one page assignment on ITIL with zero plagiarism
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1IntrotoLaw2021.pdf
ISSM 561 - Introduction to Law and Ethics
Martin Kratz, QC © 2021
1
Agenda Introductions
Using Meet
Overview of the course and evaluation
Role of private security in society
Ethics vs. Law
Introduction to law
Types of Law
How to read a judge’s decision
The Court System
The Constitution
The Charter of Rights and Freedoms
2
Introductions Martin Kratz, B.Sc., J.D., Q.C.
Long history in computer security and law
I also teach at Osgoode Hall Law School where I am codirector of the IP LLM program
Experience acting on IRTs, cyber security, breach response
I was a founder and first director of (ISC)2, and a Fellow of CIPS
You …
Background education or work?
But first let us talk about Meet 3
Meet Meet is a basic video conference tool
I can post and work through the presentation materials.
You can ask questions using your microphones.
I cannot see chat messages when presenting slides.
Just be patient. Meet does not have a queue system.
I ask you to keep your microphones muted during the lectures so we do not get distracted with background noise.
4
Meet When I switch from speaking (where you can see me) to presentation mode, my screen is filled with the slides.
You have copies of the slides from Moodle.
When you ask questions I cannot see you.
That makes things artificial but we just have to work through that.
I do encourage you to ask questions.
It makes the class better for all students and I have calculated question time into the length of the lectures.
5
Your introductions
Your introductions are a way for us to practice communicating using Meet.
I am advised that there are many students enrolled in the course.
Please introduce who you are
Please tell me your background education or work experience
6
Overview of Course and Evaluation Resources:
1. Course outline
2. Text – Canada’s Internet Law, 2013
This text is optional - the Course covers additional material unique for computer security
It is a good professional reference and gives deeper discussion on many issues we will discuss
3. Handouts, Readings – uploaded to Moodle
4. Lectures - slides uploaded to Moodle
7
Overview of Course and Evaluation
Asynchronous assignments
Several readings and/or resources are posted on Moodle
These help you to get the most out of the lecture
Lecture time is adjusted for the asynchronous work
8
Learning Objectives
This course provides an introduction for the non-legally trained student of how the Canadian system of law works
contrasts and reviews and contrasts ethical and legal obligations, and
introduces key areas of law for the information system security professional or manager.
9
Learning Objectives Specific course learning objectives include to introduce students to:
differences between law and ethics and to review the ethical codes of the leading IT professional organization in Canada, Canadian Information Processing Society (CIPS), and of the world’s leading computer security certification service, the International Information System Security Certification Consortium (ISC)2.
law and the constitutional division of powers in Canada, and the court system in Canada.
the Charter of Rights and Freedoms and its interaction with law especially in respect of search and seizure from electronic devices.
contract law generally as well as in an online context.
criminal law and civilian powers of arrest featuring common computer related offenses.
civil litigation and common relief useful in computer security.
selected evidentiary issues and types of proceedings available in Canadian courts including how to work with the police.
mandatory private sector privacy law, the law regulating electronic communications and to intellectual property law and border remedies.
legal principles that govern the preparation for, responding to and management of data breaches, giving notification of a breach and the legal implications of data breaches.
internet law and resolution of internet disputes including domain name conflicts and selected content disputes as well as orders addressing online anonymity.
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Overview of Course and Evaluation Law and Ethics
Constitution and Charter and Rights and Freedoms
Criminal Law - search and seizure issues
Introduction to investigations
Mandatory private sector privacy law
Intellectual property law
Contract law
Anti-spam law
Introduction to data breaches
Canadian data breach litigation
Breach notification
Cyber insurance
Internet disputes
Anonymity and non-litigation remedies
11
Overview of Course
The course covers a lot of content
It is difficult to convey this level of detail with out content heavy slides
We have limited time and a lot to cover …
12
Course Outline
Health and wellness resources are listed in the course outline
Please reach out to the supports if needed
Stress levels can be higher when learning online
If you need help … Concordia has many resources and supports available
13
Class Lectures We begin at the course’s assigned time
The Google Meet link is posted on the course page on Moodle
Lectures will take about a 10 minute break each hour
Meal break? Mental break?
Duration of the lectures will depend on your questions and include credit for planned asynchronous work
Expect to have some guest lectures
14
Overview of Course and Evaluation Final evaluation - Final paper - 70% of course grade
3 interim exams - each worth 10%
Given out in some classes - each due two days later
Focus on the key subjects covered in the course
Expect several short answer questions, multiple choice and some longer topics to address
I will have emphasized most issues
Final exam questions are released last class
Final exam is due one week later
Attendance in class and studying the resources are the best way to do well
15
Academic Honesty The interim and final exams are to be your own work.
Academic honesty is fundamental to the academic enterprise.
Students are urged to familiarize themselves with Section 9.2.5 of the Calendar.
Note that cases of academic dishonesty (e.g., cheating, plagiarism, collusion, unauthorized submission for credit of previously graded work, and misrepresentation) are serious offences.
Penalties for academic dishonesty range from a grade of zero on the work in question to expulsion.
16
Academic Honesty
Concordia takes academic honesty very seriously.
The dean has asked each professor to ask each student to review and sign an Academic Honesty Pledge.
Please download from Moodle.
Please post to Moodle once signed.
Due January 14, 2021.
17
Evaluation The final exam papers are evaluated based on:
Demonstrated understanding
You demonstrate an understanding of the topic and applicable law
Argument
You answer the question which includes your perspective (argument)
Writing
Your writing is coherent, legible and you cite your sources
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Evaluation Demonstrated understanding - about 23% of weight (16 points)
Foundational legal principles, materials discussed in the class
Basic legal concepts involved are correctly used
Argument - 57% of weight (40 points of weight)
Explanation of the topic, development of the thesis and conclusion
Thoroughness of discussion, acknowledgement / treatment of counter arguments
Use of research to support
Writing - 20 % of weight (14 points)
Appropriateness, form, use of footnotes, citation of sources
Grammar, structure and flow, style
19
Preparation tips Plan your answer well
Check the deadline
Give yourself time to show your research and writing efforts
Cite your sources
Comply with academic honesty rules
See notes in the Course Outline
Submit your work only
Work toward the deadline
20
Deadlines
3 Interim exams (10% each) issued on Moodle
Answers are due 5 pm two days later
You deliver answers electronically on Moodle
Prefer Word documents
21
Final Exam
Will circulate final exam in the last class
Final paper is due one week later by 5 pm
Deliver answers electronically on Moodle
Prefer Word format
22
Final Grade
Final grade is relative to a student’s position in the class
The numbers in Moodle are an important part of the analysis but Moodle is not set up for relative grading
Final grades are not based on the raw scores
Ultimately, the Dean authorizes the final grades
Final grades are approved after the last class in the term
23
Role of Private Security in Society
24
Role of Private Security
Long history of private security
Role of the public police is more recent
Look at trends, regulation of private security industry
Key issues – role vis-à-vis
the public
The public police
25
Role of Private Security Law Reform Commission 'In Search of Security: The Roles of Public Police and Private Agencies’
Risk society – growing desire for security, orderliness and control – management of risk
Dominant theme in US and British culture
Per capita police per 100,000 population
Increases to about 1975
Flat to about 1990
Continuing decline since about 1990
26
Role of Private Security Trends
Policing mass spaces – West Edmonton Mall
Average population of over 60,000 per day – 200,000 on Saturdays
Security service gets about 40,000 calls for service each year
Despite a drop in crime, the demand for protection has increased significantly over the past few years as a result of:
(a) strong media coverage of criminal acts,
(b) growing feeling of insecurity among the public, and
(c) high insurance premiums
27
Role of Private Security Trends
September 11, 2001 - Concerns about terrorist attacks have heightened feelings of insecurity and, as a result, fueled renewed demand for protection
Gradual transfer of responsibilities in the field of protection over the past 20 years
government budget constraints, private security firms have increased market share in protection services
ratio of security guards and related occupations to police officers
about 1.2 in the early 1990s
approximately 1.5 since 2003
28
Role of Private Security Types of roles in privacy security
Forensic accountants
Security managers
Computer security
Insurance investigators
Security guards airport security guard armoured car guard bodyguard bouncer commissionaire crossing guard gate attendant night watchman pre-boarding security guard security guard
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Role of Private Security
Census data –
Number of security guards and related occupations increased sharply following the events of September 11, 2001 and the increased only slightly since
Investigation and security services accounted for approximately 56% of security guards and related occupations
Women held approximately 25% of all positions in this occupational group
30
Role of Private Security
Private policing is omnipresent
Policing large tracts of land
Malls, housing developments
Gated communities
Addressing frauds and economic crimes Forensic accountants Insurance investigators Banks Computer security
31
Role of Private Security
Public and private roles also blur
Private contributions to policing Community can purchase RCMP assistance Pay duty – police performing private security functions Formal and informal cooperation arrangements
Private security work in conjunction with police
32
Regulation of Private Security
Provincial regulation – Security Services and Investigators Act (Alberta)
Act, regulations and policy establish licensing and reporting requirements uniform standards code of conduct training programs, and a public complaints process
for the security, investigation and locksmith industries in Alberta
33
Regulation of Private Security Section 2(1) No person may, without a licence to do so, for remuneration, investigate, conduct surveillance activities or seek or obtain information about
(a) crimes, offences, contraventions of enactments or misconduct, or allegations of crimes, offences, contraventions of enactments or misconduct,
(b) the cause of an accident, incident, property damage, personal injury or damage to premises,
(c) the activity, conduct, character or reputation of a person,
(d) the location of property, or
(e) the whereabouts of a person.
34
Regulation of Private Security Exemptions from Licensing regulation – Section 10
Police
Lawyers
Persons acting in an investigative capacity under banking and similar legislation
Insurance adjusters
Credit rating agencies, banks, credit union employees
Armored car service
Voluntary security guards
Hotel staff responsible for keys
Many other specific exemptions
35
Accountability measures Police
Political and legal accountability
Criminal law
Internal investigative agencies
Police Commissions
Arms length from political masters
Complaints processes
36
Accountability measures Private Security
Market place accountability
Legal accountability
Provincial regulations
Criminal law
Contract law
Labour/employment law
37
Trends in Computer Security
38
Trends in Private Security
Trend is towards increasing professionalism of the private security function
Industry wide standards and training
Certifications serve as evidence of knowledge and skill
Desirable by employers
Rise of professional associations
39
Trends in Computer Security
(ISC)2 Cybersecurity Workforce Study 2019
cyber security professionals are “generally satisfied in their careers and optimistic about their futures”
Strong work place demand identified …
561,000 cyber security professionals needed in North America
over 4 million needed worldwide
40
Trends in Computer Security
CSE Cyber Security Career Guide 2021
Issued by the Canadian Centre for Cyber Security
Cyber security jobs growing by 7% each year
Estimate 3.5 Million vacant positions worldwide in 2021
Well paid - Average salary in 2020 $97,000
Seeking diversity
41
Trends in Computer Security
CSE Cyber Security Career Guide 2021
Identify paths for success
Encourage certification and identify certifications that employers value
Identify Canadian cyber security programs across Canada
Concordia University of Edmonton
Identify that CSE is recruiting
42
Private Security
Questions?
43
Means to Regulate Behaviour
44
Means of Control
Professor Lawrence Lessig describes four modalities of control of human behaviour:
Law
Social norms
Markets
Architecture
45
Means of Control Your studies cover each aspect of these controls
Law (top-down regulation)
This course – binding enforcement
Focus on the role of the state
Use of coercive power to enforce compliance
Key issues:
Who makes the law?
How do we interpret the law?
46
Means of Control Your studies cover each aspect of these controls
Social norms –
Social behaviours taught at home, in school, in society generally
Experience as a source of confidence in a service provider,
Role of Professional Associations, setting minimum standards
This course looks at some of these questions
Key issues
Who makes the rules in the codes of ethics
How to enforce the codes
47
Means of Control Your studies cover each aspect of these controls
Markets –
Markets if allowed to operate provide signals to the participants
Contracts are a way of setting up how a market will work
Contract parties can make their own rules
Courts will enforce the terms of the agreement
This course looks at contract law
48
Means of Control Your studies cover each aspect of these controls
Architecture –
Your other courses would address such issues as
Access controls
Technical security measures
Physical security measures
Barriers accomplish enforcement (but are ultimately backed up by Law)
49
Means of Control
For each means of control the law plays an enforcement role
Next questions
How are ethical codes different from the law?
How are they enforced?
50
Means of Control
Questions?
51
Ethics vs. Law
52
Ethics vs. Law Law
Top down regulation
Sets minimum standards of conduct or behaviour
Generally applies broadly
Enforced by the Courts
Ethics
Set standards specific for a profession or sector or industry – social norms
minimum standards of conduct or behaviour expected of members of the group
Applies to members of the group who adopt the rules
Enforced by the governing body – often as a contractual matter
53
Example of ethics in Information Processing Computer Ethics Institute “Ten Commandments of Computer Ethics”
Thou shalt not use a computer to harm other people
Thou shalt not interfere with other people’s work
Thou shalt not snoop around in other people’s computer files.
Thou shalt not use a computer to steal.
Thou shalt not use a computer to bear false witness.
Thou shalt not copy or use proprietary software for which you have not paid.
54
Example of ethics in Information Processing Computer Ethics Institute “Ten Commandments of Computer Ethics” continued …
Thou shalt not use other people’s resources without authorization or proper compensation.
Thou shalt not appropriate other people’s intellectual output.
Thou shalt think about the social consequences of the program you are writing or the system you are designing.
Thou shalt always use a computer in ways that ensure consideration and respect for your fellow humans.
Encyclopedia of Business and Finance, 2nd Ed., 2007 Thomson Gale
55
Ethics in a Professional Context
56
The Information Processing Profession
57
Ethics in Information Processing Canadian Information Processing Society (CIPS)
Canada's professional association for information systems professionals
Registered as professional associations in many provinces
Hold exclusive rights to certain designations – ISP, etc.
Professionals can identify themselves as holders of the designation
Typically to hold the designation a person must qualify:
Must address a body of knowledge
Agree to comply with the Code of Ethics 58
CIPS Code of Ethics The Office of the Privacy Commissioner of Canada supports the work of IT professionals in setting a Code of Ethics for their profession. The leadership demonstrated by CIPS is to be applauded and emulated. By incorporating privacy protection as a core element of its ethical framework, CIPS not only demonstrates that IT professionals are an integral part of the value chain of their organizations by ensuring that systems and the information assets they contain are protected against abuse and misuse; CIPS also affirms that privacy protection is both an ethical imperative as well as a set of design principles that are essential to the proper functioning of our organizations and institutions." Jennifer Stoddart Privacy Commissioner of Canada
CIPS Code of Ethics CIPS Code of Ethics
Newly revised for 2018
The code sets out obligations that are additional to other (legal) obligations
Key imperatives
Protect the Public Interest and Privacy of Information
Avoid Conflicts of Interest
Take Professional Responsibility
Contribute to the IT Profession 60
Protect the Public Interest CIPS Members must
Carry out work or study with primary regard for public interest (including health, security, safety, privacy, protection of the environment and social responsibility) and in accordance with regulatory requirements and legislation.
Report to the relevant authority problems that might result in serious damage to persons, organizations, property or the economy.
Work in accordance with legitimate rights of 3rd parties, and conduct all activities with due regard for ownership, property rights and privacy.
Treat all employer/client business information as confidential, respect copyrights, trade secrets, privacy and terms of license agreements.
61
Protect the Privacy of Information CIPS Members must
Give credit where it is due on all reports, papers and ownership of code and designs.
Understand and comply with obligations imposed on them under applicable privacy legislation, including The Personal Information Protection and Electronic Documents Act (PIPEDA), and any amendments to or successor legislation.
Not discriminate in any manner based on issues such as race, religion, sex, sexual orientation, age, disability, national origin, or social class.
Behave as directed regarding any other issue protected by legislation.
Exemplify the values of equality, tolerance, and respect for others. 62
Avoid Conflicts of Interest CIPS members must
Maintain objective integrity and independence in professional judgment.
Not place personal interests or those of colleagues above interests of employers/clients, nor place any interests above those of the public. (If this hierarchy causes conflict you have an ethical dilemma).
Make efforts to notify all parties involved and to make full disclosure to the relevant authority if any conflict might be seen to occur by an independent 3rd party.
Not enter into reciprocal relationships with third parties who stand to gain as a result of their work.
63
Take professional responsibility CIPS members must
Take responsibility for results.
Achieve and maintain professional competency in their area(s) of practice, as described in the CIPS Common Body of Knowledge.
Demonstrate knowledge required to undertake work, be compliant with relevant legislation and accepted standards of practice.
Tell the truth and avoid misrepresentation. Be honest and candid. Have integrity.
64
Take professional responsibility CIPS members must … continued …
Be fair to competing vendors.
Balance quality and cost in a very transparent way. Quality includes meeting the requirements of the client AND meeting their need for timeliness.
Follow policies and procedures of client including procurement. Follow client’s code of business conduct, and any contract requirements.
65
Contribute to the IT Profession CIPS members must
Act in a manner that upholds the reputation of CIPS and the IT profession in general, in relationships with anyone with whom they work.
Support professional development for current and new CIPS members, for potential members, colleagues and subordinates.
Work to enhance the public's understanding of information systems and their current capabilities and limitations.
Make all reasonable efforts to counter misinformation that could bring the IT profession or CIPS into disrepute.
Be collegial. Maintain respectful workplace relationships.
Make reasonable efforts to voluntarily participate in activities such as development of standards of practice and advancements in bodies of knowledge.
66
Process of ethical decision making Steps to take
Identify the key ethical issues in the situation
Identify what ethical imperatives are relevant to the situation
Determine what standards of conduct are of major importance to the situation and begin to implement some possible actions by:
generating alternatives and examining the risks and benefits of each
securing additional information
consulting with colleagues, the CIPS Registrar, or with other appropriate sources
examining the probable outcomes of various courses of action
Take a moment to reflect. (Include in the decision making process the feelings and intuitions evoked by the ethical challenges. You might decide that you would feel uncomfortable with certain alternatives even if the action can be justified)
Determine action plan
Take action (follow a concrete action plan, evaluate the plan, and be prepared to correct any negative consequences that might occur from the action taken).
67
Enforcment of the Code CIPS Code of Ethics
Enforcement
Complaint can be submitted to CIPS
Must specify the breach
CIPS investigates
Notification of accused - Accused has an opportunity to respond
Seek rebuttal or answer
Hearing by CIPS
Decision
Appeal to CIPS Executive Committees
68
CIPS Code of Ethics
Questions?
69
Ethics in the Computer Security Profession
70
Ethics in Computer Security In a field such as computer security clients and the public need a high level of trust in the computer security professionals
They get this trust through many things such as:
consistent, honest and competent work
knowing that the professionals are current with the risk environment
knowing that the professionals are trained and skilled
Credentials and certifications are a way to communicate many of these messages
Customers look for credentials and certifications as a source of trust and confidence
71
Ethics in Computer Security (ISC)2 Code of ethics
(ISC)2 certifies computer security professionals
World's largest computer security certification organization
(ISC)2 owns and administer designations such as CISSP, etc.
CISSP - Certified Information Systems Security Professional
CCSP - Certified Cloud Security Professional
CCFP - Certified Cyber Forensics Professional
HCISPP - HealthCare Information Security and Privacy Practitioner
To hold the certification an individual must qualify –
Address need for both knowledge & experience for certifications
Agree to be bound by code of ethics
72
(ISC)2 Code of Ethics
(ISC)2 Code of ethics
The safety and welfare of society and the common good, duty to our principals, and to each other, requires that we adhere, and be seen to adhere, to the highest ethical standards of behavior.
Therefore, strict adherence to this Code is a condition of certification.
73
(ISC)2 Code of Ethics
… strict adherence to this Code is a condition of certification.
Protect society, the common good, necessary public trust and confidence, and the infrastructure.
Act honorably, honestly, justly, responsibly, and legally.
Provide diligent and competent service to principals.
Advance and protect the profession.
74
Enforcement (ISC)2 Code of ethics
Enforcement
Complaint to ethics committee
Must specify breach of code of ethics
Writing, sworn affidavit
Accused has an opportunity to respond
Assessment of the facts by (ISC)2
Findings and recommendations to the board
Notification of decision
Disciplinary action
75
Ethical Codes
Employers see value in ethical codes
A way to demonstrate mastery of the specialized skills
Encourages professional behaviour by the individual
Demonstrates due diligence
76
Reminder - ethics v. law
Law
Top down regulation
Sets minimum standards of conduct or behaviour
Generally applies broadly for everyone
Enforced by the Courts
77
Reminder - ethics v. law Ethics
Set standards specific for a profession or group – social norms
minimum standards of conduct or behaviour expected of members of the group
Applies to members of the group who adopt the rules
Enforced by the governing body – often as a contractual connection
The balance of our course is focused on law
78
Ethical Codes
Questions?
79
Introduction to Law
80
What is Law?
Definition of “law” is affected by many things:
History,
Theory,
Legal system in place, and
Social realities
81
What is Law? Philosophical theories of law
Legal Positivism
Law is what the ruler says
Natural law
Law is what God says it is
Legal realism
Law is what the Courts say it is / will enforce
82
Theories of Law
Legal Positivism
Law is what the ruler says
Enforced by brute force
No moral basis to law
Example – secret laws, social engineering
83
Theories of Law
Natural law
Law is what God says it is
Based on a moral code
Historical view – e.g. religious codes / Nuremberg trials
e.g. Basis of “intent” requirement in criminal law
84
Theories of Law
Legal realism
Law is what the Courts say it is
Reflect social moral values
A rule is only law if the Courts will enforce it
e.g. Morgentaler criminal prosecutions
85
Legal Realism Morgentaler v. The Queen, [1976] 1 S.C.R. 616 decision of the Supreme Court where Dr. Morgentaler unsuccessfully challenged the prohibition of abortion in Canada under the Criminal Code. The Court found the abortion law was appropriately passed by Parliament under the constitution.
1982 Charter of Rights and Freedoms in enacted
R v Morgentaler, [1988] 1 SCR 30 decision of the Supreme Court which held that the abortion provision in the Criminal Code was unconstitutional because it violated woman’s rights under section 7 of the Charter of Rights and Freedoms to security of the person.
R v Morgentaler[1] 1993, decision of the Supreme Court invalidating a provincial attempt to regulate abortions in Canada.
86
Legal Realism This moment in Canadian history wa significant as it pertains to a controversial social debate over the morality of abortion in Canada and the rights of Canadian women.
By tracing the contentious legal history of the abortion discussion and its culmination in the R. v. Morgentaler decision, you can see the evolving public attitude shifting.
The R. v. Morgentaler ruling signified a shift in Canadian law about women’s rights and set a new legal precedent which expanded women’s rights to choose.
For our course … it is an example of the Courts reflecting that shift and changing the direction of what law will be enforced.
87
What is Law?
For our course …
Law is the body of rules that can be enforced by the Courts or other governmental agencies
88
Legal Theories
Questions?
89
Understanding categories in law
90
Understanding categories of law
Substantive law
The rules that govern behaviour and set limits on conduct
This is the primary focus of this course
E.g. the specific rules under criminal law, copyright law, contract law
91
Understanding categories of law Procedural law
The procedure and processes by which rights and obligations are enforced
Applicable times frames to take steps, forms that must be used
How to commence a claim against a person
How to defend yourself against a claim
How to register a copyright or trademark
Etc.
This course does not cover procedural issues in detail
92
Understanding categories of law
Public law
These are the rules that regulate our relationship with state
e.g. Criminal law – relationship of the state and individuals
93
Understanding categories of law
Private law
These are the rules that regulate personal, social and business relationships
Relationships between individuals
Intellectual Property law
Privacy law
Contract law
94
The Legal System
95
Types of Legal Systems
Common law
Civilian
96
Common Law The common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.
described as “common law” since it was "common" to all the king's courts across England
The British Empire spread the common law legal system to its colonies
many of these colonies retain the common law system
These "common law systems" are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system
Examples the common law is used in Great Britain, Commonwealth countries, US
About a third of the world use some common law
Judge made law – "discovered" by judges – look to customs & traditions
97
Common Law The defining characteristic of “common law” is precedent.
In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts.
If a similar dispute has been decided in the past, the court is usually bound to follow the reasoning used in the prior decision (stare decisis).
This leads to certainty and predictability
If a court finds that the current dispute is fundamentally distinct from previous cases and legislative statutes are either silent or ambiguous on the question, judges have the authority and the duty to resolve the issue.
98
Common Law
Difficult to research
Flexible in dealing with new situations or problems - e.g. internet
Judges inherently have the ability to change the law
99
Civil Law
Efforts to harmonize the law
Seek to provide certainty by having the law all recorded and be able to be read by all
Long history of rulers efforts to record the law
100
Recording the Law The Code of Hammurab is a Babylonian code of law of ancient Mesopotamia, from about 1754 BC.
It is one of the oldest deciphered writings of significant length in the world.
Babylonian king, Hammurabi, enacted the code.
A partial copy exists on a 2.25-metre-tall (7.5 ft) stone stele.
It consists of 282 laws.
half of the code deals with matters of contract
other provisions set the terms of a transaction
a third of the code addresses issues concerning household and family relationships
Updating the Law The Code of Justinian is part of the Corpus Juris Civilis
This was a codification of Roman law ordered early in the 6th century AD by Justinian I.
Much of the law had contradictions and obsolete provisions over time.
Justinian was an Eastern Roman emperor in Constantinople.
Civil Code Civil Law
E.g. Roman law under Justinian codified
Updated and modified by Napoleon
Used in Europe and many developing countries
Quebec's legal system is based on the French civil code
Easy to research
Slow to react to change
103
Sources of Law Common law
The precedent making decisions of the courts
Became rigid in early years – based on a positive law theory
Law of Equity
Decisions made by courts of chancery
Courts seek justice – based on a natural law theory
Common law and equity now merged in Canada’s courts
104
Sources of Law Judges decisions make up the common law
Precedent system seeks to resolve disputes the same way
This provides certainty … in investments, relationships, conduct
Law can evolve both where judges “find” a new decision or by action of the legislature
A law passed by Parliament or a legislature is a Statute
Those laws are created by the legislature
They can amend or change judge made law
They can summarize or modify the common law e.g. criminal code
105
Common Law
Questions?
106
Reading a case
107
Reading a case
Decisions of a court can be difficult to read
They are written in legal language
Important elements are:
Date of the decision
Level of the court
Who are the parties?
108
Reading a case Parties
Plaintiff or Appellant
Defendant or Respondent
Citation
Where to locate the decision
Which Court
Date
Her Majesty The Queen
v.
Cole
2012 SCC 53
Reading a case
Which judges were involved?
Where did the case come from?
Keywords - used for research purposes
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell and Moldaver JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law — Charter of Rights — Search and seizure — Information contained on computer — Pornographic pictures of child found on employer- issued work computer — Whether accused had reason- able expectation of privacy in employer-issued work computer — Whether warrantless search and seizure of laptop computer and disc containing Internet files breached accused’s rights under s. 8 of Charter — If so, whether evidence ought to be excluded pursuant to s. 24(2) of Charter.
Reading a case
Headnote - a summary of the decision
Not a formal part of the law
A good way to get the idea of what the decision was
Note the majority decision
Note if there is a dissenting opinion
The accused, a high-school teacher, was charged with possession of child pornography and unauthorized use of a computer. He was permitted to use his work-issued laptop computer for incidental personal purposes which he did. While performing maintenance activities, a technician found on the accused’s laptop a hidden folder containing nude and partially nude photographs of an underage female student. The technician notified the principal, and copied the photographs to a compact disc. The principal seized the laptop, and school board technicians copied the temporary Internet files onto a second disc. The laptop and both discs were handed over to the police, who without a warrant reviewed their contents and then created a mirror image of the hard drive for forensic purposes. The trial judge excluded all of the computer material pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms. The summary conviction appeal court reversed the deci- sion, finding that there was no s. 8 breach. The Court of Appeal for Ontario set aside that decision and excluded the disc containing the temporary Internet files, the laptop and the mirror image of its hard drive. The disc containing the photographs of the student was found to be legally obtained and therefore admissible. As the trial judge had wrongly excluded this evidence, the Court of Appeal ordered a new trial.
Held (Abella J. dissenting): The appeal should be allowed. The exclusionary order of the Court of Appeal is set aside and the order of a new trial is affirmed.
Per McLachlin C.J., and LeBel, Fish, Rothstein, Cromwell and Moldaver JJ.: Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate, and touching on the user’s biographical core. Canadians may therefore reasonably expect privacy in the information contained on these computers, at least where personal use is permitted or reasonably expected. Ownership of property is a rele- vant consideration, but is not determinative. Workplace policies are also not determinative of a person’s reasonable expectation of privacy. Whatever the policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation. While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely. A reasonable though diminished expectation of privacy is nonetheless a reasonable ex- pectation of privacy, protected by s. 8 of the Charter. Accordingly, it is subject to state intrusion only under the authority of a reasonable law. …
Reading a case
The majority decision
Numbered paragraphs help quickly identify location of key parts of the decision.
Usually sets out the facts
What happened in prior court(s)
The legal principles involved
How the law is applied to the facts
The decision
The judgment of McLachlin C.J. and LeBel, Fish, Rothstein, Cromwell and Moldaver JJ. was delivered by
Fish J. —
I
[1] The Court left no doubt in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, that Canadians may reasonably expect privacy in the information contained on their own personal computers. In my view, the same applies to information on work computers, at least where personal use is permitted or reasonably expected.
[2] Computers that are reasonably used for per- sonal purposes — whether found in the work-place or the home — contain information that is meaningful, intimate, and touching on the user’s biographical core. Vis- à-vis the state, everyone in Canada is constitutionally entitled to expect pri- vacy in personal information of this kind.
[3] While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely: The nature of the information at stake exposes the likes, interests, thoughts, activities, ideas, and searches for information of the individual user.
[4] Such was the case here. Mr. Cole, a high-school teacher, was permitted to use his work- issued laptop computer for incidental personal purposes. He did. He browsed the Internet and stored personal information on his hard drive.
Reading a case Try to understand what the decision was
What facts were relevant?
What policy was relevant?
Were any statutory or prior decisions relevant?
Did the court choose not to follow an earlier decision? Why?
What was the conclusion?
Obiter dicta - comments of the court not necessary for the decision.
Not binding
Gives an idea of what the Court is thinking about this side situation 113
The Law in Canada
114
The Law in Canada Canada is a constitutional monarchy
We recognize Her Majesty Elizabeth II, Queen of Canada, as the head of state.
This role is now largely symbolic with the Queen having no real juridical power
The Queen, is represented in Canada
federally by the Governor-General
provincially by Lieutenant-Governors
Canada enacts laws in the name of the Queen
115
The Law in Canada Canada inherited certain conventions and traditions from Great Britain
Democratic parliamentary system
Rule of law
Principles established in the Magna Carta and the English Bill of Rights
Important to note that Canada's constitutional structure is essentially different from Britain
Britain – unitary system – moving to a federal system – Scotland, Wales, N. Ireland
Canada – federal system - of 10 provinces, 3 territories – each with own legislative powers
116
The Law in Canada The Constitution
Need a written constitution in a federal system to delineate powers among the elements of governing power
Examples - Canada, US, Germany
British North America Act, 1867
Creation of a federal government and various provincial governments and various court systems
Renamed Constitution Act, 1867 in 1982
Division of powers between federal and provincial governments
117
Division of Legislative Powers Exclusive Federal government legislative powers(s. 91)
the regulation of trade and commerce
unemployment insurance
postal service
militia, military and naval service, and defence
navigation and shipping
banking
patents and copyright
marriage and divorce
118
Division of Legislative Powers Exclusive Provincial government legislative powers(s. 92)
direct taxation within the province to raise revenue for provincial purposes
prisons (but not penitentiaries)
the incorporation of companies with provincial objects
the solemnization of marriage in the province
property and civil rights in the province
generally all matters of a merely local or private nature in the province
119
Division of Legislative Powers
s. 91, Federal government has a residual legislative power
Exclusive power to "make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces."
120
Division of Legislative Powers Generally speaking, things not mentioned as belonging to the provincial legislatures comes under the powers of the Federal government
opposite to the same situation in the United States
E.g. Things that did not exist in 1867
Aerospace industry
Nuclear industry
Telecommunications
Internet 121
Division of Legislative Powers
Parliament and the provincial legislatures both have power over agriculture and immigration, and over certain aspects of natural resources
but if their laws conflict, the national law prevails
Parliament and the provincial legislatures both have power over old age, disability and survivors’ pensions
but if their laws conflict, the provincial power prevails 122
Parliament Constitution Act, 1867 sets out the structure of governing bodies
The federal Parliament is modeled after the British Parliament, and has two “chambers”:
the House of Commons comprising elected politicians, and
the Senate comprising (generally) unelected Senators, appointed by the Prime Minister
Either chamber can initiate bills,
the Senate cannot initiate financial legislation
Provincially – only a single chamber – the Legislature
Same for Territories
123
The Law in Canada
Questions?
124
The Court System
125
The Court System Constitution Act, 1867 sets out the structure of the courts
Three different court systems :
Superior courts – E.g. Alberta Queen's Bench
judges are appointed by the federal government
generally have unlimited jurisdiction
Provincial courts
judges are appointed by the provincial government
generally only have the powers given to them by provincial statute
Federal courts
judges are appointed by the federal government
jurisdiction limited to matters involving federal law, including intellectual property disputes, maritime law and claims against the government
126
The Court System
Three levels of Courts
Trial Court
Appeals Court
Supreme Court
127
The Court System Trial Court
Federal or Provincial
Sitting with a single judge who hears live witnesses
Key role is to determine the facts in order to apply the applicable law to a dispute
May have a jury
Generally role of the jury is to find the facts
Judge instructs the jury on the applicable law
If no jury, trial judge finds the facts and applies the law
128
The Court System Appeals Court
Federal or Provincial (superior jurisdiction)
Usually sitting with 3 judges who hear the appeal
Decision by a majority of the judges
Usually no oral evidence (live witnesses under oath)
Rely on a written trial record
General bound by the facts found by the trial judge or jury
Generally role is to address errors of law
129
The Court System Supreme Court
Generally sit as either 7 or 9 judges, depending on the matter being heard
Majority decision - may be several decisions
No general right to go to the Supreme Court
Court decides which cases to hear
Reconcile the law
Where an appeal had a strong dissenting opinion
Where different provincial appeal decisions conflict
Where a matter or national concern
Hears many Charter of Rights and Freedoms cases especially in criminal law cases
130
The Court System
Questions?
131
The Charter of Rights and Freedoms
132
The Law in Canada 1982, government took steps to "repatriate" Canada’s constitution
Also as part of the constitution, Canada introduced the Charter of Rights and Freedoms
Constitutional document that guarantees certain basic rights and freedoms,
The basic rights and freedoms are subject only "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" (s. 1)
Balancing of interests
The equality provisions in the Charter of Rights and Freedoms (s. 15) came into force in 1985
133
Charter of Rights and Freedoms
The effect of the Charter is to limit the law making power of the Federal and Provincial governments
In favour of the individual’s rights and freedoms
134
Charter of Rights and Freedoms Fundamental Freedoms – Section 2
Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion
No state religion
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other means of communication,
(c) freedom of peaceful assembly; and
Peaceful protests
(d) freedom of association.
Unions, political organizations
135
Charter of Rights and Freedoms Democratic Rights – Sections 3 – 5
Every citizen of Canada Right to vote in an election of members of House of Commons or legislative assembly
No House of Commons or legislative assembly to continue beyond 5 years without election
Exception in case of war, invasion or insurrection – if not opposed by more than 1/3
Sitting of Parliament and each Legislature at least once every 12 months
136
Charter of Rights and Freedoms Mobility Rights – Section 6
Every citizen of Canada has the right to enter, remain in, and leave Canada
Every citizen and permanent resident of Canada has the right:
to move to and take up residence in any province; and
to pursue the gaining of livelihood in any province
These rights are subject to:
laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of present or previous residence,
laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services
137
Charter of Rights and Freedoms
Legal Rights – Sections 7 – 14
S. 7 - Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice
S. 8 - Everyone has the right to be secure against unreasonable search or seizure
S. 9 - Everyone has the right not to be arbitrarily detained or imprisoned
138
Charter of Rights and Freedoms
Legal Rights – Section 10
Everyone has the right on arrest or detention
to be informed promptly of the reason therefor;
to retain and instruct counsel without delay and to be informed of that right; and
to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
139
Charter of Rights and Freedoms Legal Rights – Section 11
Any person charged with an offence has the right
to be informed without unreasonable delay of the specific offence;
to be tried within a reasonable time;
not to be compelled to be a witness in a proceedings against that person in respect of the offence;
to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
not to be denied reasonable bail without cause; 140
Charter of Rights and Freedoms Legal Rights – Section 11
Any person charged with an offence has the right …(continued)
except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or International law or was criminal according to the general principles of law recognized by the community of nations;
if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
if found guilty of the offence and if punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment
141
Charter of Rights and Freedoms Legal Rights
S. 12 - Everyone has the right not to be subjected to any cruel or unusual treatment or punishment
S. 13 - A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence
S. 14 - A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter
142
Charter of Rights and Freedoms
Equality Rights – Section 15
Every individual is equal before the law and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability
Can have laws to ameliorate the conditions of disadvantaged individuals or groups
143
Charter of Rights and Freedoms Enforcement – Section 24
S. 24(1) - Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances
E.g. a law can be declared invalid
S. 24(2) - Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute
144
Charter of Rights and Freedoms Notwithstanding provision – Section 33
Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or section 7 to 15 of this Charter
Limited to fundamental freedoms, legal rights, equality rights
Not democratic rights or mobility rights
Such a declaration ceases to have effect after five years
But can be reinstated for a further five year period
145
Charter of Rights and Freedoms
None of the Charter rights or freedoms are absolute
Limits on those rights and freedoms are subject to:
such reasonable limits
prescribed by law
as can be demonstrably justified in a free and democratic society" (s. 1)
146
Charter of Rights and Freedoms
Questions?
147
