Blogosaurus Lex

Question of the month from the Garvie Reading Room:

If material is on the internet, and there is no copyright symbol, is it available for anyone to use? Does it matter how it is used?

A work does not have to be marked with a copyright symbol to be protected by copyright. This means that the creator has the legal right to control the use of their creation. Sometimes a website will have a page titled “Terms of Use” or “Copyright” that will describe whether or not any material on the site can be reproduced and for what purposes as well as indicating how you can request permission to use it beyond those restrictions. Many creators make their works widely available by using a Creative Commons License which automatically grants permission to use the material under certain terms.

Copyright is a complicated issue and is frequently misunderstood. Here are a couple of ways to learn more:

The publication “Copyright Matters: Some Key Questions and Answers for Teachers” provides easy-to-read answers to such basic questions as: What is copyright? Why is copyright important? What does public domain mean? What is an exception? and “What material can be copied under the Copyright Act?

Also, the Canadian Intellectual Property Office provides succinct answers to sixteen Frequently Asked Questions about copyright as well as a link to more detailed answers in their 27-page book “A Guide to Copyrights”.

This background could also help you understand some of the impending changes to the rules.  The government has been working on copyright reform and recently introduced Bill C-32 with the short title “Copyright Modernization Act”. One source of information about this is a new Government of Canada website, Balanced Copyright. With so many Canadians using the internet and electronic media, there is much public interest in this bill. A good part of the discussion concerns whether the correct balance or compromise has yet been achieved between the rights of various stakeholders. Law professor and copyright activist Michel Geist blogs regularly about this issue. His post on June 3, 2010 introduces some of the immediate reactions to the Bill. Another active group can be found at Digital Copyright Canada.

The public is being encouraged to get involved in improving this law. See, for example, this post on Digital Agenda.ca and another site established by Michael Geist, “Speak Out on Copyright”.

Question of the Month from the Garvie Reading Room:

I’m having an issue with my utilities company. Who can I talk to?

If you have a problem with your utilities bill or other aspects of the service, begin by trying to resolve it with your provider. Use the contact information on your utilities bill. If it cannot be resolved in a phone call to the customer service representative, ask to speak to a supervisor, or write a letter outlining the problem and stating what you would like them to do about it. Keep track of the name of the person you contacted and when, and what the results were. This may be helpful if you need to take further action. These tips about how to complain effectively either by phone or mail may be helpful.

If this does not solve the problem, contact your provincial utilities commission or board. Their role is to regulate utility companies. Contact information for each province is given in the Canadian Consumer Handbook. Most of the boards are particularly concerned with issues related to utility contracts and have information pages or brochures about this posted on their websites. Some of the boards have information about the complaint process directly available on their website or under the Frequently Asked Questions section. For others, you will have to contact the office to learn about how they can help.

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

Question of the Month from the Garvie Reading Room:

We recently bought a home in an older area of the city. At first our neighbours seemed to be a pleasant older couple. Then they began yelling at our kids when they play in the backyard telling them to be quiet and to stop climbing on the fence. Now they have dropped letter in our mailbox complaining about all the toys and play equipment in our backyard being an eyesore. Don’t we have the right to do what we like in our own yard? I guess there’s not a law that tells people to mind their own business. How can I get them to stop hassling us?

It can be difficult to sort out disputes between neighbours. You are right that sometimes people can be quite obnoxious without actually breaking the law. One process that has worked in many such situations is called Community Mediation. The goal of such programs is to create a safe space where people can talk to each other as well as have some guidance to explore possible solutions and come to an agreement that works for everyone. To read a description of how a program like this works, see the Mediation and Restorative Justice Centre in Edmonton. Peacemakers Trust provides links to a variety of these programs across Canada.

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).

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…

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 SCC 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.”

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

Question of the month from the Garvie Reading Room:

 Is it ethical to change lawyers in the midst of a lawsuit? My current situation is at a standstill and I think I want to hire a more aggressive lawyer.

Changing lawyers is not so much a question of ethics as it is one of practicality. One needs to consider all of the consequences including cost, possibility of further delays and the question of whether a change will, in fact, be to your benefit (i.e. Can a new lawyer actually achieve any more than the first has done?) In sum, you are certainly allowed to change lawyers but will want to make a carefully considered decision about this.

The following information may be helpful as you consider this decision.

 The Family Law Toronto Information Resource (Birenbaum, Steinberg, Landau, Savin and Colraine LLP) has a frequently asked question on this topic: How do I change lawyers? Lawyers.com (a service of LexisNexis Martindale-Hubbell) has a short article titled “How to know when it’s time to change lawyers”.

 If you do decide to change lawyers, some suggestions of questions to ask when hiring a lawyer are provided by the article “Tips on hiring a lawyer” from CanLaw.

 Whether you stay with your current lawyer or make a change, you want to make the best use of the service they provide. A tip sheet “You and Your Lawyer” is published by Public Legal Education Service of New Brunswick.  Also, Law Help Ontario, a project of Pro Bono Law Ontario, provides a short video called “Working Effectively with your Lawyer”.

Question of the month from the Garvie Reading Room:

 If a juvenile gets into trouble that is non-violent in Canada, is the juvenile record closed or does it stay on their record for life? Would it keep them from travelling to the United States?

 The Youth Criminal Justice Act provides for most youth records to be destroyed or sealed after specified periods of time as long as the youth has not re-offended. The time before a record is destroyed depends of the nature of the offence or sentence. You can read about it at the Department of Justice Canada webpage “Information about Youth Records”. 

Community Legal Education Ontario has two pamphlets which give some clear explanations about the nature of youth records:

 “Your Record Doesn’t End When You Turn 18” explains about the different types of charges or sentences and how long each type of record remains open, as well as how to check if the record has been closed.

 “Travelling with a Youth Record” outlines the implications of a youth record for travel and advises, “The best thing you can do is avoid traveling to other countries until you know your youth record in Canada has been closed.”