularly distortive effect: record labels became profit-centre cogs for publicly-listed multinationals, always chasing the fiscal quarter-end and year-over-year increases which matched whatever arbitrary number some stock analyst in New York or London attached to the ticker symbol.  There's no particular reason why the industry should consist of four or five major labels with branch plants throughout the world churning out projects which sell tens of millions of copies, and it certainly seems that ten years from now that model will be gone or at least will comprise a much smaller portion of the industry.

Album sales are still a huge business, of course, but how the culture andhte market interacts with them is changing.  As I pointed out before, the ceiling for album sales seems to have dropped rather markedly - we don't see very many (if any) albums which move more than 10 million copies in the US anymore.  As an example, Nickelback, probably the most commercially successful rock band in the industry today, which has an absolutely huge album that has been out for almost two years and spun off, what, four hit singles, have sold about five million copies.  Fifteen years ago they would have likely sold twice that number.

So people are still selling records, just not as many of them.  The manner in which records are delivered is also changing: national chains with hundreds of outlets are collapsing, but individual, idiosyncratic record stores seem to be doing okay.  An older model is re-asserting itself: smaller labels, smaller bands, smaller markets.  An artist with big hits today isn't going to be buying private jets and apartments on Fifth Avenue - the time of Mariah Careys seems to have come to a close.  Another analogy is that the music industry is coming to resemble the Canadian music industry: where even the biggest bands are making a nice living, but nobody is buying an island in the Caribbean (viz. The Tragically Hip).  All of which is fine: there's no rule which says that the music industry has to look a particular way, as much as some people who profited from the old model would wish it were so.

"could not be reached for immediate comment"

I don't know quite why I find the following snippet from this Canadian Press story so funny, but I do:

Comuzzi is generally considered a soft-spoken, gentlemanly, perpetually tanned MP.

Two out of three ain't bad, I suppose.

"the analytical approaches"

There's an adage which gets thrown around in law school: the Supreme Court is not final because it is correct, it is correct because it is final.  They definitively pronounce on the laws, in other words, but they don't always get it right - reliance on their authority is a function of deference to the political order, not some sort of recognition that they are infallible (it isn't unheard of for a court to reverse its own prior decision, sometimes within the space of a couple of years).

Having now had a chance to review the Supreme Court's decision in the Bryan case (a searchable .pdf of the decision can be found here), the Court is certainly relying on the second portion of that adage: the majority decision in this case is, frankly, bizarre.  The "majority" actually consists of three separate decisions: those of Justice Bastarache (by far the longest at 53 paragraphs), Justice Fish (concurring with Bastarache in the result and providing his own 28 paragraphs) and Justices Deschamps, Rothstein and Charron, who split the difference and in one paragraph assert that they agree with both Fish and Deschamps.  Which is interesting, because it seems to me that Bastarache and Fish fix their decisions on very different rationales: for Fish, upholding section 329 of the Canada Elections Act turns on the fact that what is involved is a "brief delay ... of three hours' duration at most" - it is not the suppression of information, in short, it is only a deferral (para. 80).  For Fish, to the extent that there is an infringement on a guaranteed right, it is so minimal that it is permissible.  Bastarache, on the other hand, builds his decision on the hitherto unknown right of "information equality", the first glimmerings of which were created by the Supreme Court in the Harper decision, which upheld prohibitions on third party election advertising.

Referring to these as two contrasting visions of the case should not, however, be taken to mean that they are roughly equivalent in their intellectual robustness.  The Fish position at least presents a semblance of an argument, the contours of which are cognizable: in assessing the infringement on the right of free expression, Fish is determining that, because of such a short duration, it is not so grave that it requires remedial action by the courts.  That's a debateable conclusion, but it's at least debateable.  The Bastarache position is essentially that whatever the government says it is trying to accomplish is super-awesome and the court isn't going to get in its way.  That's not a "decision", that's a capitulation.

Andrew Coyne, in his column reflecting on the decision, aptly describes what has happened: the concept of "information equality" as given function via section 329 of the Canada Elections Act, a concept previously unknown and not expressly reflected in any previous decision or statute of which I am aware, other than some vague allusions in the Harper decision noted above where the concept is never actually articulated, has been held to override the Charter-protected right of freedom of expression.  But that ultimately is only half of the story, which can be best seen by the different coverage accorded the matter from the political/news perspective (see Gerry Nicholls' post) and the legal perspective (see TheCourt.ca) (to his credit, Coyne hits both aspects in his column).  Deplorable as the ruling may be from a freedom of expression standpoint, it is just as concerning from a government accountability standpoint: the Supreme Court has essentially ruled that, in some circumstances, the government needs to provide next to no justification of its aims or methods, forcing the onus onto those challenging government power.

The Bastarache decision really should be read - since that's the only way you'll believe it.  As Justice Abella, writing for the dissent, described it, the government's argument (which was accepted whole by the majority) consists of "a combination of speculation and theory, unsubstantiated by cogent evidence”.  To properly describe the situation, note that the entire government argument rested on (1) a single survey from 2006 conducted by Decima Research/Carelton University School of Journalism and Communication, and (2) a Royal Commission (the "Lortie Report") report which is more than fifteen years old and which, and this is important, itself did not recommend a "black-out" of the type used in section 329 (the Lortie Report recommended the use of staggered voting hours).  Other than that (and we all know how exact opinion polls are), there is literally no "there" there.

The majority decision is so poorly reasoned it almost beggars belief.  The majority accepts at face value the Attorney-General's argument that "the mere fact that one voter could have general access to information about election results that another voter does not have is in and of itself problematic" [emphasis in original] (para. 12).  [It should also be noted that even this is undermined by Bastarache's later contention that he's not bothered by "a small number (less than 25 percent) of voters seeking out information privately" (para. 40).]  Also lending an air of unreality to the decision is that the majority repeatedly acknowledges that the law is unenforceable and ineffective (see, e.g., para. 79: "modern communications technology diminishes the delay's effectiveness ... [it] cannot and does not entirely prevent voters in central or western Canada who are determined to learn before casting their ballots what has transpired in the Atlantic Provinces from obtaining that information by telephone or e-mail, for example") - yet trundles forward despite that.

The Bastarache decision goes something like this:

• the government says "informational equality" is a "central assumption of electoral democracy" - and we won't question that assertion [para.12];
• section 329 of the Canada Elections Act protects "informational equality" - and we won't question that assertion [para. 12];
• section 329, and the protection of "informational equality", is a "direct result of the requirement that elections be fair" [para.22];
• courts should defer to the decisions of the legislature when it comes to how the legislature has erected the legislature framework for elections [para. 27];
• the objective of "informational equality", once asserted by the government, is "simply accepted by the Court as always pressing and substantial" [emphasis in original] [para.34];
• the government has this survey - therefore section 329 bears a rational connection to the "pressing and substantial" goal of ensuring "informational equality" [para. 40];
• in the aforementioned survey, a bunch of people said they would not seek out information about poll results if doing so was illegal - therefore, no one should be allowed to know this information [para. 40];
• section 329, based on the foregoing, has beneficial effects and no deleterious effects - and should therefore be allowed to stand [paras. 49-51]

Every time there is a gap in the reasoning (which is quite often), Bastarache invokes a totem: "logic and reason".  Can't quite see how we went from assertion A to conclusion B?  Logic and reason.  The phrase "logic and reason" is used eleven (11) times in Bastarache's decision, yet not once does he actually apply either logic or reason to the propositions set before him.  Instead, he takes the arguments of the government, says "I am applying logic and reason" and then jumps to the government's preferred conclusion.

What is truly bizarre is that section 329, over the course of the majority reasons, acquires the strength of, if not a Biblical commandment, then perhaps a law of physics: by paragraph 51 overturning section 329 apparently constitutes an assault on "the protection of Canada's electoral democracy".  For all the murmuring of deferring to Parliament, by paragraph 47 Bastarache seems to be implying that if section 329 is not kept in the Canada Elections Act, then the Supreme Court might just have to read it back in ("staggered hours, even if more extensive, as proposed in the Lortie Report, cannot alone perfectly address the problem of voter confidence. Informational imbalance remains if s. 329 of the Act is not retained").

There's really only one way around the decision: section 329 should be repealed by Parliament.  If there are concerns about poll results in the east materially affecting voting decisions in the west (something which is not supported by the evidence presented), then, as recommended by the Lortie Report, stagger voting hours or simply hold off on counting all ballots until all polls are closed.  But even doing that will not address the more pressing concern raised by the decision in Bryan: the dramatic lowering of the threshold when it comes to requiring the government to prove its case in relation to legislative action which affects our fundamental rights and freedoms.

Reproduction Tariff

For those interested in how the world of online music sales functions, the Copyright Board of Canada yesterday released their decision on the mechanical royalty rates to be paid by online music sellers.  Nearly sixty (count 'em!) pages of analysis go into explaining how the Board arrived at the relevant results: 7.9% of retail sales price for permanent downloads, 5.3% of the subscription fee for limited downloads and 4.1% of the subscription fee for streaming.  Michael Geist comments here, and Russell McOrmond provides some structural background on how the whole thing works here.

BT Review: Shutting Out the Sun

Shutting Out the Sun - How Japan Created Its Own Lost Generation, by Michael Zielenziger (2006) (Publisher: Nan A. Talese/Doubleday)

What if there were people who locked themselves in their rooms and literally didn't leave for days, weeks, months or even years at a time?  What if there were hundreds of thousands of these people?  Beyond the human toll exacted on these individuals and their families, would this phenomenon say anything about the society in which such hermits (for lack of a better term) lived?  Answering that question is what impels Michael Zielenziger to explore the Japanese social disfunction known as hikikomori.

One of Zielenziger's strengths, both from an investigatory and an analytical approach, is that he is an outsider to the culture which he is trying to understand - this seems to enable his efforts to contact the hikikomori, those young Japanese men (and most appear to be men) who sequester themselves from society, and their families, since in the complex and subtle modes of Japanese interaction, there is less shame in speaking to an outsider about these matters than to a neighbour; Zielenziger's status also permits him to provide comparative examples of other Asian societies, and how they seem to have avoided the problem of hikikomori.

Shutting Out the Sun offers many intriguing insights into Japanese culture, some banal (such as the apparent unwillingness to make extensive use of computers and electronic networks in business) and some fundamental (such as the social concepts of ijime (widespread bullying which appears endemic to Japan) and tatamae (or "face"), on the way to making Zielenziger's broader point: that Japan is in the midst of a profound societal stagnation, arising from the structural rigidity of the culture and the torrents of globalization washing around it.  The hikikomori phenomenon is, on Zielenziger's account, simply a manifestation of an impulse to withdraw and self-isolate which is a reaction to the failure of the Japanese economic model.  There is an enormous amount to be learned here, and while not everything should be taken as gospel truth, it provides a fascinating starting point for anyone wishing to inquire more deeply.

For the first third of the book, I was a bit confused as to how he was going to maintain the "story" of the hikikomori for three hundred pages (once you get past the initial strangeness of "how" hikikomori function, there isn't an awful lot left to say about them, since no one seems to have anything but the vaguest ideas as to the "why") - but the book then becomes an insightful tour through Japanese history and, especially, a comparison between the divergent vectors of Japan and South Korea.  The only complaint this reader was left with was that the editing could have been tighter: certain phrases, facts and anecdotes repeat themselves throughout the text, which can end up feeling like an attempt at padding.  Other than that minor quibble, though, this book is highly recommended.

Grade: A

Recommendation: Borrow (on the Buy/Borrow/Don't Bother metric)

New Article

The good folks at the Ottawa Citizen were kind enough to publish a short op-ed today under the title "Lurching Towards Sensible Laws".  It's behind a subscriber wall, so suffice it for now to say that it expands on themes raised in this post.  If anyone out there lives in the Ottawa area, happens to pick up the Citizen, and accidentally scans the piece and forwards it to me, I swear I wouldn't complain.

The Deep Funk 03.17.07

Here's another one for the "Things I Never Thought I'd Write" folder: Carrie Underwood rocking the holy hell out of "Sweet Child O' Mine".  No, seriously.

Under Arrest - Update 03.15.07

Peopl say to me, Hey! Bob! What the f*#% is going on with the book?  (I paraphrase.)  To which I can only respond: I don't have the faintest clue.  So far as I know, it is still scheduled for release in June 2007 - but beyond that, I'm as in the dark as anyone else.  The manuscript was handed in last November, I've received the portion of the advance to which I'm entitled at this point, and I'm awaiting edits from the publisher.  Maybe they hated it so much that they've decided to just entirely cut off communications with me.  We'll see.  In the meantime, at the risk of attempting to generate interest in a book which may never be released, I figured I would start giving people an idea of what they can expect when reading Under Arrest.

A couple of the themes which (hopefully) come out in the book are that the law (a) is contingent on current social circumstances and (b) has an odd habit of continually revisting (and revising its assessment of) societal issues.  The complete title of the book - Under Arrest - Canadian Laws You Won't Believe - is actually a truncated version of my preferred title: Under Arrest - Canadian Laws and Legal History You Won't Believe.  While there are some decidedly odd laws currently on the books, we've been subject to some even stranger ones in the past - or, if "strange" isn't the proper descriptive, at least "surprising" should cover it.  Because history is such an undervalued (and undertaught) discipline, many Canadians have little information about what the legal system once looked like in this country.

I come to this because of this story:

[Quebec]'s human rights tribunal has fined a Montreal-area bar $16,000 for refusing to serve two black men in 2003 because it would be bad for business.

... Seydou Diallo and Mamadou Gologo, both of Malian origin, were told on the night of Sept. 13, 2003, and again six days later, that Le Surf bar had a no-blacks policy because their presence would hurt business.

I trust no one is surprised to learn that it is now illegal to refuse to serve a customer on the basis of that customer's race.  While I can't promise insight, I can hopefully offer "interesting": up until roughly the 1960s it was perfectly legal in Canada for a business to discriminate on the basis of race (or various other grounds like religion, national origin, etc.).  In an eerily exact precursor to the matter reported above, the Supreme Court of Canada confirmed in 1940 in the case of Christie v York Corporation, [1940] 81 SCR 139, that a Quebec bar was perfectly within its rights when it refused to serve a black customer (there were some decisions which went the other way, usually on the basis of breach of contract, i.e., on entering a bar or retaurant, a customer had created a "contract" by accepting the "offer" made by the establishment to provide a service - if the business then refused to serve the customer, they had engaged in a breach of contract - but the dominant trend of the cases went along with the finding in Christie v York Corporation).  It was only with the advent of provincial human rights legislation in the 1960s that matters changed.

If reading about that sort of legal anecdote is something you find compelling, Under Arrest provides nine chapters and nearly 70,000 words of similar stuff.  Buy early! And in bulk!

"various accounts of what transpired"

Did I mention you should go see 300?  You should go see 300.  Preferably on an IMAX screen.  And if only to snigger at the Toronto Star, which inexplicably felt the need, for a movie adapted from a comic book and which features gargantuan monsters and stylized renderings of grotesquely deformed humans, to publish a piece "debunking" the "inaccuracies" in the film.  The movie depicts a "moral universe" which is "bizarre", they quail.  Gee, ya think?  Odd that they never saw fit to publish a similar piece about other stylized pieces of fiction like, say, any of Michael Moore's flicks.

No, You LSUC

Another round in the ongoing skirmishes regarding the Judicial Advisory Appointments Committees occurred over the weekend, and this is one worth paying attention to.  The Law Society of Upper Canada (LSUC) on Friday, March 9, 2007 sent out a press release, the full text of which (excluding contact information) is reproduced below.  Of course, it received next to no attention in the press.

the guy was there, you'd figure he'd know better

My new favourite exchange in an interview thus far this year:

[Warren Kinsella]: Punk rock - rebellion music - always seems to flourish when autocratic rulers are in charge, like Reagan or Bush. Do you agree?

[Paul Simonon:] Or Margaret Thatcher. You can keep going, really.

Oh, come on.

The Ramones - flourished 1976-1980 [Ford, Carter]

The Clash - flourished 1977-1982 [Callaghan, Thatcher]

The Sex Pistols - flourished 1977-1979 [Callaghan]

The Buzzcocks - flourished 1977-1979 [Callaghan]

The Damned - flourished 1977-1982 [Callaghan, Thatcher]

The Dead Boys - flourished 1977-1978 [Carter]

Television - flourished 1977-1978 [Carter]

The Germs - flourished 1979 [Carter]

I could go on.  I'll concede that the Clash enjoyed their most commercial success in the years from 1980 through 1982, but that's about it.  There's a reason why the updated edition of Please Kill Me - The Uncensored Oral History of Punk, a copy of which I hold in my hands, spends 374 of its 407 pages on the years up to 1980, and then devotes a total of 33 pages to the years from 1980-1992.  After 1980, what 99% of the popoulation would refer to as "punk" splintered into a myriad of derivative styles, none of which enjoyed any significant commercial attention.  All of the cultural and artistic innovation in (and most of the attention paid to) "punk" occurred from 1975 through 1980 - and if there's another sense in which "flourishing" is being used, I'd be interested in learning of it.  This Wikipedia page and Punk77 (the "77" isn't an accidental reference, by the way) offer good overviews.

I suppose you could make an argument that there was a second wave of punk's flourishing in the 1980s, with acts like Fugazi, Bad Brains and Black Flag, but surely that pales compared to the activity in the mid- to late-70s.  By the time "punk" enjoyed a significant commercial resurgence (with, say, Offspring, Green Day and the slew of Epitaph and related bands) you were well into the 1990s - at which point Bill Clinton was firmly in control of the White House.  The Warped tour started up in, what, 1995?  If anything, what's really interesting about punk is how it seems counter-cyclical to prevailing political trends, at least on the ontology proposed in the interview quoted above.  What's the big "flourishing" of punk post-2000?  One album by Green Day? BIlly Tallent?  Which reminds me of one of the great counter-factuals of rock history: how pissed off would Rage Against the Machine have been if they were releasing albums post-9/11.

Aye Bee Cee

From the Truly Random Musings department - while reading this story about Toronto real estate entrepreneur Harry Stinson, I came across this sentence: "Stinson, a veteran developer and one of the pioneers of the condo-hotel boom in the city, has filed under the Companies' Creditors Arrangement Act..." [emphasis added]  A couple of sentences later, this reference: "CCAA presents an opportunity for companies to restructure under a formal plan of arrangement..." [emphasis added]

Here's the thing: not that it comes up very much, but in about 99% of the cases where I've heard people (well, lawyers - draw the line where you wish) refer to the act in question during conversation, they refer to it as the "cee cee double-aye".  Why is that?  You rarely hear it referred to as the "cee cee aye aye", and never as the "double-cee double-aye".  Why does "cee cee double-aye" sound better?  It's not any more efficient - it has the same number of syllables as some of the alternatives.  Who studies these things? Linguists? Anyone out there have any explanation for this usage?

The Sunset Lie

It's rather remarkable, really.  This past week, three Criminal Code provisions (sections 83.28, 83.29 and 83.3), referred to colloquially as the "investigative hearing" and "preventative arrest" provisions, respectively, expired in accordance with the "sunset clause" contained in section 83.32.  That, of course, is not the remarkable thing.  For that, one needs to examine the innumerable media reports which preceded and followed the expiration of the provisions, the non-sensical statements of Liberal leader Stephane Dion ("These two provisions were very harsh if you compare (them) with the Charter of Rights "), the opinion columns of those media pundits who have made a habit of commenting on Canada's anti-terror laws (like, say, here), the official position of the Liberal Party of Canada, the musings of the Liberal's water carriers, etc.  I could go on.

Wade through everything and you will not learn something that one would have thought would be rather important: two of the three provisions (sections 83.28 and 83.29) were specifically held to not violate the Charter of Rights and Freedoms.  Don't take my word for it: take the word of the Supreme Court of Canada.  They even helpfully named the case "In the matter of an Application under section 83.28 of the Criminal Code", just in case anyone wanted to, I don't know, do some research on the matter.

The Court concluded that the investigative hearing regime provided for in section 83.28 of the Criminal Code did not violate sections 7 or 11 of the Charter, nor did they "infringe the principles of [judicial] independence and impartiality".  (Although the Court did not specifically address section 83.29, it is functionally a subordinate provision to section 83.28, providing that an arrest warrant can be issued for a person named in an order issued under section 83.28(4) and who is not obeying the order.)

To draw the point a little more finely, for all the hue and cry about how draconian these provisions were, the legal authority with the power to decide whether they did or did not violate the rights of Canadians concluded that two of the three provisions did not.  I'm not arguing whether the preventative arrest should have been extended, I'm pointing out that the very reason which was cited by the parliamentary opposition and their supporters for allowing the investigative hearing provisions to expire was a lie.  Sections 83.28 and 83.29 do not need to be modified, because they are already Charter-compliant.

To draw the point most finely of all, the same Liberal party which not only drafted and enacted the investigative hearings in 2001 when it was in government, but then proceeded as government to argue the validity of the provisions all the way to the Supreme Court of Canada, suddenly threw on its green scarves and decided that it would ignore not only its own previous position, but the guidance of the Supreme Court of Canada.  Which is odd, because some of the same people who erupted in cheeks-wet-with-tears joy over the SCC decision in Charkaoui studiously ignored the decision of the same Court in Application re s. 83.28 of the Criminal Code.  Odd, that.

"a modest $400 an hour"

Fair access to the legal system is quickly becoming an abstract ideal, rarely realized.  Good on the Toronto Star for publishing this article:

With the cost of a three-day civil trial estimated at $60,738 – more than a year's income for most households – Canadians are being driven to financial and emotional ruin by a justice system that's priced itself solidly out of reach.

Part of the answer may be making it an ethical obligation to render a certain portion of a lawyer's working hours per year in the service of pro bono matters.  Large Canadian firms, especially compared to their American brethren, do not have the institutional culture in place which encourages and even mandates pro bono work on the part of employees - which is something that should change.

The Deep Funk 03.03.07

It's been a while.  Anyways.  While hip hop pretty much owns the patent on the diss track, let the record show that there was significant prior art: "Sweet Home Alabama" was such a devastating response to "Southern Man" that Neil Young's essentially been irrelevant ever since.  History doesn't record who the poor bastard was that prompted the Dandy Warhols' recording of "Not If You Were the Last Junkie On Earth", but this is as good an example as you'll find of a band too smart to enjoy significant commercial success.