Rethinking Online Privacy in Canada: Commentary on Voltage Pictures v. John and Jane Doe

This article examines the Voltage decision, with the view that the bona fide standard safeguards intellectual property rights at the cost of online privacy rights and will proceed in three parts. Part I provides a brief contextualization of the issues. Part II is an analysis of the Voltage decision. Part III examines how the bona fide standard is a relatively low threshold. This article concludes by considering the possibility of shifting to a higher standard for disclosure, as well as a possible solution for the effect that a higher standard could have on copyright owners

Beyond More Accurate Algorithms: Takeaways from \u3cem\u3eMcCleskey\u3c/em\u3e Revisited

A Review of McCleskey v. Kemp. By Mario Barnes, in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 557, 581. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig

A ‘Bad Rap’: R. v. Skeete and the Admissibility of Rap Lyric Evidence

The use of accused-authored rap lyric evidence is no longer rare in Canadian criminal proceedings. Adduced by Crown prosecutors, rap lyrics written or co-written by an accused are increasingly used in criminal trials as evidence of the accused’s intent, knowledge, motive, identity, or confession to the commission of the specific offence charged. The practice is not without controversy.1 The introduction of an accused’s artistic work in the form of rap lyrics at trial engages trial fairness concerns. Without a keen awareness of the social and cultural context that produces rap music, trial actors risk inflating their probative value and underestimating their prejudicial effect. The 2015 Ontario Superior Court of Justice decision in Campbell2 attempted to redress this problem by proposing a specific rule governing the admissibility of rap lyric evidence. Under this rule, rap lyrics would have to have a concrete nexus to the offence charged before those lyrics could be admissible at trial. This rule was not adopted by the Ontario Court of Appeal. In its 2017 Skeete3 decision, the Court instead held that rap lyric evidence is admissible where relevant, material, and not excluded by a specific rule of evidence.4 On this basis, the Court found that an accused-authored rap lyric was admissible and properly before the jury at trial.5 By failing to adopt a rap specific approach to the admissibility of rap lyric evidence, the decision represents a troubling paradigm for the reception of accused-authored rap lyric evidence. This article analyses the current evidentiary threshold for the reception of accused-authored rap lyric evidence.6 It argues that the current threshold jeopardizes trial fairness by allowing the Crown to adduce highly prejudicial rap lyric evidence at trial. It proceeds in three parts: Part I provides a contextualization of the issues. Part II examines the Campbell decision. Part III evaluates how the Skeete decision differs from Campbell, and provides a relatively low admissibility threshold for accused-authored rap lyric evidence. This article concludes by advocating for the adoption of the Campbell approach with modifications

The Democratizing Potential Of Algorithms?

Jurisdictions are increasingly embracing the use of pretrial risk assessment algorithms as a solution to the problem of mass pretrial incarceration. Conversations about the use of pretrial algorithms in legal scholarship have tended to focus on their opacity, determinativeness, reliability, validity, or their (in)ability to reduce high rates of incarceration as well as racial and socioeconomic disparities within the pretrial system. This Article breaks from this tendency, examining these algorithms from a democratization of criminal law perspective. Using this framework, it points out that currently employed algorithms are exclusionary of the viewpoints and values of the racially marginalized communities most impacted by their usage, since these algorithms are often procured, adopted, constructed, and overseen without input from these communities. This state of affairs should caution enthusiasm for the transformative potential of pretrial algorithms since they reinforce and entrench the democratic exclusion that members of these communities already experience in the creation and implementation of the laws and policies shaping pretrial practices. This democratic exclusion, alongside social marginalization, contributes to the difficulties that these communities face in contesting and resisting the political, social, and economic costs that pretrial incarceration has had and continues to have on them. Ultimately, this Article stresses that resolving this democratic exclusion and its racially stratifying effects might be possible but requires shifting power over pretrial algorithms toward these communities. Unfortunately, the actualization of this prescription may be unreconcilable with the aims sought by algorithm reformers, revealing a deep tension between the algorithm project and racial justice efforts

When They Hear Us: Race, Algorithms and The Practice of Criminal Law

We are in the midst of a fraught debate in criminal justice reform circles about the merits of using algorithms. Proponents claim that these algorithms offer an objective path towards substantially lowering high rates of incarceration and racial and socioeconomic disparities without endangering community safety. On the other hand, racial justice scholars argue that these algorithms threaten to entrench racial inequity within the system because they utilize risk factors that correlate with historic racial inequities, and in so doing, reproduce the same racial status quo, but under the guise of scientific objectivity.This symposium keynote address discusses the challenge that the continued proliferation of algorithms poses to the pursuit of racial justice in the criminal justice system. I start from the viewpoint that racial justice scholars are correct about currently employed algorithms. However, I advocate that as long as we have algorithms, we should consider whether they could be redesigned and repurposed to counteract racial inequity in the criminal law process. One way that algorithms might counteract inequity is if they were designed by most impacted racially marginalized communities. Then, these algorithms might counterintuitively benefit these communities by endowing them with a democratic mechanism to contest the harms that the criminal justice system’s operation enacts on them

A Conversation on the Carceral Home

On February 8, 2024, scholars Ngozi Okidegbe, Kate Weisburd, Emmett Sanders, and James Kilgore met virtually at the Boston University School of Law to hold a conversation on Professor Weisburd’s article, The Carceral Home, 103 B.U. L. Rev. 1879 (2023)

Submission to the Toronto Police Services Board’s Use of New Artificial Intelligence Technologies Policy- LEAF and the Citizen Lab

We write as a group of experts in the legal regulation of artificial intelligence (AI), technology-facilitated violence, equality, and the use of AI systems by law enforcement in Canada. We have experience working within academia and legal practice, and are affiliated with LEAF and the Citizen Lab who support this letter.We reviewed the Toronto Police Services Board Use of New Artificial Intelligence Technologies Policy and provide comments and recommendations focused on the following key observations:1. Police use of AI technologies must not be seen as inevitable2. A commitment to protecting equality and human rights must be integrated more thoroughly throughout the TPSB policy and its AI analysis procedures3. Inequality is embedded in AI as a system in ways that cannot be mitigated through a policy only dealing with use4. Having more accurate AI systems does not mitigate inequality5. The TPS must not engage in unnecessary or disproportionate mass collection and analysis of data6. TPSB’s AI policy should provide concrete guidance on the proactive identification and classification of risk7. TPSB’s AI policy must ensure expertise in independent vetting, risk analysis, and human rights impact analysis8. The TPSB should be aware of assessment challenges that can arise when an AI system is developed by a private enterprise9. The TPSB must apply the draft policy to all existing AI technologies that are used by, or presently accessible to, the Toronto Police ServiceIn light of these key observations, we have made 33 specific recommendations for amendments to the draft policy

I Love a Man in Uniform: The Debate Surrounding Uniforming the New York Police Force in the 19th century

We encounter uniforms as part of material culture in many areas of life. As a source of symbolic communication they fulfill a variety of social functions. Government uniforms serve not only to establish identity and social differentiation but also offer a representation of hierarchy. Therefore uniforms allow for the inference of the self-understanding of the state and at the same time refer to the participation of the uniformed person in the state\u27s monopoly of power. At the center of this study stands the function and appearance of state uniforms from the 18th to the 21st century. In four thematic chapters the authors investigate the military uniform as well as the uniform of the police and other state officials and examine the particular role of the uniform in communist states. Uniformen als Teil der materiellen Kultur begegnen uns in vielen Lebensbereichen. Als Mittel symbolischer Kommunikation erfüllen sie eine Vielzahl sozialer Funktionen. Staatliche Uniformen dienen nicht nur der Identitätsstiftung und der gesellschaftlichen Differenzierung, sondern auch der Herrschaftsrepräsentation. Damit gestatten sie Rückschlüsse auf das Selbstverständnis des Staates und verweisen zugleich auf die Teilhabe der Uniformierten am staatlichen Gewaltmonopol. Im Mittelpunkt dieses Bandes stehen Funktion und Erscheinungsbild staatlicher Uniformen vom 18. bis zum 21. Jahrhundert. In vier thematischen Abschnitten untersuchen die Autoren die militärische Uniform ebenso wie die Einheitskleidung der Polizei und anderer Staatsdiener und beleuchten die besondere Rolle der Uniform in kommunistischen Staaten

Beyond More Accurate Algorithms: Takeaways from McCleskey Revisited

McCleskey v. Kemp1 operates as a barrier to using the Equal Protection Clause to achieve racial justice in criminal administration.2 By restricting the use of statistical evidence in equal protection challenges, McCleskey stifled the power of the discriminatory intent doctrine to combat the colorblind racism emanating from facially neutral criminal law statutes and governmental actions.3 But what if McCleskey had been decided differently? Given that Washington v. Davis4 held that the challenged law or governmental action had to be “traced to a discriminatory racial purpose,”5 could McCleskey have articulated an approach to equal protection doctrine that would have been capable of addressing the sophisticated and sometimes technologically advanced methods by which racial hierarchy is reinforced and protected in criminal administration today? It is with this question in mind that I read Professor Mario Barnes’s6 rewritten McCleskey decision, which appears as a chapter in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law, edited by Professors Bennett Capers, Devon W. Carbado, R.A. Lenhardt, and Dean Angela Onwuachi-Willig. Using critical race theory, Professor Barnes shows us a different way forward. Critical race theory is an intellectual movement that provides a lens to study the relationship between law and racism. As Professor Capers explains, its aim is to confront and “transform[] the relationship between law and white supremacy to reshape American jurisprudence in a project of racial emancipation and anti-subordination.”7 When critical race theory enters the frame, it brings with it a distinct way of knowing about race, as well as racial discrimination, its effects, and potential avenues for its amelioration.8 For this reason, Professor Barnes offers us more than just an alternative world where Warren McCleskey prevails. He puts forth a framework that would have equipped courts with a set of interdisciplinary and empirical tools to identify and abolish the power of colorblind ideology to encase racially inequitable systems.9 To highlight the importance of Professor Barnes’s contribution, this Review will apply Professor Barnes’s framework to a current racial justice challenge: the use of racially biased risk-assessment algorithms within criminal administration.10 I start by contextualizing how McCleskey foreclosed the possibility of using the discriminatory intent doctrine to address the challenge posed by these algorithms.11 I then introduce Professor Barnes’s framework and imagine how it could be deployed in a current setting. I conclude by addressing implications