Category Archives: What we’re thinking/reading/doing (IFLS blog)

What’s interesting these days?

Research Confidentiality, in the context of Criminal Law

A judge has blocked Montreal police investigating a brutal killing from gaining access to a university researcher’s taped interview with the alleged killer, a decision that expands researchers’ rights to collect confidential information, much as journalists do.

via Researcher’s taped interview with alleged killer Magnotta off-limits to police – The Globe and Mail.

Thanks to Emma Cunliffe (UBC) for sending this decision from the Quebec Superior Court on a certiorari application to quash a search warrant issued against two criminologists at the Unversity of Ottawa.  The project in question ran from 2004-2008 and was called Sex Work and Intimacy: Escorts and their Clients.   Worth a read, for everyone who does research, or who is still an evidence fanatic.  Wigmore, folks.

 

 

 

Panel Discussion LGBT Rights in India: The Naz Foundation case in the Indian courts Monday, January 27, 12:30 – 2:30 pm

LGBTRightsinIndiaJan27On December 10, 2013, the Indian Supreme Court upheld a colonial-era criminal law which serves to criminalize homosexuality. Join Envisioning Global LGBT Human Rights to discuss the history of the Naz constitutional challenge, the role of the LGBT movement, and the implications of the Naz v Kaushal decision.

 

Panel Discussion

LGBT Rights in India: The Naz Foundation case in the Indian courts

Monday, January 27, 12:30 – 2:30 pm Osgoode Hall Law School (Ignat Kaneff Building), York University  Room 1001, 1st floor. Wheelchair accessible.  For directions, see York University map (building 32) http://maps.info.yorku.ca/keele-campus/

Panelists

Andrew Pinto: partner at Pinto Wray James LLP.

Vivek Divan: Policy Specialist at the United Nations Development Programme’s HIV, Health and Development Group.

Nancy Nicol: Associate Professor in Visual Arts at York University and Principal Investigator of Envisioning Global LGBT Human Rights.

Vijaya Chikermane: Executive Director of ASAAP: Alliance for South Asian AIDS Prevention.

 

Sponsored by: Envisioning Global LGBT Human Rights; Institute for Feminist Legal Studies, Osgoode Hall Law School, York University; Osgoode OUTLaws; South Asian Law Students Association

 

Envisioning Global LGBT Human Rights is a 5-year international research and documentary film project working to advance social justice and equality for LGBT people. Envisioning is a partnership of mutual learning bringing together 31 LGBT organizations based in Africa, India, the Caribbean and Canada to research and document criminalization, resistance and flight from persecution. Envisioning is housed at the Centre for Feminist Research, York University and supported by a Community University Research Alliance Grant, SSHRC.

 

 

 

Panelist Bios:

 

Andrew Pinto is a partner at Pinto Wray James LLP, practicing in the areas of civil litigation, employment and labour, administrative and human rights law.   He has appeared in the Supreme Court of Canada, before all levels of court in Ontario and before numerous administrative tribunals. Andrew has been active in representing LGBT clients throughout his career including in Vriend (SCC decision), Jane Doe (Ont. C.A. – assisted reproduction) and Smitherman (Ont. S.C., same-sex prom date).  He is a former Board Director for the Alliance for South Asian AIDS Prevention (ASAAP). Andrew has taught Administrative Law as an Adjunct Professor at the U of T Faculty of Law.  In 2011-12, Andrew was appointed by the Attorney General of Ontario to review changes made to the Ontario human rights system and author a major report. Andrew is a Governor of the Law Commission of Ontario and a member of the Osgoode South Asia Advisory council. Andrew’s parents were born in Bombay (now Mumbai), India.

 

 

 

Vivek Divan is Policy Specialist on Key Populations & Access to Justice at UNDP’s HIV Practice in New York. His work focuses on providing advisory and technical support on the intersections of law and human rights in the context of key populations affected by HIV. He is a lawyer from Bombay and has worked extensively on issues of LGBT people, law and human rights in India and globally. As Coordinator of Lawyers Collective HIV/AIDS Unit in India (2000-2007) he oversaw and was involved in the legal aid, advocacy, research, capacity-building and legal literacy work of the Unit. In that time he was part of the team that drafted legislation on HIV/AIDS for India and strategized campaigns and lobbying on law and human rights related to sex work and treatment access. He was centrally involved in the public interest litigation related to Section 377 of the Indian Penal Code, including legal research and strategy and leading extensive community mobilization around the case. He served on the Secretariat for the Global Commission on HIV and the Law and as a member of its Technical Advisory Group from 2010-12.
Nancy Nicol is a documentary filmmaker and the Principal Investigator of Envisioning Global LGBT Human Rights, which researches and documents LGBT rights and social movement histories. Nicol teaches video art, documentary and art and activism at York University. Her films include the documentary series From Criminality to Equality, on the history of lesbian and gay rights organizing in Canada.  Nancy is currently working on a documentary shot in India that examines queer organizing and the legal challenge to s. 377 of the Indian Penal Code. The film’s working title is No Easy Road to Freedom, and expected completion is spring 2014.   Nancy is also working on a documentary on the contemporary movement for LGBT rights in Botswana, and on a number of participatory video projects with Envisioning partners in Africa and the Caribbean.

Vijaya Chikermane has been an avid collaborator in the fields of HIV/AIDS, sexual health and gender equity in Toronto and internationally for over ten years. She is Executive Director at the Alliance for South Asian AIDS Prevention (ASAAP), is the Vice Chair of the Board of Directors at Women’s Health in Women’s Hands Community Health Centre and also a Board member at Springtide Resources. Vijaya studied Political Science at the University of Waterloo and completed her MSc in Social Policy at the London School of Economics and Political Science. Vijaya is involved in a number of health and equity related projects in Toronto through her participation with Community Based-Research, project advisory committees and networks. After spending the first 15 years of her life between India and Dubai, Vijaya migrated to Canada with a deep and personal investment in social equity and its intersections with race, class, gender, violence and ability.

 

[Friday January 24] After Bedford v. Canada: What next for regulating sex work in Canada?

Poster_PrintI’m* going to moderate this panel, which takes on some very difficult issues in the wake of an important Supreme Court decision.

After Bedford v. Canada: What next for regulating sex work in Canada?
Come and hear an array of panelists discuss the new legal landscape and the challenges that now face us after the Supreme Court struck down many – but not all – of Canada’s criminal laws about sex work.
What happens when legal doctrine tries to address street realities? Six experts offer different visions of the road ahead.

  • Cheryl Auger Board Member, Maggie’s: The Toronto Sex Worker Action Project
  • Christa Big Canoe Legal Advocacy Director, Aboriginal Legal Services of Toronto
  • Jamie Cameron Professor, Osgoode Hall Law School
  • Brenda Cossman Professor & Director, Mark S. Bonham Centre for Sexual Diversity Studies
  • Katrina Pacey Legal Director, Pivot Legal Society
  • Kim Pate Executive Director, Canadian Association of Elizabeth Fry Societies

Friday, January 24, 2014
3:30 – 5:30 p.m.
University College, Room 179
15 King’s College Circle, University of Toronto

 

Generously supported by the Scotiabank University of Toronto Faculty of Law Lecture and Conference Fund and the Institute for Feminist Legal Studies, Osgoode Hall Law School, York University,
and co-sponsored by the Mark S. Bonham Centre for Sexual Diversity Studies and the Centre for Criminology and Sociolegal Studies, University of Toronto

PDF poster here with map.

 

* sonia lawrence, ifls director

Wired Harassment, part II

dinner with friends just reminded me that one of the reasons I started the last post (Nancy Leong on cyber harassment, & etc). was to provide context for this current Toronto trial. So….

The Crown is currently trying to convict Gregory Elliott on three charges of criminal harassment (and one of breaching a peace bond) based on Twitter activity.   The complainants are three women including Toronto feminist activist Steph Guthrie.  This Toronto Star report from last Thursday notes some of the context, including Guthrie’s online activism against an Ontario man who created a game in which players could beat up and bloody an image of Anita Sarkeesian (media critic who blogs at Feminist Frequency), apprently in reaction to Sarkeesian’s kickstarter campaign to fund a series of videos about sexist tropes in video games.  (You can go to Sarkeesian’s blog to find out more about her experience, or perhaps read this article by Helen Lewis in the New Statesman which reproduces some of the stuff Sarkeesian had to deal with –  including screenshots of the game described above).

 

Here is a link to section 264 (Criminal Harassment) of the Criminal Code of Canada, which, inter alia, requires

  • 264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

  • Marginal note

    (2) The conduct mentioned in subsection (1) consists of

    • (b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

In this case (which may be the first Canadian twitter criminal harassment trial), the police investigator has apparently testified that there were no tweets from the defendant threatening to harm the women (note that is NOT a requirement of the offence), although it has been reported that the women feared for their safety.  Guthrie, at least, has received such threats in the past from others, as this newspaper report from the summer of 2012 (when the Sarkeesian kickstarter campaign and backlash were happening) describes:

“I can be anywhere, anytime, and I can kill you in over seven hundred ways,” one tweet to Guthrie said…, soon to be matched with even cruder and more violent tweets from other users.

Guthrie told the reporter “I don’t think any of these people are going to come to my house and kill me,” ….“The ability to be anonymous on Twitter facilitates really abusive comments.” (here).  She also tweeted this, of her decision to go to the police:

The question of what online harassment “means” is interesting doctrinally and otherwise.  Jim Pagels writes in Slate that Twitter (death) threats should be ignored because they are meaningless.  Hess’s piece takes that on (see below for her response).  Leong notes ignoring harassment can be one possible, starting, strategy but that it will not always work.  Again, please note that criminal harassment does not require either death threats or threats to harm.

Incidentally, news of this Toronto trial comes the same week as two people were convicted under section 127 of the UK Communications Act 2003 of sending menacing tweets to Caroline Criado-Perez, who was campaigning against the removal of Elizabeth Fry from the £10 note.  The Director of Public Prosecutions in the UK has produced a set of guidelines for “Prosecutions involving the use of social media communications”, in case you’re interested, here.

Leong’s ethics complaint raises, for me at least, very different questions than the criminal prosecutions do, but the underlying activities complained of are clearly very similar in their method and tone.  Thinking through which responses can be both appropriate and effective will no doubt continue even as legislators write new law, prosecutors and individuals try to use whatever law they find to address problems they face, and corporations wonder whether they are exposed by providing platforms for these activities.

It is interesting that the threats of violence that we’re hearing about in these cases tend to be – but are not always – threats of (for lack of a better phrase) “stranger violence,” rather than intimate violence (a phrase which describes so much of the physical and sexual violence experienced by women in our society – violence and/or threats perpetrated by men with whom one has or has had an intimate relationship).  I am not drawing a conclusion from that observation or heading in any particular direction, but rather just observing something about the places violence may be.  It feels, sometimes, impossible to be as wary as we are apparently meant to be while having an actual life.   It just cannot take too long before all the warnings to be vigilant fade into a constant background buzz and a generalized heightened awareness (or perhaps anxiety), which roars back to the forefront at particular moments.

Here is what Amanda Hess says in response to the claim that women should ignore online harassment because it does not represent a real threat of physical violence:

But no matter how hard we attempt to ignore it, this type of gendered harassment—and the sheer volume of it—has severe implications for women’s status on the Internet. Threats of rape, death, and stalking can overpower our emotional bandwidth, take up our time, and cost us money through legal fees, online protection services, and missed wages. I’ve spent countless hours over the past four years logging the online activity of one particularly committed cyberstalker, just in case. And as the Internet becomes increasingly central to the human experience, the ability of women to live and work freely online will be shaped, and too often limited, by the technology companies that host these threats, the constellation of local and federal law enforcement officers who investigate them, and the popular commentators who dismiss them—all arenas that remain dominated by men, many of whom have little personal understanding of what women face online every day. (source)

And here is Ally Fogg, quoted in the New Statesman article referenced above, with a pithy statement about where the problem lies:

What you fail to understand is that the use of hate speech, threats and bullying to terrify and intimidate people into silence or away from certain topics is a far bigger threat to free speech than any legal sanction.

Imagine this is not the internet but a public square. One woman stands on a soapbox and expresses an idea. She is instantly surrounded by an army of 5,000 angry people yelling the worst kind of abuse at her in an attempt to shut her up. Yes, there’s a free speech issue there. But not the one you think. (quoted here)

Well – what do you think? A timely paper topic for students I suppose.

[this post does not take on the issue of cyberbullying which is interestingly often given a slightly different treatment, focused more on teen behaviours, nor does it look at the question of “revenge porn” – both clearly connected to the frames provided by Leong (harassment & defamation, ethics) and Hess (criminal harassment, threats).  I see the connection – and i wonder about how the differences are defined – but leave it for another day]

 

As always, happy for cites to good legal academic articles to appear in the comments below or otherwise to me for posting.

 

 

 

Nancy Leong on cyber harassment, & etc.

A few weeks ago I tweeted a link to Prof. Nancy Leong‘s (Denver Sturm Law – her SSRN page here) series about about harassment in cyberspace (at Feminist Law Professors, here), definitely  worth a read.  As part of her reflections on anonymity, identity, and how to understand the responsibility of thread starters, website administrators, etc, she describes her own experience:

Over the course of about fifteen months, this particular harasser commented about me approximately 70 times on at least five different websites, frequently remarking on my physical appearance.  ….. Moreover, he wrote offensive profiles of a dozen other law professors who were–so far as I could tell, with one exception–all women or people of color or both. (from part 4, here)

The ABA site writes about the ethics complaint that Leong eventually filed, here, as does well known law blogger Brian Leiter here (and elsewhere).   Leiter noted Leong’s Feminist Law Professors posts back in November, in this post, where he also references work by Law Prof Mary Anne Franks (Miami) on this subject, and a few days ago he noted that Amanda Hess has written an article in the Pacific Standard:  The Next Civil Rights Issue: Why Women Aren’t Welcome on the Internet –  which references work by Franks and Danielle Citron (Maryland).

The connection between the generalised misogyny of the internet,  and the very specific targeting of particular women is interesting both in terms of understanding why and how they happen, and in terms of how both affect the behaviour of those who are neither harassers nor targets, but are in the same spaces as those who are filling those roles. I highly recommend a look at Leong’s Feminist Law Professors posts – both for those who are at home on the net and those still resisting. Leong’s work also has the advantage, in my view, of bringing an intersectional view to the question of harassment.

In Canada, I have seen a variety of work which looks at cyberbullying or related topics from law school scholars like Jane Bailey (Ottawa) (and the eGirls project researchers as a group, see the website for this SSRHC funded project here), Karen Eltis (Ottawa), A. Wayne MacKay (Dalhousie), and I’m sure many more – if anyone has an up to date bibliography on this issue I would be happy to post it.

 

If you want to read more by Leong, try this article, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream,64 Fla. L. Rev. 305 (2012) here

This review of that article, which takes on interesting questions about conceptual inquiry and its place in educating law students, and this, by Ruthann Robson pointing to another blog post by Stephen Diamond.