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The Honest But Mistaken Belief Episode


How did legal podcasters do their work. Before search engines I just I just don't seem to have figured out of simple courts very very quickly there rob. I could be wrong but I don't think that podcasters existed before the ability to Google and so forth. That's a clever point young man Dan welcome to stereo decisive. The podcast felt the law in Canada and the Dr. I am Robert. DNA Council with Shepard Kraemer Fiterman Lemaire in Vancouver. I am joined today moving from West to east by my colleague Oliver Police Blank of polly blank law in Vancouver Oliver. How're you doing on this fine sunny day in Vancouver Uber. I'm doing great. It's beautiful. It is indeed and I'm wondering with a hint of anticipated shot and Freud how the weather is for our colleague to the East Hillary Young who is professor of law at the University of New Brunswick Faculty of Law in Fredericton Richton. How's how's it looking over on your end of the Continent Hillary. It's also beautiful here. If you like a winter wonderland rights so snow lots of well I guess not lots but we've got snow on the ground and we're GonNa snow on the ground. 'til May that is my recollection of how winter looked of my one winter in Fredericton and I don't know whether the modest most on good news for people who love bad news is in my head right yeah yeah I mean. I actually really enjoyed that one winter that I spent there. Even though there was tons of snow it was it seemed like there were many sunny days with with lots of snow which in the final analysis is not too bad when you compare it to the warmer yet comparatively bleaker Vancouver winters well. I grew up in Halifax. which is I guess a bit like Vancouver in that respect and I prefer the winter's here? It's we get colder winters warmer summers and you don't mom all this wet slushy windy damn in between stuff yeah in any event those meteorological niceties aside on today's. Today's show we will be talking about the decision of the European Court of Justice to the effect that the taste of food cannot be copyrighted righted moving to the Canadian context we will be talking about the controversy recently surrounding revelations that Statistics Canada had had been planning to collect the banking data of hundreds of thousands of Canadians households and finally we we will be talking about the decision of the Supreme Court of Canada to overturn a decision by the Law Society of Ontario Disciplining Securities Lawyer Joseph if Gra for his alleged incivility in the famous BREX insider trading prosecution some years ago okay so oh moving to our first topic the recent decision of the European Court of Justice to the effect that that the taste of food is something that is too subjective and variable in order to meet the requirements for copyright protection and in this particular case it came to the European Court of Justice from Holland yes and and in that particular case this was this was of course a dispute about cheese and the dispute involved involved a spreadable cream cheese on the one hand and herb dip that was called HEX and costs which was produced by a company called live. Oh La and the Levada argued that another cheese Vita Viva ncaas infringed its copyright and initially the Dutch courts actually issued a cease order against the defendant which was a company by the name of smelter I think for sure butchering during the pronunciation of all of this but they ordered that they cease the production and sale of its cheese because advisor violated the copyright of Levinas Heck's in costs but this was ultimately overturned by the European Court of Justice on the basis that the European copyright directive if which is intended to harmonize the law of copyright across the European Union did not permit the copyright of anything on the basis of its taste and in order for something to be classified as a work under the relevant law it had to be shown that two things were true one that it was an original intellectual creation and to that there was an expression of that creation that makes it identifiable with sufficient precision and objectivity and here is where the problem arose in this case because the court found that the taste of food product cannot be identified in a fight with sufficient precision and objectivity and that it taste basically is something that has identified on the basis of taste sensations and experiences which are subjective and variable and the court noted you know people of Different Ages with different food preferences and consumption habits will taste the same mm-hmm food very very differently in that will influence the taste or the experience of the taster and so they found that a food product can't be classified as a work and is not eligible for Copyright Protection Ralph kiner recipe be copyrighted a recipe yeah instead of to taste but saying coke secret formula could that I believe will. I guess if you're thinking about just like the publication of a recipe I think that the the the the words on the page governing the recipe might be copy writable if to the extent that they involve expression but of course if you could essentially you can't just you can't copyright facts you can copyright expression. This is the idea expression dichotomy so if for recipe is an idea then it cannot be copyrighted but to the extent that you include in the recipe expression of some kind of creativity in terms of the actual words you use to describe the recipe I I would anticipate that that would be copyrighted but if the the the person who is making the new publication simply puts in fact the idea. This is how you make the following recipe. I wouldn't think that that is subject to copyright copy right and what about patent patent a recipe. I'm not sure I suspect you're getting closer to something that could be because then. It's the right the process yeah yeah. What do you think I'm curious. Hillary what you think as a as a doctor of linguistics about the idea that our our language I mean I suppose it's not just a question of language. There's also the question of just like subjective experience but in terms of this are it seems is though are part of this decision is the idea that our language is insufficiently precise to describe the taste of food food with such that it could be objectively understood and copyrighted. What what do you think about that idea. I don't really understand it. I mean I think it's true that we don't have very you know objective descriptions for the way things taste but I think the obvious analogy here is to music that great where people's subjective appreciation of music varies quite a bit as well and we still can describe it in in terms of rhythm and acoustic features and presumably you can do the same with recipes in terms of its organic composition so I I'm not sh- I don't see where the analogy falls down well. I mean you do have the idea that there. There's the language of notes in in you know like wine tasting for example. I mean I should say parenthetically. I've always found the whole world of of wine tasting and the idea that there is this like science to tasting wine including the detection of all of these very obscure supposed- flavors that are there like forest floor and a new tennis ball can and I've heard all kinds of really weird shared notes that are supposedly present on your in expensive wine but I do not detect them. They all just taste like some variation of wine to me so I the I think it's not so much in our inability to describe with sufficient precision. It's really more the fact that we all experience it. I think on an order of magnitude differently than we do musical notes you know. I think that there is sufficient. Consensus around play three musical notes people will hear three musical notes that are distinct If it's a cord they'll here. It's a cord so I I think that music doc is sort of superficially comparable to taste but but I think it falls down in terms of we don't actually have like the same kind of objective experience of of food that we do with respect to music makes a certain amount of sense so the I guess the idea would would be that we all hear music the same way we just disagree as to the value of it or the pleasurable ness of it whereas we don't even taste taste food the same way at least so they say right. It's I know there are some examples that are really obvious like gown. CILANTRO will actually taste like soap to people people with particular gene but other than sort of weird genetic things like that. I wonder to what extent that's true and to what extent it's just that we really like different things that that we differ in whether we like things right so that's the question. Do we actually taste things differently does does it actually tastes different or do we just in like different things so. I'm not sure whether the analogy works or doesn't because I don't know enough about whether we all taste things the same way and just disagree but whether it's it's almost like a a combination of a neurological and sociological anthropological question you know that that how how do we experience taste from one person to the next and my my sense is that you know like your whole. Tasting apparatus is something that physically changes throughout your life. Although I'm sure you're hearing gets better and worse as you get older. Kids have many many more taste buds than older people which which is part of the reason why older people always you know we'll we'll tend to like add more and more salt to food to try and bring out flavors that they can't seem to detect it as much anymore and it's also true that if you when you go on a plane the air pressure change effects. It's our ability to taste food and it diminishes our capacity to taste flavor. which is part of why the reason is that it tastes yeah but I mean these ideas to me suggests that there may be something that is qualitatively different about taste than and then then the experience of sound though of course years you know change over time as well and get worse the the capacity to here so yeah. I. I'm not sure this is a tough one. In terms of in principle whether or not a taste ought to be or even could who'd practically copyrighted and and I suspect that if it were practically possible it would have happened already. Obviously it is in the interests of of companies that produce food and drink to be able to assert that they have the exclusive right to make that particular expression so they have all the incentive to make that argument and the fact that we have never gone there yet to me suggests that it just can't be done as a matter of are like you know limited physiology in that regard and I believe the same considerations are at play with respect to smells as they are with respect to tastes so so it's just kind of interesting that human creations are differently copy writable on the basis of the sense that we use to experience them them and of course neither taste and smell the if you actually just look at the Copyright Act in Canada it does not appear on its face that these are matters that can be copyrighted right though there may be some wiggle room in the text of the act that allows those to be considered copyrighted works but I have found no evidence that anyone has ever ever tried to do that in Canada yet maybe because it just seems so kind of counterintuitive and an inherently wrong well on the implications seem really extreme as well right so so that means I. I can't make my particular enchilada recipe anymore if it happens to be copyrighted by somebody else like like how would you how would that work. Yeah I mean it might be analogous to you know it would be technically copyright infringement but the you know could be built into the act that there is a private copying exception that allows you to for example copying music for your own personal use and as songs. It's for a noncommercial use so I it seems that that similar rule could be employed to allow people to cook at home however they wish it. The distinction happens when you seek to make something commercially available that copies of someone else's taste so it is not inherently unworkable. I don't think other than the question of can we all agree on what stuff tastes like and the fact that you have as judges generally speaking old people whose senses of taste are diminished by the ravages of time time then it seems like that's potentially problematic as well so having traversed this terrain of the senses we will now move on to our next topic which is the the the furore and public outcry that arose it was when it was revealed that stats Canada had been planning to collect hundreds of thousands of Canadians customer banking records for the purposes of its own data collection. Let's talk about what is what is this decision. And what are its implications Hillary. Why don't you get started on that yeah so this isn't really a question about the law but I thought it was really interesting because because I find people's perceptions of what's acceptable privacy invasion and what's an unacceptable privacy invasion to be really interesting so what happened here. Is stats can sent letters to do the nine major. I believe it's nine major banks in Canada. As well does the credit card companies and said you will give us all of the transactional banking data so every bill. That's paid every credit card. Kurt purchase every debit from your bank account. You will give us this information from five hundred thousand Canadians Canadian somehow they call this a pilot project. I find it hard to imagine what the full on version would be of this but in any event so there as it turns out entirely authorized to do this so essentially there's a provision in the statistics act which says stats can is entitled titled to the to Be Given information by just about any government organization or corporation in Canada as long as it's for the purposes press' that stats can collect information to begin with Iraq to end can only be disclosed to certain people and there are lots of rules that apply to what happens to that information once you have it but even just the fact that they're entitled to that information. I found interesting because we're so used to PIP at our the Privacy Act or other privacy laws that are based on the concepts of disclosure and consent and so there's no obviously requirement of of providing information to the person who's information that it is let alone requesting their consent there and so not surprisingly Canadians responded swiftly an an and fiercely against this and I have a quote from Carolyn Stewart Olsen who's a conservative senator and she said this data data gathering plan is quote almost Tallah -Tarian in its scope and quote and suggested many Canadians will begin to think we're living in an Orwellian nightmare nightmare. So you know the the there's been a range of responses but most people are really against us as well. Let me just before we maybe discuss it some more talk about why they want. This information stats can provides a whole lot of information that the government researchers used to do to you said a whole lot of policy so for example the inflation rate. We need to figure out what the inflation rate is so we can adjust out lending rates so we can increase the amounts of benefits all sorts of really basic decisions rely on having information about consumer spending and I guess what they normally do is among other things send surveys to people the the main one. I think that relates to this kind of data is the survey of household spending which I understand get sent to randomly to twenty twenty thousand Canadians each year so again. I don't know why if normally the status gathered from twenty thousand we need five hundred thousand people's banking information but in any event and the problem Alam is is it requires people to answer questions about their spending and either because it's too time consuming or more likely I think because they actually don't know they're not getting good data from these voluntary surveys and starts can is concerned that without good quality data we're not. GonNa know are accurate. We're not gonNA have accurate numbers for things like the consumer price index and rates of inflation all those other important things so they they say that that they need to get online banking data and I think that makes sense to to. I think that makes a certain amount of sense. It doesn't mean there aren't privacy privacy concerns. one of the things I found really interesting is the contrast with the debate around the long form census right there was so people people may recall a couple of years ago. The government decided to scrap the long form census citing privacy concerns and then the Trudeau government brought it back and then everyone you know probably not fair to say everyone just people in my circles got all excited and jumped up and down and celebrate it on facebook when they were selected to fill out the long form census but the idea being that we would have better data and that good policy and good research could be done with this and the long form census is not voluntary right you you get sent the short one or the long one and you have to fill it out so it's not a consent in a model there either either and yet people are obviously viewing this situation quite differently than the the long form census and of course there's slots of very private information in the long form senses but even if you think banking information is more private. I mean that's already takes all of our income tax return information information which has a whole lot of sensitive financial information so I'm you know I'm not necessarily against changing the rules so that there's some sort of notice sore or making really sure that they have the safeguards in place to to protect this data but there's a little bit of a disconnect to me here in terms of the the response to this and I think part of it just has to do with the really bungled way in which it was carried out right. They sent these letters to the bank. They didn't have any sort of public information campaigns. They didn't explain till after the fact why this is needed. was all rather heavy handed. Banking information is such a funny thing because because on the one hand it is so private there's I would guess in many married couples where they don't know what's going on in each other's banks and there's very little that you could look at that would give you more accurate sense of somebody's lifestyle their priorities them having a look at their banking information mation. I know as a lawyer. Sometimes you see it. It becomes relevant in a case and you can't help but marvel at the degree to which you are having a real peak inside this person's life seeing every transaction. That's they've done for lasted a while so it's it's immensely personally but we also. I think on a very intuitive level feel it's not private amongst the financial industry and that's why they're. Swiss bank accounts right. I mean if you wanted privacy. You gotta go somewhere else because we all intuitively suitably know that our bank accounts in Canada are not being kept private from certain institutions themselves and I think most people have the bake aac sense that the Sierra can look into your bank accounts if they if they have reason to do so so the the notion that you would do something that's public good. You have better data for better research by having a look at the information. That's sort of quasi private but an aggregate level. You know it shouldn't really seem that upsetting as I can see that wise dads can with think that's an okay idea but the bungled nature just as Hillary said is terrible and I do think that I'm personally I used to be much more of the mindset of like I don't really have as deep privacy concerns as some on people but the degree of targeting advertising. I'm seeing these days directed me personally and the the degree to which the you know the companies he's another actors are able to process these giant data sets on an individualized and get to you personally is off pudding and so I you know I think it extremely tone-deaf in this day and age to to do something like this in such a ham handed way. Hey what do you think rob you know. I think that the the response to this decision the public response is more a reflection perhaps of that broader uh-huh -iety that people have about how their personal information is being harvested and shared and used by large large powerful entities without their knowledge for purposes that may not be in their own best interests rather than a specific nick objection to stats can getting more and better information for the purposes of the the reports that they produce and I think Hillary's comparison Harrison with the long form census debate in which the you know the the the I think the general position of the public was opposition to the elimination of the long form census kind of May. Maybe reflects that in part but really you know a lot of it might just very very well have to do with with just messaging and a failure on the part of stats can the federal government to to anticipate anticipate the the reaction that the public would have to learning about this program without having some kind of foundation for it set out so people kind kind of can get it and and understand what what is this for what actually happens or the controls that are in place because I understand that you know the information that they get is supposed to be completely anonymous so it's not like they know you know on day. X Oliver Police Blank purchased some very embarrassing item that I will leave your imagination the nation to fill in the place but instead it'll say you know person x did that and and that will be of use in the aggregate and will the actual information about what Oliver personally did. We'll never be disclosed or at least that's. That's I think the intent of the process but so perhaps if they they had rolled it out a little bit better explaining all of that. Maybe we wouldn't be talking about that right now. Necessarily and I think there's some really interesting. Questions ends about to what extent these data can be protected once again has them so. I've heard some experts experts and I don't know anything about the technology here but some experts have said you know the banks way better security not surprisingly than starts. What's candidates that they're they're. They're cyber. Security budget is bigger than or is about the same mistakes cans entire budget but then even even assuming blooming there were no actual breaches people have talked about when you get these really detailed data you can kind of reverse verse engineer identification out of it increasingly witch so even if you have taken all the steps and even if you have data security purity it's not entirely clear how you manage to keep this anonymous data so that it cannot be dee and optimized and I read a few things just talking about some attempts that major corporations have made to try to prevent prevent. DNA But there's some interesting technological cyber security issues there as well all right that note we can move on and to our final topic of discussion today which is the decision of the Supreme Court of Canada back in June to overturn a decision by the Law Society of Ontario to discipline the securities lawyer Joseph grow for his alleged incivility in a very well known and publicized lengthy insider trading prosecution involving the bricks gold mine. I think it was a gold mine in any event Oliver. Why don't you talk to us about this particular case and and you know some of its implications that that you have sort of been thinking about recently yeah. Thanks so much rob so as you said this is a a a decision by the Supreme Court of Canada where Mr Gra is very well known securities litigator Ontario and he was involved in in defending principal reacts one of the individuals who was alleged to have been involved in this scheme and there's a lengthy trial L. M. Mr Roy obtained an acquittal from charges that were brought by the end -Tario Securities Commission but in the scope of this extremely long trial rile seems animosity on both sides that they've got to high levels Worcester Royat consistently did was accused used prosecutors of committing and abusive process and did so increasing sarcastic and repeated tones and did so on the basis of a misunderstanding of the law that he was wrong on the law as to what he was saying was an abusive process though he he did believe it genuinely he thought he was right about what the law thought he was right yeah which is interesting and that was the point of the main sort of Split on the Supreme Name Court of Canada as what to do somebody who vigorously upholds mistaken legal principle and does so in a way that accuses accuses another lawyer of misconduct and so Mr Roya gets goes before the Law Society and they initiated this on their own one motion there it wasn't as if there had been a complaint to them that they jumped on but rather the reasons for judgment of in fact is odd certa scenario where this trial this securities fraud trial occurred in two stages after the first stage the Antero Securities Commission broader judicial review application seeking to remove the judge from the first half of the trial while on the basis that he had shown a reasonable apprehension of bias in not raining in Mr Gra which I'd never heard of you've heard of that in particular sequence now I had not heard of that yeah very odd and so he brings this they bring this and and in the course of the reasons there's comments made about Mr Gross has conduct in the inappropriateness of it goes to the Ontario Court of Appeal again then Mr Grimes has conduct is called problematic but the judge is not on is not removed and goes back to stage two of the trial and and by all accounts Mr grows fine during that during that stage so thing ends law society picks it up they slap him with a two hundred fifty thousand thousand dollar costs award in two months suspension at practice so I mean to me a a staggering penalty for effectively actively incivility in the practice of law it gets appealed to the Internal Law Society Appeal Mechanism. They bring down the penalty a little bit two hundred thousand in one month. Montauk was where they landed then judicial review -Tario quarter appeal finally Supreme Court in Canada and what I found so interesting was the way the majority by just a small Davor posited a tension between zealous advocacy and civility ability saying effectively that there can be a point where if we are too stringent in demanding civility the in punishing those who seem to transgress against our rules of civility that we could hamper the ability of council to engage in zealous this advocacy and I found that that tension to be to be interesting and just a small Davor in sort of acquitted did interesting passage on why be civil. I think any gets at the the problem here because he says look why be civil yeah well. You can prejudice a client's. 'cause you know you can if you're being in civil. You can preclude reasonable settlements reasonable agreements agreements being come to because everybody gets their hackles up. He says it can be distracting. You know you can get preoccupied with aside show instead of the substance substance and it can adversely impact participants in the trial maybe hard to testify if you're dealing with these lawyers yelling at each other the whole time time and it can erode the legitimacy of the results but he says don't sacrifice resolute advocacy in order to promote civility ability and that kind of gets at the the point which is it can be also a tool to be in civil and each of these points that he he sort of raises does suggest well. Maybe you want to start or you know. Maybe you want to rattle. Although a council the other side who you think will get rattled. You can get under their skin and you want to you want to cause them to become. Tom Distracted from the from the main issues and so it's it's interesting because I think when he was talking about resolute advocacy I think he was saying look. We can't have people being afraid to do everything for their client that they possibly can because that's their duty and interestingly okay so he comes down and says well. You need to have do this. In good faith and you need to have a reasonable basis for any allegation you're gonNA make about the propriety of the other side's conduct and in this case he said Look Mr Roy was acting in good faith and and he had a reasonable basis on the facts for what he was saying what's happening but what he was saying happening. Simply wasn't improper. What would it was was. He thought that the prosecution had to lead all relevant evidence whether exculpatory income Tori rather than just lead in the evidence that that would tend to support a conviction and then he also thought he would be allowed to put any evidence to a prosecution witness whether or not they knew anything about the document or improperly properly entering the evidence etc etc etc and so the court says we'll look if if you had been right about the law all those things happened and so you're allowed to raise a stink about got it notwithstanding the fact you were wrong about the law so to me. This is a fascinating case because you know it does say look for we like civility but zealous advocacy and the ability to freely defend your client's interest is a equal competing concerned earned that is going to you know in some cases carry the day but I just wanted to open it up and see if Hillary arrived at any sort of thoughts. It's on on this tension and how civility you know ought to constrain council. Ought you ever have to not do what you think his best for your client at the in order to further civility or should your clients interests prepared. They already aren't right. I mean lawyers are officers of the court and have to you know they can't lie. They can't make things up. They can't introduce false evidence so they're already limits on what they can do you to assist their clients so I don't think it's sort of nonsensical to talk about. Civility may be being one of those things but that I it sounds like you know rarely will civility rise to the level of importance that those other things like not leading and not knowingly leading false evidence that that civility doesn't rise to that level importance such that that it could justify doing in less than your best for your client. I mean personally. I've always found that civil lawyers you know do better more flies with honey that sort sort of thing absolutely. I agree. That's not really the points right so no well. I don't know so I mean I'll say this. My reviews on this question are very much colored by my what was it you know fifteen years experience with the Department of Justice as a litigator and it was in that context that you know I my my approach to litigation was shaped and early on one of the things that I discovered was was as a as a crown lawyer. Even in non criminal cases I did exclusively almost exclusively non-criminal matters there was at least within the Department of Justice an informal to a certain extent but very real constraint culturally and in some policies all CS about how you can go about arguing a case in terms of civility and the tone that is appropriate for the crown to take doc in making their arguments and so but there isn't of course any sense that the that AH justice lawyer or a crown lawyer it should it'd be any less zealous in the defense of their clients interests but there is this sense that there's always this overriding concern about civility ability you know and I had a number of draft fact Dems over the years especially in my early years of practice where I had used you know F- colorful language edge accusing the other side's arguments accusing other side of having arguments that were without grossly without merit and words to that effect act and I was chastised. I think rightly so by more Senior Council that had reviewed my work and and I and I eventually began into just reflexively toned down the language in my in my submissions and generally speaking think about you know what is the long-term effect of the the the perception of the crown in terms of you know on the part of the court as being a sort of fair and dependable party that that comes before the court has an officer of the court and of course that's not something necessarily that a private of it that that that a lawyer representing a private litigant has to operate those are a different set of circumstances but what all of that but I still saw extremely persuasive and effective advocacy that was very successful over the years by justice lawyers who argued invariably in a very measured balanced way often in the face of very heated invective from the other side that was is often very unfair and I can tell you it is very difficult especially during the course of a long trial when opposing counsel just repeatedly heatedly accuses you of all kinds of different impropriety just because you represent the crown and that appears to be more or less what happened in Goya case and I can certainly sympathize with the crown lawyer having to deal with that sort of day in day out but it wasn't actually really you know the the although they I don't know that I would have necessarily gone to the step of seeking an interim order removing the judge for for not reining in opposing counsel who repeatedly makes what I what what are believed to be incorrect accusations but I certainly understand the the sentiment so the short of it is. I really don't think it necessarily has to be a choice. I think that you can zealously you know represent your clients interests without crossing the line into incivility and and honestly I'm not sure if it really is a legitimate litigation tactic nick to just try and rattle your opponent in terms of the lawyer through making some kind of an objection or accusation in that that you know is is dubious at best like if that's the primary motive. I'm not sure that that's necessarily wise. Though of course this happens all all the time. There's one little side issue. It's Kinda interesting in this case. I decided might get your take on it. Rob Duty are admitted law expertise is the there's a concurrent reason written by justice coattail. WHO's alone on this issue and the question is a standard of review now of the? Oh Yes oh yes it is of the Law Society's decision with respect to the misconduct allegation and the argument is well. If it's conduct that occurs in a courtroom should a non-judicial body have the ability to manage. What is what isn't said in a courtroom or should the ultimate word unappy laugh with the judges? I E refined. I'm with the law society weighing in being a tribunal of first instance here but we're not going to defer to their legal understanding standing of the necessities of professional conduct because ultimately what happens in courtrooms vis-a-vis lawyers conduct is a matter that falls within judicial independence and judges ought to have the last say on a correctness standard of any question that arises in that context yeah. I don't don't really understand that argument that justice a articulated. I mean I understand but what what is what would it reflects more than anything is just coach as creativity in coming up with interesting ways to get to the correctness standard into to review administrative decisions without having to show any deference to the decision makers she you know. I have to do a bit of log rolling. I've got a forthcoming peace in the U. of T. Journal in which I've have tracked did sort of an empirical study over the last couple of years looking at all of the voting patterns patterns of all the individual judges on the Supreme Court of Canada in administrative law cases over the last couple of years and and one of the things I found was that Madam Adam Justice coattail is in a class of her own when it comes to overturning decisions of administrative tribunals and also coming up with reasons to not have to show any difference to the decisions of administrative decision makers like the Law Society in this case so it doesn't surprise me that that she came up with that argument placed in the broader context of her jurisprudence over the last couple of years in administrative law and I don't I agree with her dis- her analysis necessarily because I don't think that there's something very I mean if anyone can regulate the conduct of lawyers in and out of courtrooms. It's the Law Society and and the Law Society is itself composed of lawyers. I don't see why they their decision would lack the you know the the necessary wait to to be to justify some kind of difference being afforded to them on judicial review but that's just Sta. That's a that's a bit of a deeper dive. The night intended when you asked me that question sorry. I struck a nerve and this is you know this. This is a a an issue that is very live in the minds of Administrative Law Aficionados because we've got an upcoming case to be decided by the supreme in court of Canada in the next couple of weeks which is actually a trilogy of cases where they're going to completely review and potentially overhaul the law on the the standard of review in Administrative Law all right I will suggest that we move on to our regularly scheduled segment obiter dicta in which we each get to make non-binding recommendations that may or may not be legal in nature uh-huh Okay Hillary. What is your obiter for this week so so I just saw on my twitter feed that the Supreme Court is granted leave in a case about a woman who got a ticket for not holding onto the escalator handrail in Montreal in in Lavelle. I guess it was so I saw that headline. I didn't really understand. Would it messes. There's a pictogram which I guess is just a fancy word for a drying showing that you are meant to hold onto the handrail and she wasn't holding onto the handrail and so a police officer told her to hold onto the handrail and she basically weekly said No. That's not a law. I don't have to and he gave her ticket. A hundred dollar ticket for disobeying the Pictogram and then another three hundred twenty dollar ticket for having obstructed the work of an inspector so some sort of obstruction of justice sort of charge I guess so she was acquitted of these two infractions and so it says she was acquitted in Montreal Municipal Court and not normally would have been the end of that. I gas except that she filed a forty thousand dollar lawsuit against the city of La Jolla and the officer who who charged here in the first place I said to her that's it was rejected in two thousand fifteen and again by the court of Appeal and now it's going to go to the Supreme Court of Canada but I I think the the legal issue is really going to be whether someone can resist a police officer who has a a sincere but false belief that that that he's actually enforcing a real law but the whole thing is just kind of bizarre and I'm sure we'll hear more about the legal status Addis of a Pictogram requiring hold onto the hold onto the handrail. I mean it seems pretty clear that that this is not in fact a law because the issue seems to be with you have a an honest belief bit but you're wrong which implies that right. He had no business trying to enforce this as law in the first place Maybe maybe I could jump in Robertson with some odor yeah. Please go next Oliver Yeah. I just really quickly. I described to books. It's almost on the second one that I both I would highly recommend both of them and they both have such wonderful sort of ideas behind signed them that I don't I wouldn't spoil them by sharing the idea and also even if you don't read the book just hearing the idea gives you a little something to think about growth novels and one is called Exit West by motion. Hamid and it's a wonderful novel all about a couple who are in what appears to be Syria during the escalating violence and the militants are overtaking the city and then things take fantastical turn where all of a sudden these doors start appearing in the city that quite literally leads you to other places in the world so you'll step through the door and suddenly you'll be in a manor house in England or you'll be in California or you'll be somewhere else and so the starts happening everywhere and sew migration throughout the world becomes you know unconstrained bull and it just plays with the idea of what would happen in that circumstance circumstance and so beautifully written book that really captured wouldn't like it. I'll tell you wouldn't like President Donald Trump would the migrate seems to have a little thing about that yeah so if Donald Trump is listening. Maybe maybe give it a pass otherwise get too angry or non trump was cancelled not to read a book burn. What's the over under under on books. He's right like I think it's point five and there's a chance he ride his got some his own book which was ghost written yeah. I honestly don't think I'm answering a book I. I don't think he's ready to go that far but I don't think he has. I'll Betcha he hasn't I honestly he's definitely made some funny statements about you know his reading habits that call into question how extensive his literary background is when would he be reading books like just that's what I wanted. When when would he have been sitting down reading books are digression. Yeah so the other book that I'd recommend the power by Naomi Alderman and this is another recent book and again. It's got a fantastical premise that just leads to a fascinating fascinating examination of the society we live in and this one is about sort of a world where women unrealized around age twelve year old women but then it starts to be broader realized that they have the power to send out extremely he's strong electroshock acted like an electric and so you mean we don't the female. I mean try it. If you can let me know 'cause it's pretty cool how this is amazing and so basically women realize they have the same powers electric yield to shock things in their proximity mitty and so the physical dominance of the genders is reversed and now women absolutely convincingly dominate men and it just plays with you know what what happens in that in that world and it's it's a fascinating look at you know a lot of it makes you think. Kabbah assumptions that you had in the basis upon which they may all be rooted in some really it's. It's a vast any re- I would really recommend both books so that's that's my older yeah. I'm a big fan of that kind of fiction. Where there's you know it's essentially a like imagine if and and then it's a premise but then otherwise the world is exactly the same. How would yes humans respond in a similar one. Did you read that underground underground railroad by Colson. Yes that's genre yacking of our amazing. What if it really was rarely. It's yes excellent excellent okay so my odor is about a show that I went to on Friday night of a up and coming musical outfit that stars our host Oliver Police link in it it is a band called record record club and Oliver posted on twitter that he was performing at the Wise Hall in in East Van on Friday along with a couple of other bands and I was very intrigued and I showed up and was treated to very enjoyable show and and I think I've got a I took a surreptitious recording of of some of the music and you know it's not necessarily early great quality but I'll share with our listeners a little bit of it so you can get a flavor of the record clubs musical stylings so have you well it was it was it was fun and one of the things I had a question for you so The you had there were four members of record club and one of them is the gentleman who seemed to mainly play play Bass Guitar and but then sometimes you would play the Bass Oliver in some songs and then what what but this led to was something kind of weird which was that guy kind of didn't really have much to do to contribute during the songs things in which you're playing bass and you were you were ripping it up on the base with what looks to me like you know the you know like Paul McCartney's style of of Bass Guitar but he kind of sort of wandered around sometimes would hit the symbols on the the drum kit or just just tap to drumsticks together in the Mike and I kind of felt bad for that guy he guys. You guys got to find something for that guy to do. When you are ripping it up on the base yeah no that was just a temporary problem basically what it was as we started the band the whole project started because I just wanted something to do to have a musical outlet so I just went by myself to rehearsal space and then one person started coming and then a second person started coming and then we kind of made it three piece band but I wanted to play more guitar and mark wanted too complacent base but he hadn't learned all the songs by the time of this show and so we were left with that difficulty has but I think the next time you'll probably see him. the McCartney base will will be retired and you'll see you'll. Let's see nothing but but the mark base all right that does remind the no I was just GonNa say. There are a lot of opportunities for kind of it making it into a stick. You know their stuff that he could do that would be kind of a kind of interesting yeah. I have seen one of my bands. I quite like it's called the Brian Jonestown massacre and they have a guy named Joel just does Maracas and Shakers Front and center of the stage he he plays every single show next to the main Guy Anton Newcomb. He's definitely the second most recognizable person and he does a tiny bit backing vocals but mostly he just shakes and does rhythms and frankly a lot of that kind of gangly sixties rock and roll that you like so much has got a lot of just that kind one of shaking rhythm instruments they do add something right but yeah we use. It kind of reminds me. You have to the that that old Saturday night live live skit with Will Ferrell Blue Oyster cult and looser call the cowbell degree. There was not enough. You don't have enough songs that feature the Cowbell. You gotTa have more. Cowbell yours remind me of the Everett onion headline ever when he said Oh you happened to come to his friend. Randolph Bruce springsteen has been thinking excuses to avoid checking out his band for fifty but I did not make any such abuses Houston. I came out and I enjoy it. I had a good excuse. Yes you would have also. I didn't know well. On that note. Let us bring the show to a close and we will remind all of our listeners to please review and rate the show. Wherever you get your podcasts that is really important in terms of spreading the word of this podcast foreign wide like it you can also use old fashioned word of mouth to tell other people that you like it and you recommend it. we also have a patriotic count where you can choose to financially support us if you so wish and we are on twitter and facebook and we invite you to reach out and contact us with suggestions questions ends comments rants and any form of expression that you wish and from Hillary young in Fredericton Oliver Poli Blank and and me Robert Deniro in Vancouver. We will thank you for listening and we'll talk again soon mm-hmm.

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