Blogosaurus Lex

A recent court decision and the proclamation of a new federal law offer an  interesting study in contrasts.   On February 22, 2010 a statute that amends the Criminal Code came into force.  It is called the Truth in Sentencing Act, a label that seems more ideological than merely descriptive.

The Act changes the way that judges can deal with prisoners who have spent time in remand centres prior to their trials being held.   Previously, judges had the discretion to credit days that accused persons spent in remand on a two-for-one and sometimes three-for- one basis to their  after-conviction jail sentences.  Now:

• a judge may allow a maximum credit of one day for each day spent in pre-sentence custody;
• if the circumstances justify it, a judge may allow a maximum credit of one and one-half days for each day spent in pre-sentencing custody;
• if the person’s criminal record or breach of conditions on bail was the reason for the pre-sentencing custody, a judge may not allow more than one day’s credit for each day spent in pre-sentencing custody;
• At a bail hearing,  if the judge orders that an accused who has a criminal record be placed in custody, the judge must then state his or her reason on the record, so that the judge who later sentences the person knows the reason for the pre-sentence order, preventing that judge from allowing more than one day’s credit for one day in pre-sentencing custody; and
• A judge who decides to allow credit for pre-sentencing custody must give reasons for the decisions and state those reasons on the record, including the amount of time credited, the sentence actually imposed, and the term of imprisonment that would have been imposed if credit had not been given for pre-sentencing custody.

The new rules for pre-sentence custody apply only to persons charged after the law comes into force.

The new law comes close on the heels of a decision by the Alberta Court of Queen’s Bench Justice Richard Marceau, which deals with the horrible conditions in the Edmonton Remand Centre, and how these conditions amounted to breaches of the prisoners’ rights under the Charter of Rights.

The case dealt with a number of inmates at the Edmonton Remand Centre, who asked for declarations that their Charter rights to be free of cruel and unusual punishment; arbitrary and unreasonable search and seizure; racist and discriminatory treatment; and unfair disciplinary hearings and punishments had been violated.  The inmates had been held in Remand for very long periods while awaiting trial on a massive drug-trafficking case. Justice Marceau agreed that their Charter rights had been breached in several ways.  He found that:

• inmates were locked up two to a cell for 18 -21 hours a day with limited access to recreation or other activities for months, and for some, for years at a time.  This was cruel and unusual punishment under s. 12 of the Charter and the breach shocked the conscience and was grossly disproportionate treatment;
• instances of supplying inmates with communal underwear that was sometimes not properly laundered was also a breach of s. 12 and did not meet public standards of decency;
• the s. 7 Charter guarantee of liberty was breached because the inmates were not told the basis for their security classifications or given an opportunity to appeal them; and
• the use of racist epitaphs and jokes against some inmates was a breach of their s. 15 Charter guarantee of equality under the law.

The Alberta government stated that many of the problems that led to this decision have been addressed, and that a new Remand Centre with a much larger holding capacity is due to open in 2012.

How do we reconcile the new law with the recent court decision?  One of the rationales given for the new law is that accused persons through their lawyers deliberately stall trials so that they can take advantage of the judges’ discretion.  But no credible evidence exists that this takes place, criminal defence lawyers vehemently deny it, and given the dreadful conditions in many remand centres across the country, is it really likely that this is commonplace?   The Edmonton Journal, in an editorial in its February 26, 2010 edition stated:

“Over the past 20 years, more accused persons in Canada have been spending more time in jail awaiting trial. What’s more, the conditions under which they’ve been kept have, on the whole, worsened. By passing Bill C-25, the government has assumed a responsibility to ensure these conditions improve. If time served before trial is to be treated as legally the same as time served after it, the conditions under which the two stretches are lived cannot differ as drastically as they do today.”

If the government does not take steps to improve the conditions in the nation’s remand centres, then many more Charter challenges to the new law are likely to ensue.

Question of the month from the Garvie Reading Room:

I am thinking of buying an expandable baton to keep in my bed room for self- defense as I am already trained in them. Are they allowed in Canada? If I ordered one, would I have any problem getting it through customs?

As well as firearm restrictions, there are many other types of weapons that are completely prohibited in Canada. A list of them is provided by the Canada Border Services Agency. The list does include certain types of batons. For detailed descriptions of these items you can see their Memorandum D19-13-2: Importing and Exporting Firearms, Weapons and Devices (download the PDF and see section starting on p. 11 of 39). Questions about customs procedures for importing allowed items can be directed to the Border Information Service (1-800-461-9999).

Google Buzz, a new social networking site, was launched last week. Originally, it was an opt-out service, which meant users of Gmail were automatically signed up and their most frequent email contacts were automatically added as friends. These contacts were automatically granted access to Readers – including any comments – and Picasa photo albums. Furthermore, Buzz revealed the real names of many people using pseudonyms in email contact.

This caused a huge outcry. People were not pleased with having their information exposed to the world. While some people were simply annoyed their contacts found out about the embarrassing blogs they subscribe to, others faced huge risks by having their information exposed.

Many of those outraged were journalists who wanted to protect their sources and contacts. Protecting the confidentiality of sources is an important part of journalism and something journalists in Canada are fighting to protect at the Supreme Court.

Others faced a very real threat to their safety, especially people who are trying to keep their location and other information private from abusive ex-partners. Someone may have their abuser as an email contact, but that does not mean they want to share personal information with them.

These are not small concerns. One of the LRC sites which has seen a large growth in visitors in the past six months is VIOLET: Law & Abused Women. One third of all homicides in Alberta are related to domestic violence and one of the most dangerous times for someone in an abusive relationship is when they leave. Email contact can present a safer way of communicating with an abuser, but not if your information is exposed.

To its credit, Google has responded to the criticisms and taken steps to improve Buzz’s privacy. However, it may be too little, too late. Chief Executive Eric Schmidt may claim “nobody was harmed” by having their contacts, blog subscriptions, and photos made available to the world, but many people disagree.

In the US a class action lawsuit has been launched and a complaint has been made to the Federal Trade Commission.

Here in Canada, Privacy Commissioner Jennifer Stoddart released a statement asking Google to explain how it has addressed privacy concerns since its launch.

“We have seen a storm of protest and outrage over alleged privacy violations and my Office also has questions about how Google Buzz has met the requirements of privacy law in Canada,” Commissioner Stoddart said. She also chastised Google for not consulting with her office before launching Buzz, “My Office has a variety of resources available to help companies build privacy into their products and services. When companies consult with us at the development stage, they can avoid the problems we’ve seen in recent days.”

In my last post on privacy issues and social networking, I wondered if people wanted to protect their privacy on the Internet, or if social networking sites were changing the way people feel about it. Based on the reaction to Google’s recent foray in to social networking, I’d say privacy is something people want – and in some cases need – to protect.

Click here for information on how to disable Google Buzz

The Legislating Sexualities in Alberta panel is today from 12-2pm in FAB 220 on the U of A Main Campus. I’m looking forward to going, but if you can’t be there, don’t worry. CJSR’s Gaywire is recording it and you’ll be able to download the audio.

In my last post on LSA, I mentioned my hope that there would be some discussion on the use of social media around Bill 44. Therefore, I was very excited to see that Edmonton blogger MasterMaq, with Edmonton Journal columnist Paul Simons (who won a Civil Liberties award from the Alberta Civil Liberties Research Centre for her coverage of the Bill),  complied some data on the Twitter stream around Bill 44 for May and June 2009. There isn’t much analysis yet, but there is a lot of raw data just waiting for it.

I started reading blogs because I love to learn and I’m happy to find that writing for blogs provides similar opportunities.

When I first read the description for the Legislating Sexualities panel, I assumed ‘declaration of pride in Edmonton’ was referring to the fact that Edmonton, while by no means free of discrimination, is a fairly open city. Former City Councilor Michael Phair was the first openly gay politician elected in Canada. The Institute for Sexual Minority Studies and Services grew out of one of the first university LGBT ally groups in Canada and provides U of A with “an interdisciplinary ‘hub’ for scholarly work in sexual-minority studies,” runs  CampfYrefly for sexual minority youth and has been running the InsideOut Speaker’s Series since 2003. The Exposure Festival had a successful third year and is now one of the city’s established summer events. And Gaywire brings Edmontonians an awesome hour of LGBT news and event every week. I look around me and think, “Well of course there’s pride in Edmonton.”

When I looked at the event description a little bit later and a little bit closer, however, I realized it referred to the mayoral declaration of pride in Edmonton. I had no idea what that meant. I did a little bit of research (ie: Googling) and discovered that Edmonton hasn’t always been so open.

Recently there has been a push to have cities officially recognize Pride events and that struggle continues.  There has been strong opposition from politicians and in some cases it has taken rulings by Human Rights Commissions to enforce recognition. In 2003, then-mayor Bill Smith said declaring Gay Pride Week in Edmonton would go against his religious beliefs. A complaint was filed with the Human Rights Commission arguing this decision was discriminatory and based on the mayor’s personal belief. Smith relented before a decision could be made on the case and Pride week was official declared by the city.

Canadians take pride in being one of the first nations in the world to legalize same-sex marriage, but often forget it was through the Supreme Court’s enforcement of the Charter, not because of political will. It’s only been 40 years since homosexuality was decriminalized, and 30 years since Operation Soap. Human Rights legislation exists to protect people from the tyranny of the majority and are a vital part of an open society. I’m glad Canada has such legislation and our courts and commissions are willing to enforce it. I look forward to a discussion of how such legislation has affected the lives of Canadians.

For more information about the history of homosexuality in Canada, check out the two part series Out in Canada on CBC Radio’s Rewind.

It was a Canadian decision, released by Privacy Commissioner Jennifer Stoddart in July 2009, that made Facebook change its privacy policy, but do Canadians know how – or even want – to keep their profiles private?

When Facebook’s privacy settings changed in December, users were given the option to keep their custom privacy settings or switch to the new defaults (check out Terms of Service Tracker for an excellent breakdown of the changes).  The new default settings, however, are not very secure. Users must customize various settings if they want their profiles to remain private. A recent article in the New York Times explains The 3 Facebook Settings Every User Should Check Now (h/t Slaw.ca).

That is, of course, only if you want to make your profile private. According to Mark Zuckerberg, one of the founders of Facebook, not everyone does. In an interview with TechCrunch founder Michael Arrington at the recent Crunchie Awards,  Zuckerberg claimed that social norms have changed and people are no longer as concerned with privacy as they once were.

Is this true? And if he feels this way, why has Zuckerberg made his own profile so secure? After the changes were made on December 9, Zuckerberg’s profile was briefly open to everyone. Whether this was on purpose or a result of a lack of understanding of the new default settings remains unclear. On December 11, he wrote on his fan page:

For those wondering, I set most of my content on my personal Facebook page to be open so people could see it. I set some of my content to be more private, but I didn’t see a need to limit visibility of pics with my friends, family or my teddy bear :)

Despite the lack of  “need to limit visibilty of pics”, Zuckerberg quickly changed his settings and his profile remains secure, with only his Wall and Info visible.

So does online privacy matter? Or is it true that are people are becoming less and less concerned? Some bloggers have claimed Zuckerberg is “more right than wrong”, while others have disagreed and raised questions about the motives behind the statements.

Some Facebook users do still care about privacy and were not impressed with the new defaults. On January 27, the Office of the Privacy Commissioner (OPC) launched a new investigation in to Facebook in response to a complaint filed by an individual who claimed “the new default settings would have made his information more readily available than the settings he had previously put in place.”

Facebook had agreed to implement changes to address the concerns raised in the July 2009 report. According to the statement released by the OPC, however

Since then…changes to the site’s privacy information, settings and tools have sparked criticism from users who feel that personal information posted to the site is, in some instances, even more exposed now than before.

Perhaps social norms have not changed as much as Zuckerberg thinks.

What about you? Are you on Facebook? (The LRC is.) How secure are your privacy settings? Did you accept the new default settings? Is it important to keep this information private, or is it unreasonable to expect privacy online?

For more discussion on online privacy, including the implications of reduced privacy, check out this video (transcript) of Cory Doctrow, an author, journalist and technology activist, speaking at the American Library Association’s Office for Intellectual Freedom 2008 Conference.

Well, it’s almost time for the Olympics, and with that comes all kinds of interesting happenings. As is always the case with big, national events, though, everyone has an opinion. Fortunately for us, we live in a democracy…and one in which numerous rights are protected by a Charter of Rights and Freedoms, no less. So that means we can express all those opinions…right? Well, yes…but…

As is so often the case with legal issues, there is an “it depends” factor. Just as poor Carol and Mike Brady (of the Brady Bunch) had to balance all the opinions and actions of a gaggle of children, so, too, must our society balance competing interests, rights, and laws. If Greg, Marcia, Peter, Jan, Bobby, and Cindy had been permitted to do and say as they pleased, whenever they pleased, the household would have quickly fallen apart.

In the past few months, the Olympic Torch Relay has been winding its way across the country. People line the streets in support; they yell and cheer. People line the streets in protest; they yell and hold up banners. At more than one leg of the Relay, some demonstrators were questioned, some detained, some even charged with an offence. At one leg in particular, a woman who was walking down a sidewalk, yelling (obscenity-free) protest slogans was, stopped, questioned and, when she refused to provide ID, handcuffed. This story raises some questions. Were some (or all) of these demonstrators’ rights being infringed? In our attempts to keep our household from falling apart, are we striking the correct balance?

Read more…

Many Canadians may not know that there is a separate system of justice for Canada’s military personnel.

Called the courts martial, these courts are established under the National Defence Act to hear cases where charges have been laid under the Code of Service Discipline.  This Code applies to all Canadian Forces personnel and to civilians who accompany the Forces on active duty.  The courts are presided over by a military judge and a panel of five.  If the accused person is an officer, then all five members of the panel must also be officers.  The higher the rank of the accused person, the more the makeup of the panel is adjusted.  Decisions may be appealed to the Court Martial Appeal Court.  This is a division of the Federal Court of Canada.  There are some links on the Federal Court’s website to the Court Martial Appeal Court site and to external links that provide very interesting information about military justice in Canada.

My interest in this topic was sparked by some interesting bits of legal trivia contained in a recent Globe and Mail column by Christie Blatchford.  Her column of January 26, 2010 is entitled “What not to wear: A court-martial case descends into goofiness.” She was writing about a trial currently underway in Gatineau, PQ.  Captain Robert Semrau is accused of second-degree murder of a suspected Taliban fighter.  It is alleged that he shot and killed the severely injured man, a very serious charge indeed.  But Blatchford reports that in a pre-trial motion, the judge was asked to rule on what participants in the trial could wear.  Defence counsel for Captain Semrau alleges that his client may not be able to get a fair trial if participants wear their uniforms because military personnel can “read” uniforms, rank  insignia, medals, and decorations and may be intimidated by them.   The defence counsel suggested that junior personnel on the panel could be intimidated by their superiors because of rank.   He pointed out that the military has recognized this problem in the past and made changes.  For example:

• Judges some time ago began to wear judicial robes instead of their uniforms;
• When it is time to decide, the panel gives its votes in ascending order of rank so that junior members are not affected by seeing how their superior officers vote.

In the Semrau case, the judge dismissed the request by defence counsel, but not before sarcastically suggesting about possible alternatives to uniforms: “ Why not a Tilley hat, cargo pants and a Columbia shirt? “  Tough on the defence counsel, I think.  He is just trying to do his job in providing the best possible defence for his client.  And possible intimidation of junior soldiers by superior officers -  not intentionally perhaps -  but because of a system that focuses on rank, respect, and obedience?  It seems quite possible to me.

For more information about the unusual nature of this trial, take a look at this report from James Cudmore of the CBC.

Updated: Note the new location, FAB 220

The Political Science Graduate Association and the Faculty of Arts at the University of Alberta are presenting the panel Legislating Sexualities in Alberta.  It will be held from 12-2pm on Friday, February 5, 2010 in FAB 220, University of Alberta North Campus. More information can be found on the facebook page:

This panel will bring together a number of interested and informed actors to discuss the implications of the Alberta government’s actions and attitudes pertaining to sexual minorities. The motivations, repercussions and significance of the Adult Interdependent Relationships Act (AIRA), Bill 44, the de-listing of gender reassignment surgery, and the eventual declaration of pride in Edmonton will be considered.

Panelists:

Lucas Crawford (English & Film Studies)                          Dr. André P. Grace (Education)
Dr. Lois Harder (Political Science)                                     Dr. Cressida Heyes (Philosophy)
Rachel Notley (MLA for Edmonton-Strathcona)                 Michael Phair (Education)

Like it or not, the law has major consequences and affects on our identities and relationships. I’m looking forward to hearing this panel discuss what these consequences and affects are for sexual minorities in Alberta.

Bill 44 amended the Human Rights, Citizenship and Multiculturalism Act (HRCMA), in part by changing its name to the Alberta Human Rights Act (AHRA), and generated controversy because of its enshrinement of parental rights and its use of the Human Rights Commission to enforce them.  For a deeper understanding of the bill and its ramifications, read this post by Linda McKay Panos.

I hope there is some discussion of citizen engagement in response to the bill and how social media fueled and facilitated the debate. A letter writing campaign was launched and rallies were held in opposition, Facebook groups were started on both sides of the debate and there was much discussion on Twitter – to the point where the hashtag #bill44 trended (was one of the most mentioned terms or hashtags on the site) during the final debate of the bill.

What gained less attention was the reason the legislation was being reviewed. In the 1998 the ruling on the Vriend case, the Supreme Court of Canada read sexual orientation in to the AHRA (then the HRCMA). Due to the common law tradition, the law itself changed as soon as the ruling was handed down. Legislatures usually amend the written law to reflect such changes soon after such a ruling, but in this case, Alberta’s legislature took ten years to respond. I’m curious about the length of time governments have to change written legislation after an SCS decision.

The de-listing of gender reassignment surgery (GRS, also known as Sexual Reassignment Surgery, SRS) for transgendered Albertans raises questions about who we deem worthy of medical treatment and how marginalized minority groups are treated in Alberta. It also raises questions about how people are defined under the law. Our society is heavily invested in the idea of a gender binary and our laws and bureaucratic processes reflect that. Transgendered people in Alberta, and in most places, must identify themselves as male or female on government documents (India legally recognizes the hijra as a third gender, but even this is problematic, in part because it groups all non-conforming gender expression in to an ‘other’ category). Not conforming with one’s legally designated gender can have many legal consequences (US websites) going beyond discrimination.

Ontario was forced to re-list GRS after the Ontario Human Rights Commission found gender identity disorder was a disability protected by human rights legislation. This raises questions of how we classify difference; it would be better to see trans people protected in terms of identity than in terms of disability. Complaints have been filed in Alberta claiming the de-listing of GRS is in violation of the AHRA.  I am hopeful the precedent set in Ontario will be followed, these challenges will be won and funding for GRS will be reinstated.

I’m also very interested in learning more about the Adult Interdependent Relationships Act. Though it can be argued this legislation was created to prevent same-sex couples from marrying, it is progressive in terms of its recognition of legal rights for people in alternative households. Although it does not provide all of the legal benefits of marriage, it is a law that acknowledges people have ways of supporting each other and living together outside of the nuclear family structure. The AIRA is a fairly new law and some of its language is ambiguous. I’d like to know what kind of cases, if any, have come before the courts to test this law.

Though it’s been over 40 years since Trudeau declared the state has no place in the bedrooms of the nation, the law continues to affect our relationships and our identities. I’m looking forward to learning more about how it does so and what the consequences – intended and not – are.

Legislating Sexualities in Alberta will be held from 12-2pm on Friday, February 5, 2010 at the University of Alberta in Dentistry/Pharmacy 2104, University of Alberta North Campus.

If you can’t wait to think about how the law effects and interacts with our identities, relationships and life chances, check out this lecture from Dean Spade entitled Trans Politics Beyond Law and Order. Spade recently spoke at UofA as part of iSMSS’s Inside/OUT Speakers Series and was recorded by CJSR’s GayWire.  Dean Spade is an Assistant Professor of Law at the University of Seattle Faculty of Law and founder of the Sylvia Rivera Law Project, which “works to guarantee that all people are free to self-determine gender identity and expression, regardless of income or race, and without facing harassment, discrimination or violence.”

The images of destruction and human suffering coming right now from Haiti are nothing short of heartbreaking.  The disaster is now 7 days old, and international, national, and local organizations, as well as individuals, are still working tirelessly to provide aid. The situation after such a disaster can be chaotic. And with a flurry of breaking news reports, appeals for money, eyewitness accounts and advice blogs all over the media, it is important to understand what is happening in order to make good donor decisions. Charity Central has compiled the following tips to help you decide how you can help Haiti:

1. Donate money, not stuff. Donated goods can clog up ports delaying other items from clearing quickly. They may also not be appropriate for the climate, religion or culture. Further information from the Canadian Department of Foreign Affairs can be found at: http://www.dfait-maeci.gc.ca/humanitarian-humanitaire/canadians_help-aide_canadien.aspx
   
2. Scams are already circulating on the internet attempting to lure those touched by the Haitian earthquake tragedy to send money to cybercriminals instead of those who need it. Visit http://www.cra.gc.ca/donors for a list of registered Canadian charities and further tips to avoid these scams.
3. Do your research. This is a massive relief effort. Those organizations that will do the most good are those with established capacity (people + stuff + the ability to distribute it), who coordinate well within the community, and who stay focused on the primary needs.
4. Donte to organizations with an established presence in Haiti, and/or
5. Donate to organizations that are well-experienced in disaster relief and response. They will have the knowledge, experienced staff, supplies, and procedures to be able to competently respond quickly.
   Some International relief orgs, with a Canadian chapter, that are mobilizing needed supplies and staff in and to Haiti are:
   • Doctors Without Borders/Medecins Sans Frontieres (MSF) Canada www.msf.ca
   • Oxfam Canada www.oxfam.ca
   • Canadian Red Cross www.redcross.ca
   • Unicef Canada www.unicef.ca
6. If you are wanting a tax receipt for your donation, be sure to give to a Registered Canadian Charity. http://www.cra-arc.gc.ca/whtsnw/tms/rthqk-haiti-eng.html
7. Spread the word. Within a couple weeks the news crews will pack up their gear and go home, and we’ll have all moved on to the next thing, but Haitians are still going to need our help for many years to come.

They’re at it again! Just when you thought that you had heard everything that you might ever want to know about prorogation… there is more to be learned. Shall we?

Shortly before Christmas, Parliament was adjourned. On December 30, 2009, Prime Minister Stephen Harper called the Governor General, Michaëlle Jean, to ask her permission to end the parliamentary session by proroguing Parliament (the second time in as many years that he has made this move). She agreed. A new session of Parliament is now set to begin on March 3, 2010 (whereas before, the old session would have just reconvened on January 25, 2010.)

As we learned last year, prorogation is a perfectly legal and legitimate action in parliamentary democracy.  So what is all the fuss about? Well, as is always the case with law, there is the letter of the law … and then there is the spirit and intent of the law. And not everyone agrees on the latter.

The arguments, in a nutshell, are as follows.

Facts both sides agree upon

• Prorogation is legal.
• This prorogation leads to an almost three month break.
• The prorogation leads to all current work in both the Parliament and the Senate being shut down and having to start afresh in the next session.

One Side

• It is only a difference of a few weeks from the original date that Parliament was to reconvene. The time span in question is not unreasonably long and well within the norm.
• Prorogation is a routine action in our democracy and has already occurred 104 times in the past 140 years. The government is simply using an established political tool.
• The government will use the extra time to put together the next steps of Canada’s economic recovery plan, and present it in a throne speech and budget. This is an urgent and pressing matter.
• The government also needs the extra time to deal with, and properly represent Canada at, the Olympics.

The Other Side

• Over two dozen bills will be left hanging and will need to be started from scratch. This is a bad example of fiscal management in a period of economic uncertainty.
• Since this occurred just as Parliament asked for documents relating to the Afghan detainee scandal, it can be interpreted as the government trying to avoid scrutiny (and during a time when Canada will be on the public stage).
• Prorogation is being used in a way that it was not intended, in order for the government to have an easier time passing its laws later, after it has appointed enough Conservative senators to create a majority in the Senate.
• Being the government means governing the country; it does not mean governing only if and when convenient and comfortable, and having a few urgent issues does not mean a government can ignore all else.

So – you be the judge! Is this becoming a pattern that fundamentally changes the face of Canadian democracy?

For more information on prorogation, please see the following resources:

From the November /December 2009 Parliamentary Democracy issue of LawNow magazine (Volume 34, Issue 2):

• The Canadian Crown: The Role of the Governor General by Kenneth Munro
• Prorogation: A Powerful Tool Forged by History by Charles Davison
• Viewpoint: Parliamentary Fairy Tales by Helen Forsey

Canadian Legal FAQs – Prorogation of Parliament

The Parliamentary Cycle

The Parliament of Canada