24 June 2023

Surveillance

'“It’s About Safety Not Snooping”: Parental Attitudes to Child Tracking Technologies and Geolocation Data' by Jane Mavoa, Simon Coghlan and Bjørn Nansen in (2023) 21(1) Surveillance and Society comments 

Families are increasingly using new apps and devices that provide detailed information about the location and activities of children and other family members. While typically performed for benevolent reasons such as maintaining child safety, tracking technologies like Life360 and Find My iPhone raise concerns about snooping and surveillance. This paper examines parental behaviours and attitudes towards this controversial practice via an online survey that collected 112 responses from parents of children aged 5–18. A significant number of parents reported using tracking tools. Parents’ views about the practice were sometimes ambivalent and in disagreement. Perspectives variously included: defending geo-tracking as conducive to child wellbeing and family management and logistics, contesting the language of surveillance used to describe it, and opposing the use of these technologies as antithetical to child independence and choice. After exploring such themes, the paper identifies and critically discusses the socio-ethical issues of changing family norms associated with powerful child monitoring technology, child autonomy and consent, and the normalisation of geo-tracking and surveillance. The discussion employs Helen Nissenbaum’s (2009) concept of contextual integrity to evaluate family and child privacy and to illuminate the socio-ethical complexity of this evolving technological practice. 

 'Power, Stress, and Uncertainty: Experiences with and Attitudes toward Workplace Surveillance During a Pandemic' by Jessica Vitak and Michael Zimmer  in the same issue notes 

There is a rich literature on technology’s role in facilitating employee monitoring in the workplace. The COVID-19 pandemic created many challenges for employers, and many companies turned to new forms of monitoring to ensure remote workers remained productive; however, these technologies raise important privacy concerns as the boundaries between work and home are further blurred. In this paper, we present findings from a study of 645 US workers who spent at least part of 2020 working remotely due to the pandemic. We explore how their work experiences (job satisfaction, stress, and security) changed between January and November 2020, as well as their attitudes toward and concerns about being monitored. Findings support anecdotal evidence that the pandemic has had an uneven effect on workers, with women reporting more negative effects on their work experiences. In addition, while nearly 40% of workers reported their employer began using new surveillance tools during the pandemic, a significant percentage were unsure, suggesting there is confusion or a lack of transparency regarding how new policies are communicated to staff. We consider these findings in light of prior research and discuss the benefits and drawbacks of various approaches to minimize surveillance-related worker harms.

19 June 2023

Rights of Nature

'Laboratories of the Future: Tribes and Rights of Nature' by Elizabeth Kronk Warner and Jensen Lillquist in (2023) 111 California Law Review 325-393 comments

From global challenges such as climate change and massextinction, to local challenges such as toxic spills and undrinkablewater, environmental degradation and the impairment of Earthsystems are well documented. Yet, despite this reality, the U.S. federalgovernment has done little in the last thirty years to provide acomprehensive solution to these profound environmental challenges;likewise, significant state action is lacking. In this vacuum, environmental legal advocates are looking for innovative environmental solutions to these challenges. Against this backdrop, rights of nature have increasingly gained traction as a possible legal tool to help protect the natural environment from the harms perpetrated by humans. Rights of nature laws generally have two elements: (1) legal personhood for natural entities, such that nature has standing in court, and (2) substantive rights for natural entities. This Article explores the scope and origins of rights of nature and examines how they are being implemented both within the United States and abroad. It highlights the work being done by Tribes and Indigenous Peoples in this space and argues that, particularly in the United States, state and local governments should learn from this work. Specifically, the work of Tribes in this space can serve asalternative ethical paradigms and laws for non-Native communities looking for an alternative to the status quo. In the United States, Tribes can serve as "laboratories" for environmental change given their tribal sovereignty and environmental ethics. In addition, Tribes exist within a different legal framework from U.S. states and municipalities. By comparing rights of nature-related litigation in Florida and in the White Earth Nation of Ojibwe, it becomes clear that rights of nature provisions adopted by Tribes stand a greater chance of withstanding legal challenge than provisions adopted by municipalities. Accordingly, environmental reform can benefit from the collaboration and experimentation of Tribes.

The authors argue 

Rights of nature are increasingly moving into the legal mainstream, both in the United States and abroad. Rights of nature laws, which seek to make injuries to natural entities legally cognizable and justiciable in court, generally consist of at least one of two elements: (1) legal personhood for nature or specific natural entities and (2) substantive rights for nature or specific natural entities. To date, six countries have implemented the rights of nature on a national level, and several states and cities outside the United States have passed rights of nature. Within the United States, various Tribes and municipalities have passed rights of nature laws; no state has done so. Considering that before the early 2000s, no rights of nature law had been passed, these laws represent a fairly significant legal and cultural shift, at least within their respective jurisdictions. Environmental law scholars are clamoring to examine the impacts of these developments and how advocates might successfully utilize such arguments in state and federal court. While existing environmental laws and related environmental ethics and values within the United States tend toward anthropocentrism in prioritizing the protection of humans alone, rights of nature laws and ideals center on the natural world. For many who view rights of nature as valuable to the effective protection of the environment and as a necessary switch toward an environmental ethic that will better protect the Earth from the negative impacts of exploitation, it may seem as if the arc of the moral universe is finally bending toward justice. 

Ultimately, non-Native communities considering or looking for ethical paradigms alternative to anthropocentrism should consider the work being done by Tribes in this space. Tribal environmental ethics may depart from anthropocentrism, and Tribes are already implementing laws based on such alternative ethical paradigms. Yet, scholars and advocates often fail to look to Indigenous Peoples and Tribes for guidance in this area;" Indigenous Peoples and Tribes have been incorporating the rights of nature principles into tribal and customary law for a long time. This Article helps to fill the void by demonstrating not only that the theoretical conception of rights of nature may benefit from Indigenous Peoples, but also that Tribes can offer legal protections where other actors cannot. To date, at least five Tribes within the United States have passed rights of nature resolutions.  These Tribes, as much as any state or municipality, represent laboratories in which the concept of rights of nature can be tested for strengths and weaknesses. This testing may in fact produce the United States' first enforceable rights of nature provisions. 

Tribes have the potential to possess significant regulatory power and are unique within the U.S. legal system. "[T]hey are both sovereigns and wards subject to the protection of the federal government."  In Montana v. United States, the Supreme Court stated that "the inherent sovereign powers of an Indian [T]ribe do not extend to the activities of nonmembers of the [T]ribe."  Yet, it created two exceptions to this general rule: first, a "[T]ribe may regulate ... the activities of nonmembers who enter consensual relationships with the [T]ribe or its members, through commercial dealing, contracts, leases, or other arrangements." Second, a "[T]ribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the [T]ribe."  The second Montana exception is especially relevant to the enforcement of rights of nature laws. 

Thus, while U.S. municipalities have faced substantial obstacles to enacting enforceable rights of nature provisions, Tribes may be more successful. This is because of the inherent sovereignty of Tribes and because tribal environmental ethics differ from those of many non-Native communities in notable ways. Many (although certainly not all) Tribes possess a relationship with their environment and land that recognizes not only how humans are benefitted by nature but also values nature for its own self-worth. This special connection with the environment and land therefore informs the environmental ethics of many Tribes. That ethic, which differs from mainstream environmental ethics, improves the likelihood of effective and enforceable rights of nature provisions within tribal communities. 

This Article highlights a legal path for Tribes in the United States to enact enforceable rights of nature provisions where U.S. municipalities cannot. As such, Part I more fully details the concept of "rights of nature" and how this legal concept relates to the more traditional anthropocentric model of environmental laws used within the United States. In addition, Part I examines both international and subnational developments in the United States and discusses the relative strengths and weaknesses of the several existing models, as well as challenges to enforceability. Part II turns to Tribes in the United States and more fully details tribal exceptionalism and sovereignty, tribal environmental ethics, and the concept of Tribes as laboratories. Part II then examines several tribal rights of nature provisions. Part III compares two ongoing cases to highlight the potential strength of Tribes in this area: Wilde Cypress Branch v. Beachline South Residential,  which stems from Orange County, Florida's rights of nature provision, and Manoomin v. Minnesota Department of Natural Resources,  which stems from the White Earth Band of Ojibwe's rights of nature provision. 

Ultimately, this Article advances the emerging rights of nature literature in two important ways. First, it demonstrates how Tribes have made and continue to make important contributions to the rights of nature discourse both inside of the United States and beyond. Second, this Article examines how legal arguments in support of rights of nature have a greater likelihood of success in tribal court systems than in other legal systems within the United States. This is because, to date, courts have not questioned a Tribe's sovereign authority to enact such legislation; the same cannot be said for municipalities within the United States. This is the first Article to substantively examine how Tribes within the United States fit within the larger rights of nature movement and how the unique role of Tribes within the U.S. legal system may produce different results. ...

Further 

Professor Stone's original article advocating rights of nature is focused primarily on legal personhood,  as its title suggests. As other scholars have noted, "[l]egal personality is articulated as the capacity to bear rights and duties in law. Legal personhood typically confers three specific rights . . . [including] the right to sue and be sued in court (known as legal standing)."  When it comes to rights of nature laws, proponents typically focus on legal standing. 

Standing under the U.S. Constitution has three elements: (1) injury in fact, (2) causation, and (3) redressability.  Establishing legal personhood for natural entities would remove a barrier to establishing the "injury in fact" prong, in essence, by allowing injuries to natural entities to be legally recognized and by allowing groups to rely on those injuries when bringing suit. 

Prior to Stone's article, the law of standing was in flux;  some lower courts had held that injuries to recreational and aesthetic interests were sufficient to establish standing for groups with a "special interest" in areas affected by federal projects.  These cases allowed for proponents of environmental causes to establish standing through injury to them but did not permit standing for non- humans; thus, non-humans are without rights in the eyes of the law. This is the crux of Stone's point: "[A]n entity cannot be said to hold a legal right unless and until some public authoritative body is prepared to give some amount of review to actions that are colorably inconsistent with that 'right."'  In other words, even if a jurisdiction were to recognize substantive rights to a natural entity, without a process by which to vindicate those rights, that entity would be de facto rights-less. 

Thus, Stone argues that to be a "holder of legal rights," an entity must satisfy three criteria: "[F]irst, . . . the thing can institute legal actions at its behest; second,... in determining the granting of legal relief, the court must take injury to it into account; and, third, . . . relief must run to the benefit of it."  On the first point, Stone argues for a guardianship model as a substitute for traditional standing.  Here, "when a friend of a natural object perceives it to be endangered, he can apply to a court for the creation of a guardianship." This, he argues, opens the floodgates to litigation less than recognizing standing simply for recreational interests.  As is discussed below, several Tribes and municipalities have adopted this recommendation and created guardianships for the natural elements impacted by their rights of nature provisions. 

Regarding his second point, Stone argues that injuries to natural objects should be assessed under the "welfare economics position": "Every well-working legal-economic system should be so structured as to confront each of us with the full costs that our activities are imposing on society."  Though not articulated explicitly, Stone argues both for the economic costs of pollution and for the injuries to animals' right to exist to be legally cognizable.  Finally, on his third point, Stone argues that remedies for damages to natural objects should be placed in a trust fund, which would then be used to repair the damage to the object.  .... 

Yet, it is not altogether clear whether recognizing rights for either nature in general or a specific natural entity would remedy some of the issues environmental advocates face in establishing standing. For instance, in Juliana v. United States,  the U.S. Court of Appeals for the Ninth Circuit, after acknowledging the urgency of climate change and the U.S. government's role in failing to address it,  held that the "redressability" prong of standing was not met given that it was outside the power of an Article III court to grant relief.  While rights of nature laws allow for a legal recognition of natural entities' injuries, a court may lack the power to redress these injuries. This is an issue with which rights of nature proponents must contend.

In sum, rights of nature proponents often advocate extending legal personhood to non-human natural entities in an effort to make these entities' injuries legally cognizable. While under the current standing doctrine aesthetic and recreational injuries to humans are cognizable, proponents argue that simply recognizing injuries to natural entities themselves would be more straightforward, be less subjective, and would remove one barrier-but not all barriers-to bringing suit on behalf of an injured natural entity.

'Rights of Nature Include Rights of Domesticated Animals' by Anne Peters in Philipp B Donath, Alexander Heger, Moritz Malkmus and Orhan Bayrak (eds), Der Schutz des Individuums durch das Recht (Springer, 2023) 15-30 comments 

The current trend to grant nature and natural entities rights is deficient to the extent it leaves domestic animals out of the legal picture. The 2022 Ecuadorian Constitutional Court judgment on the wild monkey Estrellita manifests the undue legal privileging of wild animals over domesticated animals. Estrellita extended rights of nature to wild animals, although the recognition of rights of nature amounts to false indigenisation and organised hypocrisy. The rationales offered for rights of nature, ranging from materialism over animism, are less convincing than the explanation for rights that are due to animals because of their ability to suffer. Three further practical functions of legal rights (resistance against commodification, shifting the burden of explanation and justification, and off-setting political powerlessness) are highly relevant for animals. Especially domesticated animals need legal rights more than mountains.

'How Ecuador's Courts Are Giving Form and Force to Rights of Nature Norms' by Craig M Kauffman and Pamela L Martin in (2023) Transnational Environmental Law argues

 In 2008, Ecuador recognized rights of nature (RoN) in its Constitution. Since then, RoN have been relied upon in judicial decisions 55 times in Ecuador. Following years of ad hoc treatment of RoN by Ecuador's government and courts, its Constitutional Court selected various cases to establish binding jurisprudence in respect of RoN. In doing so, the Constitutional Court and various provincial courts in Ecuador have clarified the content of RoN, including specific criteria for determining RoN violations and the relationship between RoN and other constitutional rights, including community and economic rights related to development. Moreover, the courts are imposing sanctions on RoN violators, including the state and powerful commercial sectors. This article shows how Ecuadorian court decisions are changing RoN from a vague, abstract concept into a set of specific standards for how to balance RoN with various human rights and existing environmental law in order to implement sustainable development in an integrated and holistic manner that does not sacrifice ecosystem functioning. In doing so, the article contributes to the emerging literature on how new environmental law norms are constructed as they are put into practice, as well as the important role that judges play as norm entrepreneurs. ...

The above cases undermine previous analyses suggesting that RoN in Ecuador are merely symbolic and unimplemented as a result of judicial corruption and structural barriers. Ecuadorian judges are also rejecting the idea that the Constitution provides no guidance for how to reconcile competing constitutional rights, as some scholars allege. Court rulings emphasize the Constitution's commitment to a new development approach rooted in the Andean Indigenous concept sumak kawsay, which sees humans as embedded in natural systems and dependent on other natural entities through reciprocal relationships. Based on this, the Constitutional Court has ruled repeatedly that RoN are transversal, interacting with all other constitutional rights.

16 June 2023

Crypto

'Crypto is Not Property' by Robert Stevens in (2023) Law Quarterly Review (Forthcoming) is characterised as 'A short paper explaining why "cryptoassets" cannot constitute legal property, despite the academic consensus to the contrary'. 

Stevens comments

That crypto is “property”, has widespread academic support, the endorsement by the United Kingdom Jurisdiction Taskforce (chaired by Sir Geoffrey Vos the then Chancellor of the High Court and now Master of the Rolls) and also that of the Law Commission in its recent consultation paper. The claim of this short article is that it is (dangerously) untrue. As a secondary matter, it is claimed that the case for the legislature recognising cryptoassets as “property” generally for legal purposes is extremely weak, and that for the courts taking such a step non-existent. 

Lawyers should not be bedazzled by new technology, nor by these innovative ways of holding wealth. Almost all cryptoassets are unproductive and many are positively harmful. For most of their forms, our legal system should not be seeking to facilitate them but, alongside other jurisdictions, attempting to eliminate their use where possible.  ...

Within a common law system, what rights (or privilege, powers or immunities) does the correct holder of a key to a Bitcoin wallet have? Do they have a cause of action to enforce a primary right or one to correct any infringement? It is impossible to identify any such claim. No tort applicable to things, such as trespass, conversion or (where still in existence) detinue is operative as these are all dependent upon the claimant having a right in relation to a physical thing that can be possessed. The holder of the key has no contractual rights against anyone, the whole point of the system is to do away with intermediaries such as banks who would owe such a duty. There are no statutory rights of enforcement, such as those of someone who holds a patent, copyright or trade mark. Unlike the holder of a milk quota, the string of numbers that gives access to the Bitcoin wallet does not, without more, acquire a privilege not to perform any duty or an immunity from any suit. 

The holder of a Bitcoin key has no property right, in either of the two senses identified above. It is a form of information, admittedly with special factual features given to it by virtue of the system within which it makes sense. But that is all.


11 June 2023

Bafflegab and Caesar's Law

In R. v. Cooper 2023 BCPC 69 the Provincial Court of British Columbia deals with a range of OPCA arguments, pithily dismissed as bafflegab. 

The Court states 

[2] Mr. Cooper represented himself at trial. On the first day of the trial, he advised the Court that, while he was previously known as Kenneth Jeffrey Cooper, he preferred to be called “Tiberius Rex”, or just “Tiberius”. For the sake of clarity, I will refer to him throughout these reasons as the “Defendant”. ... 

[5] On May 24, 2020, the Defendant was behind the wheel of a Mercedes Sprinter panel van, travelling eastbound on Highway 1. He was accompanied by Jennine Davis, who occupied the front passenger seat. The Defendant came to the attention of Cst. Halewood and other members of the Integrated Road Safety Unit who were conducting speed enforcement along the highway. 

[6] Cst. Halewood testified that he measured the Defendant’s speed at 114 km/hr in a portion of the highway that was under construction. The posted speed limit in the construction zone was 60 km/hr. The Defendant was determined to be travelling 54 km/hr over the posted speed limit. 

[7] The officers stopped the Sprinter van, and commenced an investigation. Nearly the entirety of the interaction between the Defendant and the investigators was recorded on a dashcam video recorder mounted in one of the police vehicles. Most of the interaction the police had with the Defendant inside the police vehicle was also audio recorded. As the Sprinter van was travelling at a speed in excess of 40 km/hr over the posted limit, the investigators determined that they must impound it, pursuant to ss. 148 and 251 of the Motor Vehicle Act. 

[8] The Defendant was initially not forthcoming with his name, resulting in some delays and a modicum of acrimony between him and the investigators. Eventually the Defendant provided sufficient information for investigators to determine his identity. 

[9] The Defendant raised three Charter issues at the outset. Firstly, that his s. 10(b) Charter rights were violated when, upon his arrest, he was not provided access to counsel without delay. Secondly, that his s. 8 rights to be free from unreasonable search and seizure were violated when the Sprinter van was searched without a warrant. Thirdly, his s. 10(c) rights pursuant to a claim of habeas corpus were violated when he was not transported directly from roadside to appear before a superior court justice to review the lawfulness of his detention. ... 

[13] A further issue was raised during submissions related to the seizure of the Sprinter van’s keys from the Defendant. The Defendant submitted that he did not consent to the keys being taken from him. He said that he was forcefully directed to provide them to Cst. Miller during the vehicle stop. The Defendant submitted that this was an unlawful seizure, and ought to have been considered in the context of the voir dire as a further s. 8 Charter breach. 

[14] There was some contention regarding how Cst. Miller obtained the keys. Cst. Miller testified that he asked the Defendant to provide the keys, and the Defendant did so. The Defendant testified that he was directed to turn over the keys to the van before he was placed under arrest. He said he complied because the officers “had the guns”. 

[15] The Crown argued that the court had already determined that the vehicle search was lawful, given the police officer’s duty to secure and inventory the contents of any vehicle that is subject to impoundment. Mr. Campbell argued that the vehicle could not be impounded or inventoried without the keys. As the search of the van was deemed lawful, so should the seizure of the keys. 

[16] I find the Crown’s argument to be compelling. The vehicle search and seizure was lawful. The officers had determined that the vehicle’s excessive speed would result in impoundment at the time they interacted with the Defendant, if not before. The keys were required to conduct the inventory search, which was lawful. It follows that Cst. Miller’s seizure of the keys from the Defendant was also lawful. ... 

[18] The Crown tendered documentation showing that the Defendant was a prohibited driver on May 24, 2020. These documents were entered during the trial pursuant to s. 82 of the Motor Vehicle Act, and included: 1. A Notice of Driving Prohibition Certificate of Service, showing that the Defendant was served with a Notice of Driving Prohibition by Cst. Behm on April 8, 2015; and 2. A Certificate of Superintendent, confirming that the Defendant was prohibited from driving the entire day of May 24, 2020. 

[19] Csts. Halewood and Shaw searched back of the Sprinter van prior to its impoundment. The officers seized from the van’s cargo compartment 16 cases containing 50 cartons of cigarettes each. The cases were placed in the rear of two police vehicles, and transported to the police detachment. 

[20] Cst. Miller testified that he recognized the cigarettes as being Rolled Gold, a brand with which he was familiar from his former policing duties in Northern Manitoba. He said he understood the cigarettes were made on First Nation reserves in either Ontario or the United States, and that they were illegal to possess in British Columbia because they lacked taxation stamps. ... 

[26] Cst. Grieff confirmed that each master case contained 10,000 individual cigarettes. Therefore, the total amount of tobacco seized from the Sprinter van was 160,000 cigarettes. 

[27] Cst. Grieff testified that none of the tobacco products could be legally sold in British Columbia, even on reserve, because they lacked the required Excise Duty stamps. However, the officer said enforcement action was generally undertaken only when an individual is found with more than five cartons, as was the case here. ... 

[31] Cst. Remming said the cigarettes were produced on a “native reserve”, likely one of several possible reserves in eastern Canada or the United States. He confirmed that many reserves manufacture cigarettes, and that they are legal when manufactured on reserve. He further testified that the cigarettes can be sold to Indigenous people who possess a Status Card. He explained that some First Nation reserves are able to apply for an exemption that allows them to sell the cigarettes on reserve lands exempt of provincial sales tax or any tax that would ordinarily attach to the sale of tobacco. 

[32] Cst. Remming testified that one can purchase these cigarettes in British Columbia, and that some stores selling them are located close to main routes, such as highways. However, they can only be sold lawfully on reserve lands, and to Indigenous individuals who possess a valid Indian Act Status card. 

[33] There was some discrepancy between the evidence of Csts. Grieff and Remming as to whether the seized cigarettes could be sold legally on reserves in British Columbia. Cst. Grieff said it was not lawful to sell or possess this tobacco in British Columbia, as it lacked the requisite Excise Duty stamp. Cst. Remming, however, testified in cross examination that the cigarettes could be sold lawfully on reserve land to First Nations residents who possessed a valid Indian Act status card, if the reserve had an Exempt Sale Retailer Dealer, or ESRD permit. Cst. Rumming did not clearly state that the tobacco was legal to possess on reserve in British Columbia, as he was not an expert in the legality of its possession on reserve lands. However, he did confirm that it was illegal to possess off reserve lands. ... 

[38] The Defendant elected to call evidence. He testified in his own defence, and called two other witnesses. 

[39] Ms. Henson is the Defendant’s mother. She testified that she gave him his birth name, Kenneth Jeffrey Cooper, but that he now goes by the name Tiberius. Ms. Henson was asked question about whether his legal name was registered with all capital letters; Ms. Henson said it was not. ... 

[42] In his testimony, the Defendant admitted virtually all of the essential elements of each of the charges he faced. He acknowledged that he was operating the Sprinter van that was stopped and searched by the police officers. He claimed ownership of the boxes of cigarettes contained in the back of the van. The Defendant’s defence was not based upon a misapprehension of the facts, or strong disagreement with the Crown’s evidence. Rather, it pertained to his interpretation of the law, which involved a perceived authority to operate a motor vehicle while prohibited, and possess items deemed by the government to be unlawful. 

[43] The Defendant described the “journey” he had been on since 2005 or 2006, which began with the bank initiating foreclosure proceedings upon his house. He said he began researching the law, and learned as part of his study that a person does not have to possess a driver’s license in order to operate a motor vehicle. The Defendant focused on the particular definition found in s. 95 of the Motor Vehicle Act. He said that the term “driving” had a specific meaning that did not pertain to him. He said he was not driving, but “travelling”, and therefore the strictures of the Motor Vehicle Act, which describe driving, did not apply to him. He argued that his right to move freely across the country was protected by s. 7 of the Charter. Based on his newfound understanding of the law, the Defendant said he began operating motor vehicles again, and continued to “travel” on roadways and highways. 

[44] On May 24, 2020, the Defendant acknowledged he was operating the Sprinter van, and conceded that he was travelling over the 60 km/hr limit. He said he was only keeping up with other traffic, but for reasons unknown to him, he was stopped by the investigators while the other vehicles continued onward. 

[45] The Defendant agreed that he had been served with the driving prohibition. He asserted that he was prohibited from driving for the province, not in the province. He appeared to draw an important distinction between the words for and in. As I understood it, the Defendant believed that the prohibition would only apply to him if he was a government employee, working and driving for the province of British Columbia. 

[46] Regardless, it did not matter whether he was in violation of the Motor Vehicle Act, because he was not driving while prohibited. He explained that the act of “driving” made the car a vehicle, and therefore subject to the Motor Vehicle Act. He related the act of “driving” to a commercial activity contingent upon an employment relationship. That is to say, those who were driving were doing so as part of their duties as employees. The Defendant alleged that the definition of “driving” found in Black’s Law Dictionary made a clear link between the act of “driving” and the existence of a commercial relationship of one kind or another. 

[47] The Defendant further argued that the only reason the van was searched was that the officers were “bored” while waiting for the tow truck to arrive. This was refuted by the officers who conducted the search, and I have already deemed the search to have been lawful. 

[48] As for the cigarettes, the Defendant submitted that he was a “non-status Native”, and therefore the cigarettes were legal for him to possess. He said he purchased the cigarettes, and indeed the Sprinter van, so he could earn money with “side projects”. 

[49] The Defendant argued that he had every right to purchase and transport the cigarettes, and could have as many as he wanted at one time as a “non-status Native”. He acknowledged that they were unstamped, and described himself as an unlicensed cigarette dealer. 

[50] The Defendant made a further argument that pertained to the capitalization of his name in the information. As testified to by his mother, he said that his former name only had the first letter of each name capitalized. Additionally, six or seven years ago he changed his name to Tiberius. I gather the Defendant’s point was that, as his former legal name was not all capitalized, he should not be liable for the charges when his last name was all capitals in the Information. 

[51] In his closing submissions, the Defendant explained his point of view in more detail. He said that all of Canada and British Columbia is a corporation. The laws and regulations drafted by the management of these corporations only applied to its employees, or those who worked for the government. He was not a government employee, but a private citizen. Therefore, none of the laws pertained to him: not the Motor Vehicle Act, and not the Tobacco Tax Act or the Excise Act. 

[52] The Defendant also argued that he had an “off the books” understanding with a police officer in Abbotsford. He said that officers knew about him, and at least one of them agreed that if he “appeared legal”, the police would leave him alone. He provided no evidence to support this arrangement. Nonetheless, he submitted that, if one officer in Abbotsford allowed him to operate a scooter without complying strictly with the laws pertaining to motor vehicles, then officers throughout British Columbia ought to be bound to the terms of this arrangement, regardless of what motor vehicle he might be found to be operating. 

[53] As for the legality of possessing unstamped cigarettes, the Defendant again asserted that federal and provincial laws bound government employees, not private citizens such as himself. He confirmed that, as a “non-Status Native”, he did not possess an Indian Act status card. When asked to confirm the nature of his Indigeneity (for example, if he was Metis or Inuit), the Defendant declined to answer, arguing that such a question was racist. 

[54] The Defendant further argued that all of Canada was “native land”. He said this was a fact that provided a further defence to the tobacco charges. If it was legal to possess the tobacco on reserve land, the fact that much of Canada was unceded Native territory of one kind or another had the effect of rendering his conduct lawful. He argued that the cigarettes were produced on “native land”, but had to be transported to other places. If transportation of any kind was legal, then it must be legal for him to transport them as well. 

[55] The Defendant submitted that he participated in a kind of shadow economy that operated alongside the government controlled economy, but outside of the strictures of provincial or federal regulation. Unstamped cigarettes were an example of a product that could be purchased within this shadow economy. In exchange for generally lower prices, consumers assumed some amount of risk. For example, there was no guarantee that the cigarette packages purchased in the shadow economy would have a uniform number of cigarettes in them, or that the content would be pure tobacco. 

[56] As a further example, the Defendant suggested that he could legally purchase a pie from his neighbour. However, by agreeing to do so, he was assuming some level of risk, as there were no regulations to ensure the ingredients were uniform or safe. He would have no recourse if he became ill, as he would, had he purchased the pie from a government sanctioned vendor, such as a commercial store. He accepted that risk, and it was his right to do so because he was not a government employee. 

[57] In sum, the Defendant’s position was that he had a right to operate outside the limits of government laws or regulations. He chose to opt out of mainstream laws, and thus they did not apply to him. Laws and regulations were in place to regulate the conduct of government employees, not private citizens such as himself. 

[58] As a final argument, the Defendant stated he had not consented to the prosecution, and once again claimed habeas corpus. He equated the compulsion to participate in the trial to being held against his will. He was advised that the prosecution would continue with or without his participation. The Defendant thereafter continued to participate. 

[59] The Defendant’s position resembles what has come to be known as Organized Pseudo-Legal Commercial Arguments, or “OPCA”. He says that as a living man and a natural born human, he possesses certain inalienable rights that transcend the rules and regulations thrust upon him by the corporate entities of British Columbia and/or Canada. As I understood him, the Defendant’s position was that he was entitled to behave in any way he deemed appropriate, so long as he did not physically hurt anyone. This included possessing items that he wanted to, whether or not laws, Acts or Regulations deemed it legal to do so. 

[60] The Defendant has been polite and respectful throughout this prosecution. Nonetheless, his position is, at its core, untenable. It is baseless and without merit. I am encouraged to summarily dismiss such arguments as nonsensical bafflegab, and not waste the taxpayer’s money or the court’s time on submissions that have a zero chance of success (see Meads v. Meads, 2012 ABQB 571; and R. v Hardy, 2022 BCPC 189 at para. 1, among many other decisions). I feel, nonetheless, compelled to make a few comments. 

[61] Firstly, with respect to the Driving While Prohibited charge. I find it astounding that the Defendant would think it was a useful exercise to argue that he was “travelling”, and therefore not “driving”. 

[62] He relied on an alleged definition of “driving” found in Black’s Law Dictionary to support his position that, by changing the name of the activity, he would avoid liability for it. The Defendant supplied no definition from Black’s Law Dictionary. Nor did he explain how such a definition, if it existed, would impact the Motor Vehicle Act. 

[63] The British Columbia Court of Appeal, however, did grapple with the definition of “driving” as it pertains to the Motor Vehicle Act, in R. v. Steeden, 1995 CanLII 344 (BC CA). The facts in Steeden are dissimilar to those in this case. The issue in Steeden was whether failing to apply a parking brake before disembarking from a motor vehicle which had been parked with the engine off constituted an act of driving. 

[64] Nonetheless, at para. 9, the Court of Appeal referenced Black’s Law Dictionary (5th Ed.) in defining driving as follows: To urge forward under guidance, compel to go in a particular direction, urge onward and direct the course of. [65] The Court also referenced the Shorter Oxford English Dictionary (3rd Ed.) definition of the verb “drive”: To urge onward and direct the course of (a vehicle or the animal which draws it, a railway train, etc.);...to cause to move along. 

[66] The Court discussed these definitions in the context of the Motor Vehicle Act at para. 13, concluding as follows: It is my view, that when it is intended to describe conduct in relation to a motor vehicle, the ordinary meaning which attaches to the verb “drive” in the English language is one that combines the elements of movement and control; movement of the vehicle and control of that movement by the person said to be driving. 

[67] I accept this is a valid definition of driving for purposes of the Motor Vehicle Act, and I consider myself bound to follow it in the circumstances of this case. 

[68] Pursuant to s. 2 of the Motor Vehicle Act, a “motor vehicle” means a vehicle, not run on rails, that is designed to be self-propelled or propelled by electric power obtained from overhead trolley wires, but does not include mobile equipment, a motor assisted cycle or a regulated motorized personal mobility device. Clearly, the Sprinter van was a “motor vehicle” as defined in the Motor Vehicle Act. 

[69] Giving effect to the Defendant’s argument would be the worst example of elevating form over substance. It would render virtually any law meaningless, merely by referring to the prohibited conduct by another name. One could not be convicted of shoplifting when they were simply repurposing unsold goods for personal use. Assault would no longer be criminal, when the Defendant was guilty only of intentional force application absent consent. Murder would be allowed as purposeful non-consensual early life termination. 

[70] I give little consideration to the Defendant’s argument that laws and regulations are only meant to direct the conduct of government employees. That argument falls under the rubric of nonsensical submissions that deserve summary dismissal. Like it or not, one cannot simply “opt out” of the laws and regulations with which one does not agree. 

[71] Society provides many benefits to its citizens, including the construction and maintenance of roadways to allow for free travel. In exchange for so doing, citizens are bound by the rules that dictate how these collectively owned assets are to be utilized. Driving is a privilege, not a pre-ordained human right. That is the cost of society, of technology, and of community. As it has been said at least since the 1930’s, “there ain’t no such thing as a free lunch.” If one is unprepared to abide by the laws and regulations that govern the privilege of driving, one can simply choose not to drive. 

[72] I further dismiss the following of the Defendant’s arguments on the basis that they are meritless and deserving of summary dismissal because they have no chance of success: 1. That he is not Kenneth Cooper, but rather Tiberius or Tiberius Rex, and by changing his name, he has disassociated himself from the person charged with these offences. I am satisfied that the Defendant is the one who is alleged to have committed the offences. 2. That, because the Defendant’s former name appears in all capitals in the information, and the name given to him by his mother was not so capitalized, somehow this has bearing on the ability of the prosecution to pursue the matter against him. It does not. 

[73] It is clear that the Defendant was driving the Sprinter van on May 24, 2020. He said in his evidence that he was, even though he called it “travelling”. It is equally clear, and admitted by him, that he was prohibited from driving the entire day of May 24, 2020. ... 

[84] Finally, the “due diligence” defence described in s. 233 is inapplicable, as the Defendant exercised no due diligence to prevent the commission of the offence. He simply considered himself not to be bound by laws, acts or regulations pertaining to the possession of unstamped cigarettes. ... 

[95] Additionally, the Defendant characterized himself as a “non-Status Native”, and argued that this entitled him to possess unstamped tobacco in any amount he wished. He further argued that all of Canada is “native land”; as such, possession of these products anywhere in Canada is lawful. 

[96] These defences fall under the rubric of specious arguments that ought to be summarily dismissed. It is clear that the Defendant was stopped on Highway 1, in an area that was not part of any designated First Nation reserve. I reject his argument that all of Canada is “native land”, and therefore he ought to be exempt from these charges. If I was to accept this argument, it would render the entire taxation scheme for tobacco products in British Columbia unenforceable. There would be no need for taxation stamps, as there would be no possession off reserve lands. Clearly, that was not the intention of the Legislature in enacting the Tobacco Tax Act or Regulation. It is a philosophical argument put forth for the purpose of shirking liability for these regulatory offences. It is not a defence to the possession charges faced by the Defendant. 

[97] Similarly, the Defendant baldly asserted that he was a “non-Status Native” without: 1. Any explanation as to what that meant; or 2. How his claim of being a “non-Status Native” would impact his ability to possess the tobacco products. 

[98] Section 98(2) of the Offence Act, [R.S.B.C. 1996] C. 338 stipulates: (2)The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information. 

[99] I found no wording in the Tobacco Tax Act or Regulation that referred to exemptions that exist for “non-Status Natives”. Nor was I pointed to any enactment that would indicate such an exemption existed. Given prima facie evidence of unlawful possession, and pursuant to the operation of s. 98(2) of the Offence Act, without any basis to conclude that an exemption exists, I summarily dismiss the Defendant’s claims on the basis that they are devoid of merit. 

[100] The Defendant made a further claim that common law, or Caesar’s law as he called it, operated to overrule any rules enacted by government. Therefore, none of the Acts or Regulations he is alleged to have violated have any force or effect. I dismiss this argument as being simply untrue. 

[101] The Defendant suggested that this prosecution was fundamentally unfair because in some circumstances, some exemptions exist for some people, and not others. He used as an example the fact that individuals devoted to the Sikh religion do not have to wear helmets. Presumably he was referring to Sikh individuals riding bicycles or motorcycles. 

[102] The idea that because some because people are validly exempted from the law, therefore all people should be exempted from the law, is intellectually unsound, patently false and deserving of summary dismissal. 

[103] The Defendant’s claim that his right to travel freely through the country was violated is also dismissed. His travel is subject to the rules and regulations that govern that form of travel, including the Motor Vehicle Act. 

[104] Finally, the Defendant’s argument that since he did not consent to this prosecution, somehow it was unlawful, is summarily rejected. Such a claim is deserving of no further comment. It is not a valid use of taxpayer-funded resources to refute manifestly unsound, baseless conjecture.

10 June 2023

Pseudos

Another OPCA judgment in James v District Court at Whanganui [2023] NZCA 181, with the Court referring to the appellant's approach as 'properly characterised as “sovereign citizen” type arguments. 

 [1] The appellant, who goes only by the name James, brought judicial review proceedings in the High Court in February 2022 in which he sought an injunction against the Whanganui District Court. The terms of the injunction were directed towards halting or challenging proceedings brought against James in District Court. It is not possible to discern the subject matter of the District Court proceedings with any certainty from the documents James has filed. 

[2] Churchman J struck out the judicial review proceeding as an abuse of process. James filed an appeal against Churchman J’s decision. In a minute, Miller J directed that the Court consider striking the appeal out as an abuse of process under r 44A of the Court of Appeal (Civil) Rules 2005 (the Rules). He directed that James be given the requisite notice under r 44A(2) and, on the expiry of the time for submissions, the Registrar refer the appeal to a panel for decision on the papers. This is the issue now before us. 

[3] Rule 44A relevantly provides: (1) In addition to any express power in these rules to strike out an appeal, the court may, on an interlocutory application or on its own initiative, make an order striking out or staying an appeal in whole or in part if— ... (c) the appeal is frivolous, vexatious, or otherwise an abuse of the process of the court. 

[4] In Commissioner of Inland Revenue v Chesterfields Preschools Ltd, this Court explained that:

... a “frivolous” pleading is one which trifles with the court’s processes, while a vexatious one contains an element of impropriety. ... [One that is] “otherwise an abuse of the process of the court” ... extends beyond the other grounds and captures all other instances of misuse of the court’s processes, such as a [proceeding] that has been brought with an improper motive or are an attempt to obtain a collateral benefit. 

The High Court decision 

[5] As noted, Churchman J struck out James’ proceeding under r 15.1(1) of the High Court Rules 2016.[4] Rule 15.1(1) permits the court to strike out a pleading that: (a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or (b) is likely to cause prejudice or delay; or (c) is frivolous or vexatious; or (d) is otherwise an abuse of the process of the court. 

[6] In his pleading, James sought to distinguish between “the Man James” and “the Legal Fiction Person JAMES JONES” and asserted that District Court required the former’s written consent to “conduct any business” with the latter and that consent had been withdrawn. 

[7] It appeared to Churchman J that the form and wording of James’ statement of claim was consistent with that typically advanced by the “Organised Pseudolegal Commercial Argument Litigants” who adhere to the “Sovereign Citizen movement”.  Essentially, these arguments proceed on the premise that an individual has both a natural persona and a separate legal or “corporate” persona and that the natural person cannot be subject to the jurisdiction of the state without their consent. The Court has previously held that this position is untenable. Almost always, it will be viewed as an abuse of process by a litigant. Churchman J concluded that there was no legal basis for James’ claim against the Whanganui District Court and that the proceeding was an abuse of process. ...

[9] Otherwise, James’ submissions in response to Miller J’s minute can be summarised as being that his appeal is not an abuse of the process of the Court because his view of the law is right — that is, the District Court acted unlawfully, the High Court has failed to acknowledge his application for a “Void Order of Court”, and James now has a “fundamental Right of a hearing” in this Court. 

[10] The grounds of appeal, although expressed in a convoluted manner and although denying the concepts of “Organised Pseudolegal Commercial Argument” and “sovereign citizen”, nevertheless rest on the argument regarding the “separation” between natural and legal persons and the rejection of Acts of Parliament unless consent has been given. They can be summarised as being that the District Court has no jurisdiction over James without him giving his consent, which he has not done, and that Churchman J erred in rejecting this argument. 

[11] The arguments that James relies on are properly characterised as “sovereign citizen” type arguments. They cannot succeed. Apart from the sovereign citizen arguments, there is no genuinely identifiable legal or factual error asserted. We are satisfied that the appeal cannot succeed. We consider that it is properly viewed as both vexatious and an abuse of the Court’s process.

In James v District Court at Whanganui [2022] NZHC 2309 the High Court stated 

[4] The applicant says that his name is James, and I will therefore call him that. His statement of claim seeks an injunction against the Whanganui District Court in the following terms:

Article One; The District Court has proceeded without consent to conduct business with the Legal Fiction JAMES JONES, James JONES, Mr J Jones, and all similar constructs of the Person Registered with Births Deaths and Marriages and having a Birth Date of 8th January 1951. Such action is unlawful. 

Article Two; The District Court refuses to acknowledge the true identity of the Man James as identified in a Statutory Declaration made to the DEPARTMENT OF INTERNAL AFFAIRS who is an agent of the CROWN CORPORATION OF NEW ZEALAND INCORPORATED. The District Court obstructs the filing of documents which do not admit joinder Man to the Legal Fiction. Such action is unlawful. 

Remedy Sought 

There is a current matter to come before the District Court and the Applicant, because of previous District Court obstruction, seeks the High Court to issue an Injunction: Ordering the District Court to acknowledge that the living body of the Man, as indicated in the Statutory Declaration of Identity is the Man James and not the Legal Fiction Person JAMES JONES, date of birth 8th January 1951, and That the District Court, having been denied jurisdiction must obtain written consent from James in order to conduct any business with the Legal Fiction JAMES JONES, James JONES, J Jones, Mr J Jones, and all other similar constructs having the name Jones and with a birth date of 8th January 1951. 

[5] From the other documents that have been filed by James, it appears that his claim is based on the assertion that he is not subject to the laws of New Zealand. In an affidavit filed on 22 February 2022, James stated, among other things:

Jurisdiction follows a natural hierarchy. The order of jurisdiction is logical; Nature/God > Man/[Wo]Man > State/Government > Corporate/Person. Man lives in the jurisdiction of the Common Law, which is de jure “in Law”. A lesser creation cannot contradict the higher / creator. Corporations are the construction of Man and cannot rule over Man unless Man consents. Consent makes the law... ... There is no decree that the Office of Parliament can pass that can lawfully force One to consent to be subject to the rules of that Corporation, to argue otherwise would be a legal nonsense. I James, withdrew my consent to be governed by the CROWN on 17th January 2014 by way of a Claim of Right served on the Crown and perfected by my actions and a Default Notice creating an Estoppel by Silence, on the 28th January 2014.

[6] James alleges also that “Governments can never be Sovereign as they are Legal Fictions”, and that he has “never given informed, written consent to be governed or agreed to be Surety for the debt of a corporation”. 

Analysis 

[7] It appears that James has made his claim to the High Court with the goal of invalidating criminal proceedings taken against him in the District Court or various actions taken by the Police. 

[8] James’ statement of claim is made in terms commonly used by the ‘Sovereign Citizen’ movement. Such claims are made in the Courts not infrequently, and have been the subject of previous judicial commentary both in New Zealand and in other common law jurisdictions. They are often made in the context of applications for habeas corpus. 

[9] The Court of Appeal has recently described the Sovereign Citizen movement as:

...an ideology that first emerged in the United States in the 1970s. [The] core belief, for present purposes, is that [Sovereign Citizens are] not subject to the jurisdiction of the State (including legislation enacted by Parliament or decisions made by the courts). This belief is based (at least in part) on the dual persona theory — the proposition that individuals have two personas, one of flesh and blood and the other a separate legal or “corporate” personality that is subject to the jurisdiction of the State. Followers of the Sovereign Citizen movement believe that it is possible to dissociate themselves from their legal or corporate persona, and hence free themselves from the jurisdiction of the State. [They believe they have] successfully done this and, as a result, the State has no authority over [them].

[10] James’ statement of claim seeks to draw a distinction between “the Legal Fiction JAMES JONES”, “James JONES”, “J Jones”, “Mr J Jones”, and “all other similar constructs having the name Jones”. Such a practise is a hallmark of the behaviour described in the Canadian judgment Meads v Meads as being adopted by “Organised Pseudolegal Commercial Argument litigants”. In that case, the Alberta Associate Chief Justice identified three factors that unify such litigants, being:

(a) a characteristic set of variable strategies that they employ; (b) specific but irrelevant formalities and language which they appear to believe are or portray as significant; (c) the sources from which their ideas and materials originate; and (d) that they will only honour obligations created pursuant to law if they feel like it. 

[11] Through these practises, and the idea of the “dual persona” theory, adherents to the Sovereign Citizen movement attempt to argue that the laws and territorial authority of the Crown do not apply to them. James’ claim falls squarely within the types of claims brought by “Organised Pseudolegal Commercial Argument litigants”. 

[12] I adopt the Court of Appeal’s conclusions in Warahi to the effect that such arguments are untenable and without legal foundation. Acts of Parliament are binding on all persons within the geographical territory of New Zealand, and are upheld by the Courts. It is plainly true that “No person within New Zealand is able to dissociate themselves from their “legal persona” so as to remove themselves from the jurisdiction of the courts”. 

[13] Further, as stated by Ellis J: ...it will inevitably be an abuse of process for a litigant to attempt to employ [Organised Pseudolegal Commercial Argument] concepts in seeking to avoid or defeat any state, regulatory, contract, family or other obligations recognised by law. 

Result 

[14] I am satisfied that James’ claims for an injunction against the Whanganui District Court are based on Organised Pseudolegal Commercial Arguments, and that they have no legal foundation.

04 June 2023

Vulnerability

'Reasoning From the Body: Universal Vulnerability and Social Justice' by Martha Albertson Fineman in Chris Dietz, Michell Travis and Michael Thomson (eds), A Jurisprudence of the Body (Palgrave Macmillan, 2020) states 

This chapter offers a clear roadmap for the application of vulnerability theory. It engages with the ontological body in order to highlight the universality of vulnerability and its implications for law and policy. Embodied vulnerability and the inevitable social dependency it generates provide a clear and unambiguous challenge to [neo]liberal understandings of a legal subjectivity grounded in liberty, autonomy and rationality, as well as rendering incomprehensible models of the restrained state. In the construction of social institutions and relationships, the state is both inherently a primary social actor and the primary instrument of accomplishing social justice. Law and policy represent the ways in which state responsibility is defined and manifested in society. Placing vulnerability and dependency at the center of governance demonstrates the necessity for law and policy that are responsive to the realities of the human condition. Understanding the realities of vulnerability and dependency also reveals the there is an inherent and inevitable inequality of position in many social arrangements to which law must respond. Vulnerability theory helps to formulate the questions that can help us achieve justice through the law and policy that inevitably shapes the contours of these institutions and relationships. 

31 May 2023

Reasonable Security

'Locking Down 'Reasonable' Cybersecurity Duty' by Charlotte Tschider in Yale Law & Policy Review comments 

Following a data breach or other cyberattack, the concept of “reasonable” duty, broadly construed, is essential to a plaintiff’s potential causes of action, such as negligence, negligence per se, breach of contract, breach of fiduciary duty, and any number of statutory claims. The impact of an organization’s discretionary choices, such as whether to take specific security steps for a system, may result in potential risk to an individual, another organization, or the organization itself. Although organizations regularly engage in cybersecurity risk analysis, they may not understand what practices will be considered reasonable in a court of law and are therefore unable to anticipate downstream legal issues. Attorneys are likewise unable to confidently advise their clients on how to best avoid liability. This Article examines, in detail, potential sources for reasonably defining duty, and how organizations and attorneys might consider legal duty through the lens of cybersecurity risk management. 

Specifically, I call for a two-part cybersecurity duty analytic model: static, or objective duty informed by industry practices, and dynamic, or subjective duty informed by situational risk. For some doctrinal areas, this may work primarily as an analytic model, while for others, such as negligence, this could be formalized as a test. By offering a model for analyzing what cybersecurity duty ought to be, organizations can adequately understand how potential legal risk might be evaluated in order to implement practices that protect would-be plaintiffs and avoid liability. Moreover, courts can use this model to determine whether organizations have made decisions that avoid real, foreseeable risk to the plaintiff. Indeed, amidst an increasing frequency and diversity of cyberliability claims, legal analysis informed by actual risk analysis ensures that reasonable, rather than perfect, cybersecurity practices can be developed precedentially over time.