Blogosaurus Lex

Whether ’tis nobler in the parliament to suffer
The slings and arrows of outraged citizens,
Or to send a ship into that sea of troubles
And, by investigating end them….

Ay, there’s the rub

When something goes colossally wrong in Canada, there is often a call for a public inquiry. This just happened with the whole G20 thing in Toronto. This, of course, begs a few questions: what exactly is a public inquiry; when can we/must we have one; who gets to decide that; and what are the alternatives? Let’s start at the beginning….

When there is an important legal or political issue on the table, our democracy has numerous problem-solving mechanisms that can help, including: striking up a parliamentary or legislative committee to make recommendations, passing a law to make changes, or going to court to take an accused to task. Each of these mechanisms has requirements, each has limitations, and each can lead to certain results. But what happens when the problem is so big, the issue so complex, or the blow to public confidence so large, that none of those options, on their own, can provide an adequate response? Enter the public inquiry…. a residual mechanism of government, invoked when it is believed that nothing else will work.

Public inquiries (sometimes called “Royal Commissions”) have been around for a very long time. Hundreds of years ago, English monarchs could use what is known as their “prerogative power” to appoint a commission to investigate and report on matters of public concern. This tradition was incorporated into Canadian democracy and, today, both the federal and most provincial/territorial governments, including Alberta, have laws allowing them to call public inquiries. More specifically, the laws give cabinet the authority to appoint a commission by way of an Order-in-Council (OIC). That OIC provides the commission with the powers necessary to conduct the inquiry (they can be very broad) and it can also outline the exact items to be investigated, any expectations for recommendations, and a general time-line. This then becomes known as the “terms of reference” for the inquiry.

In general, there are two different kinds of public inquiry: the policy-researching kind, and the fact-finding kind.

Read more…

Working for a living is not always easy:  bosses, co-workers, clients, customers, uniforms, messy tasks…they can all take their toll.  Some days, you just want to quit. Heaven knows, Mr. Slater did. But, although the way he went about it may have been entertaining and the stuff of legends, it really was not very prudent:  he has no work, he has a mountain of legal issues, and he may have difficulty ever finding another job in the field again.

Or not. With the publicity, he may luck out and get a really lucrative book deal. That, however, would not be the case for most of us. If you are unhappy at work, do yourself a favour, find out what both your and your employer’s rights and responsibilities are before you make a knee-jerk decision.

So what do you need to know about quitting?

1. First of all, there are laws about that: you probably won’t be able to just walk out unscathed. There are things to think about. In Alberta, the law that governs employment in a non-unionized setting is the Employments Standards Code (ESC):  know what it says.  For those of you not in Alberta, there will be an equivalent provincial/territorial law). For unionized settings, there is the Labour Relations Code (LRC). That said, you must also look into the terms of your collective agreement.

2. Hopefully, after that whole G20 thing, we don’t need to remind you about to also check if there is anything in any regulations:  ESC,  LRC. (For those of you not in Alberta, the same applies).

3. You don’t think laws are fun to read? Really? There is good “plain language” information out there, too.  They’ll tell you really important things, like how much notice you have to give, how to give it, and what can happen if you don’t.

a. If you are in Alberta check out our Frequently Asked Questions about employment.
b. The Alberta Government also has a very informative site about non-unionized employment issues.  Similar informational sites exist in almost every province/territory.

4. If your behaviour while quitting physically hurts someone, puts the lives of others in danger, or causes a disturbance, you could face criminal charges.

5. If you work in a specialized field, like … say …  airlines, there be even more restrictions and consequences.

As always… know the law first! And, while you are contemplating your departure, keep yourself happy and entertained by thinking and singing about Mr. Slater, without emulating him.

On October 30, 2009, the new Alberta Adult Guardianship and Trusteeship Act (AGTA) came into force, replacing the 30-year old Dependent Adults Act (DAA).

In a nutshell, the DAA was a law that told us how to get someone appointed to make decisions for a mentally incapacitated person who had not planned for that incapacity (in other words, for someone who had not prepared any documents outlining who would make his/her decisions should s/he become incapacitated). Under the DAA, decision-making ability (or “mental capacity”) was an all-or-nothing concept: a person was considered either capable or not capable of making decisions.

Like, the DAA, the AGTA also tells us how to get someone appointed to make decisions for a mentally incapacitated person who had not planned for that incapacity…. but the whole process is now significantly different. In addition, the AGTA is based on the idea that, for some kinds of decision-making, capacity is a continuum:  a person may only need a bit of help, or s/he may still be able to make some decisions – but not all. Similarly, a person’s capacity may change over time. As a result, for “personal” decision making (which is pretty much everything that is not a financial decision) the AGTA enables a variety of support and substitute decision-making options, depending on individuals’ decision-making needs. The goal is to keep people as independent as possible and intrude on them as little as possible, given their needs and circumstances. Lots new here as well.

Sound confusing? A little overwhelming? Make you want to bury your head in the sand? Not to worry – we can help!

• We have a series of question and answers on our Canadian Legal FAQs website.
• Those same questions and answers are available in a lovely new booklet, ready for download.
• That booklet will shortly be available in print as well. Once it’s printed, you can order it from our online store
• Lastly, coming this fall …. an in-person powerpoint presentation. If you’d like to book a session for your group, send us a request.

For even more information, see the flowing links.

The Alberta Adult Guardianship and Trusteeship Act (and its regulations)

The Alberta Office of the Public Guardian

Wow. There is a lot of confusion about last weekend in Toronto.  The internet is simply abuzz with accusations, claims of all sorts, and lots of “information”.  As always, these situations are intricate, complicated, and rife for misinterpretation.

Let’s discuss some of the most common legally-related memes out there, shall we.

1. There were no additional powers given to police.

Yes, there were. See our blog post of June 25^th.  By designating certain areas as public works under the Ontario  Public Works Protection Act, lawmakers also gave these areas the benefit of the protective powers of “guards” under that Act. These protective powers are greater than “usual” protective powers under the Criminal Code of Canada (see our blog post of January 28, 2010 for a discussion of these “usual” kinds of powers). For example: officers can demand ID in more circumstances, officers can conduct searches far more easily than under the usual search warrant/s.8 of the Charter approach, and the penalties involved are greater.

Granting these additional powers was the whole point of passing the regulation in question:  there existed a quick way of giving police more power… the only catch was that the area in question had to be a public work. So…. they designated a specific area as a “public work” (see Ontario Regulation 233/10).

2. The police had no right to have, and the government had no right to give, these extra powers.

Technically, yes they did. This is the nature of how regulations work (see our blog post of June 25^th). The law/regulation that was used to do this was duly created by our democratic process, which includes our elected officials. The question of whether this duly passed law should have been used in this manner (was this its true purpose?) is a different question.  The question of whether the same powers could have been obtained in another manner is also a different question. The question of whether the power-getting process should have been more public is also a different question. If this is ever before a court, there may be a discussion about these other questions, as well as one about whether the basic tenets of the rule of law might have mandated a different approach, but that does not mean that this approach was not a legally valid one at the time.

3. The police had no choice but use this method as there was no other way.

No. In a parliamentary democracy, and under the rule of law in general, there are lots of ways to do things. Some are more complicated than others; some take longer than others; some involve more public debate than others.  For better or for worse, this is the method that was chosen.

4. There was no 5-meter zone.

Yes there was – just not everywhere. The 5m zone was not around everything, but Schedule 2 of Ontario Regulation 233/10 does indeed make reference to a 5m zone around certain parts of the new “public work”.  Grab a map of Toronto, read OR 233/10, draw lines – that is what the law was.

5. Sidewalks were not part of it.

Yes, they were, but not all sidewalks in Toronto. Schedule 1 of Ontario Regulation 233/10 does indeed make reference to sidewalks inside the area of the new “public work” outlined in Schedule 1.  Again – grab a map of Toronto, read OR 233/10, draw lines – that is what the law was.

6. The only legal place of protest was inside the protest zone.

No. The designation of the public works area did not address where protests could, or could not, happen. In addition, under the Canadian Charter of Rights and Freedoms, individuals’ rights to freedom of expression and assembly exist throughout Canada – they do not exist only in designated areas. They are not suspended just because a city is hosting the G20 Summit. The Charter does not, however, protect violent expression or gatherings, and even peaceful assemblies can be subject to other reasonable limits.

7. The Police were arresting everybody (or the variant: the police can’t detain you if they do not also arrest you).

Both of these are false. There is a difference between “arrest” and “detain”.  Many people were detained (and then not arrested and not charged with anything). The police don’t need to arrest you to detain you (this is generally true as well).  The question of length /method/ conditions of detention are different questions.

8. The powers given to the police were too large.

There isn’t really a clear answer to this one (what? the law unclear? yup – it happens). This is an issue of the terribly Canadian question of balance – (again, for more background, see our blog post of January 28, 2010).

Here’s the thing – put a bunch of human beings together and you will get a mixed-bag: some good apples, some not-so-good apples.  That is true for all genders, all ethnic groups, all ages, all professions. It just is. Add some emotionally-charged issues and you’ll find you also have to expect that some of those apples will not behave as they normally do.

So…. a protest. There will be peaceful ones , there will be not-so-peaceful ones .  Police officers….there will calm and rational ones and there will be those that clamp down too quickly or use excessive force . It just is. The job of the law is to anticipate all of that and do its best to both protect society on the whole (hence things like the Criminal Code of Canada) and protect the rights of the individual at the same time (hence things like the Canadian Charter of Rights and Freedoms).

The infernal question of balance. It is not an easy task – the boundaries are not always so clear. Here’s what we do know:

• police have a job to do (keep the peace, stop crime, protect society, ensure safety, etc);
• people have a right to freedom of assembly and freedom of expression;
• there is no bright clear line between these first two items – the two are always balanced against each other – one ends where the other begins;
• some protestors will behave badly;
• some police will behave badly;
• these high-emotion, high-tension kinds of situations will lead to unusual action and reactions on both sides;
• police have a responsibility to plan for the worst (in terms of threats to the whole) and for the best (in terms of behaving in a manner that protects the rights of individuals); and
• protesters have a responsibility to exercise their rights in a responsible manner and to not cross the line into behaviour that threatens society on the whole.

What does all that mean? Police had to be prepared (or, make no mistake about it, we would be accusing them of not doing their job). This is all the more true in this day and age of terrorism.  Part of being prepared is knowing that there will be a few bad-apple protestors (and make no mistake about it, there always are) and having the ability to deal with them.  That said, the question of whether the chosen method of preparation – and its ultimate enforcement – went  too far, is not a question that can be answered in court of public opinion (if it were only that easy!).  It is also not a question that can be answered when looking only at the whole and ignoring the individual. This will need to be examined through our judicial processes…and the above are likely all points that will be made during that process (plus many, many more).

Well now, that was a mouthful for a Wednesday afternoon! Despite it all, remember that we are all still very lucky to live in a country where we can even have these discussions, and, hopefully, the communal wisdom gained from last weekend’s events will serve to ever-improve this balancing act we all hold dear and which, in many ways, defines us on the global stage.

Happy Canada Day everyone!

For more information, we offer the following links: Read more…

When many of us think of the written laws that govern us (often called “Acts” or “Statutes”), we  think of the legislative process we learned about in high school: we imagine our elected officials, having readings and striking committees; we imagine debating and, of course,  voting.  Regulations, on the other hand, do not readily come to mind. In fact, some of us may not even have been taught about regulations and how they work. Today, however, people in the City of Toronto are learning all about them.

In general, a regulation is a very handy thing. Let’s use the example of minimum wage.  We can probably all agree that having a minimum wage is important. So – we would want a law that makes it mandatory. Big, important, societal concepts like that are often written in our laws (passed as per that standard legislative process).  This ensures that any attempts to change those big concepts (like, say, if a government wanted to get rid of minimum wage) do go in front of the legislature or parliament (as the case may be) and are subject to the scrutiny of our elected officials (including opposition members).  Generally, however,  we don’t want the smaller issues surrounding these big concepts  to all have to go through the legislative process as well. Imagine, if you will, that every time the minimum wage was increased, it had to go through the whole legislative process.  Now add to that all the little issues relating to all other laws as well. It would be chaos – the legislature/parliament would never get anything done.  So… when a law is passed, included in that law is the power for someone (often cabinet, but sometimes an even smaller body) to make “regulations” about certain topics. This allows such “smaller” decisions to get made efficiently, and it leaves our elected officials free to keep dealing with the bigger issues of the day.

Here’s the thing, though…. regulations are just as much “law” as an Act is; they are just as powerful and they can result in just as much benefit, or detriment.

What does this have to do with Toronto, I hear you ask?

Well…the province of Ontario has an Act called the Public Works Protection Act (PWAA).  This is a helpful law. It is good to have provisions that allow for the protection of things like railways, water works,  and plants that produce energy – especially in this day and age. Section 6 of that Act gives the Ontario cabinet the power to make regulations about a few things, including “defining the areas that constitute approaches to public works” and “any matter necessary or advisable to carry out effectively the intent and purpose of [the] Act”. With that regulation-making power in hand, on June 2, 2010, the Ontario cabinet quietly passed a regulation, Ontario Regulation 233/10 (remember now, no legislature involved, no debate, etc, required) that designates the space within a 5m radius of that downtown G8/G-20-related fenced-off area as a “public work”  – “including, without limitation and for greater certainty, every sidewalk in that area”.  This regulation has been published online, but will not be published in the Ontario Gazette (the more traditional method of introducing new law) until early July (which is after the regulation will have been revoked – as the regulation includes its revocation on June 28, 2010, the day after the summit ends). Until today, there has been very little said publicly about this new regulation.

So what does all of that mean? For that, we must turn to the power of “guards” given under the PWAA. According to that act, a guard (or peace officer) can:

• require any person to identify himself/herself and to state the purpose for which he or she desires to enter the public work;
• may search, without warrant, any person entering or attempting to enter the designated area; and
• may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering.

If the person in question refuses to obey an officer exercising these powers, that person faces arrest, the possibility of spending up to two months in jail, or a $500 maximum fine.

Seem draconian? Seem a little sneaky, perhaps? Should it have been dealt with under a different Act? Might this be “unreasonable” search and seizure, and therefore a violation of the Charter?  Should Torontonians and its visitors know about such things in advance?

The fallout has already begun. Today, the Toronto Star told the story of a York University master’s student who was stopped by police, and, after questioning the fact that he was stopped, was brought to (and held in) a former movie studio that has been temporarily converted into a prisoner holding pen.

Regardless of anyone’s opinion, or what the courts will ultimately have to say about this, an important lesson is:  look out for those regulations – they can get you into trouble. Make sure you know all of the “law” that governs you (even if it is not in what you would think of as “a law”), and, if you are planning on being in downtown Toronto this weekend, make sure you have a look at the limits described in Ontario Regulation 233/10!

You think so? Not so fast….

The issue of whether one should have a Will comes up quite frequently here at the LRC. Although it can sometimes be argued that not everyone needs a Will, sadly, the decision about whether or not to write one is not always as carefully thought out as it should be. Often the question is based on numerous misconceptions about Wills, including what they do and don’t do and what the consequences of not having one actually are.

Based on these misconceptions, people may think things like:

• Wills are too expensive to create;
• they don’t need a Will because they are not leaving anything to family members (or because they don’t have family);
• their loved ones (friends or family members) have keys and know who should get what; and
• not having a Will will minimize government interference in their affairs.

Actually, in most cases, none of these are true. Furthermore, these misconceptions can end up being so wrong that, in the end, not having written a Will can result in greater expense and headache than if a Will had been written.

Unfortunately, we at the LRC have seen many people experience these headaches: a non-Will-writing loved-one has died, nothing is as expected, and no one involved knows what to do.  Although, in such situations, the LRC can then provide the legal information needed to start addressing the problems, the information is neither simple nor pretty, and generally not what the ones left behind want to hear. The usual result: “If only s/he had written a Will.”  Indeed.

Are you sure you don’t need a Will?  Do yourselves and your friends and family a favour – look into it.

Start with learning just what happens after a person dies and there is no Will to be found. See our ACJNet Special Topic about dying without a Will when there is no immediate family around. (http://www.acjnet.org/abnews/default.aspx?id=25922)

For more general information about making a Will see our FAQ booklet: Making a Will in Alberta:  http://www.oak-net.org/wills/MakingaWill%20April%202009.pdf

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…

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

Hi there. Since this is my first blog post, I should start by introducing myself: I am Carole Aippersbach, staff lawyer at the LRC. I do all kinds of things around here including researching and drafting of legal information for LRC websites and publications, and conducting public presentations on various legal topics.

This blog post, however, is not about me, or the LRC, but rather, about other hard workers who help all of us do a better job – the authors of legal blogs. The Clawbies – the Canadian Law Blog Awards - are open, and we want to nominate!

As part of our daily routines, many of us follow legal blogs. They help to keep us updated and informed; they inspire discussion and debate; and, sometimes, their posts might even light the sparks for future projects. As per our collaborative fashion here at the LRC, we took an informal poll of all of our blog-followers, from the executive director on down, and we have our final three choices.

• ABlawg, by the University of Calgary Faculty of Law.  These posts are always timely,  thoughtful, and wonderfully in-depth. Often, reading one of these posts will lead to one or more us suddenly learning a great deal about an area of law we previously knew little about. Also, given that we are located in Edmonton, the blog’s Alberta focus places it high on our list of must-reads.
• Library Boy, by Michel-Adrien Sheppard. We really enjoy this blog because it consistently refers to such a wide range of legal topics, including very unique ones as well. Perfect for keeping our horizons nice and broad. In addition, given how prolific the posts are (there is always something new to see), we generally feel like we are being slackers and it inspires us all to work harder!
• Law is Cool, the Canadian law school blog. We gleefully read this blog because, well, it is cool. It provides an excellent mix of law as it relates to modern culture and social issues, as well as more serious articles and commentary. It is intended to stimulate discussion and it does; as a result, it is an excellent example of how effective this medium can be.

Good luck to all the nominees!