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.

• The policy-making kind occurs when a government is considering large, important new social policy. Such an inquiry can be called in order to conduct research and make recommendations for future direction. Some of our arguably quintessentially Canadian policies have resulted from this kind of inquiry, such as the Hall inquiry about medicare and the Laurendeau-Dunton commission on bilingualism and biculturalism.

• The fact-finding kind – like the one that was called for after the G20 meetings this summer – occurs after those big blows in public confidence. It is meant to address a perceived societal concern that a public institution has done something inappropriate, and will keep doing so unless someone trustworthy investigates and suggests necessary changes. In short, it is established to find out what went wrong and how something similar can be prevented in future. Some of Canada’s defining moments in history have borne such inquiries:
  • the Riel rebellion;
  • the Komagata Maru;
  • asbestos mining at Thetford Mines;
  • WW2 Japanese Settlements;
  • espionage and the Soviet Union;
  • the Krever Inquiry on the Blood System in Canada;
  • the Gomery inquiry on the sponsorship scandal;
  • the Air India Inquiry;
  • the Milgaard Inquiry;
  • the Arar Inquiry;
  • Ipperwash; and
  • Walkerton.

So why have a public inquiry? Basically, it’s about breadth, transparency, and independence. As mentioned, many of the other available mechanisms are limited: a court can only really deal with the guilt/non-guilt of an accused; parliamentary/legislative committees seek consultation and formal accountability rather than justice, and they can seem too partisan; the passing of a new law does not address who did what, and it cannot assign blame; a police commission might be too narrowly specialized. In addition, people simply may not trust such governmental processes to really determine what happened – they could, instead, perceive them as trying to ‘bury the issue’ and/or protect the very people that are under scrutiny.

Public inquiries, on the other hand, are often more flexible and far-reaching, and their structure generally ensures independence and transparency. Characteristics of public inquiries include the following.

• The commissioner is impartial (which is why it is often a retired or sitting judge – they are perceived to be the ultimate in neutrality and credibility).

• The commissioner can, and often does, have a number of roles:
  • that of a fact-finder (like a judge, but it must remembered that s/he is not a judge in this role – s/he will not decide on the issue of legal liability, and the findings and recommendations have no binding legal effect);
  • a proposer for policy reform; and
  • a healer for victims and communities (think of things like  ‘truth and reconciliation’ commissions).

• The commission can have the broadest of powers: it can subpoena witnesses, cross-examine, hold hearings, hear expert testimony, conduct research, determine responsibility, and provide recommendations. Even a sitting prime minister of provincial/territorial premier can required to testify and be cross-examined.

• For a commission, establishing the truth is the primary objective. This can then be applied to the past (attributing responsibility) and the future (healing and prevention).

• The commission’s work and hearings are open and publicly accessible.

• The terms of reference can require that the work be completed by a certain date (this can help ensure that the issue does not get lost in the political hinter-land) and, although the government can cancel an inquiry (as it did with the Somalia inquiry), in general, inquiries produce results.

So, given these advantages, why not just call a public inquiry every time something goes wrong? Well, they can be massive, expensive, and risky – law professor Ed Ratushny has compared them to a ship being sent out to sea. The question is: is an inquiry really required? Is this a situation for which none of the other governmental mechanisms really would suffice? Will a parliamentary/legislative committee really not do? Can’t the police investigate themselves? Is there truly a need for such extensive transparency?

Like much else that a government does, particularly in Canada, it is a balancing act. With this summer’s G20 affair, the government determined that the balance tipped to the ‘no’ side. So, instead, the matter is being investigated by the Ontario Ombudsman, who will investigate the introduction of the regulation that gave police broad powers to search and arrest people, and by an independent review conducted by the Toronto Police Services Board.

Oh, the balancing act…and Hamlet thought he had it rough!

Many thanks to the Centre for Constitutional Studies for their assistance with this post.

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For more information see the following links.

• Privy Council office explaining about PIs

• “Public Inquiries in Canada”:  www.mapleleafweb.com/features/public-inquiries-canada#introduction

• http://en.wikipedia.org/wiki/Category:Canadian_commissions_and_inquiries

• The federal government’s archived list of commissions (by topic).

• How do public inquiries influence public policy? Two Ontario Supreme Court judges, two Lead Commission Counsels and an academic expert share their analysis. – Agenda. TVOntario.

• Globe and Mail article by Ed Ratushny, law professor at the University of Ottawa. He also wrote a book entitled: The Conduct of Public Inquiries:

• This article by Rob Walsh on parliamentary committees and how they contrast with courts and inquiries.

• Commission for Public Complaints against the RCMP: (e.g., APEC inquiry)

• Military Police Complaints Commission

Ingrid Ostram decided that she would claim the residue under Ezra’s will.  Ezra’s mother, Anne Robinson  challenged her right to do so.  In a chambers application, the judge ruled that the separation agreement did not revoke the will and that Ingrid was entitled to inherit the residue of the estate.  Ms Robinson appealed that decision to the Nova Scotia Court of Appeal.  The issue before Mr. Justice Oland was whether Ms Ostram was bound by contract law to renounce a gift under her former husband’s will.

The Court of Appeal took an exhaustive look at case law, including some English cases from the 1800s and some American cases.  The Court first stated that “until the death of the testator, a person has nothing more than an expectancy and one cannot disclaim or renounce an interest in something to which he or she has no legal interest.”  The Court said that when there is only an expectation, there is nothing on which a renunciation can “bite”.

Once Mr. Morrell died, Ingrid Ostram had a choice.  The Court noted she chose not to renounce or refuse to take the residue of the estate.  Anne Robinson argued that Ms Ostram shouldn’t get to choose: she was contractually obligated under the separation agreement to renounce any claim to her former husband’s estate.  She further claimed that the agreement was a valid contract because it was supported by valuable consideration.    However, the Court ruled “…the appellant has failed to produce any legal authority that a contractual promise to renounce, given for consideration before the death of a former spouse, binds a person to renounce a testamentary gift after his death.”

Justice Oland identified a further problem with Ms Robinson’s challenge.  He noted that she was relying on contract law to make her case that Ms Ostram could not step away from her renunciation under the separation agreement. However, the Judge stated that “The parties to the contract were Ezra Morrell, and Ingrid Ostram, and its clause 2 states that its terms are binding on their heirs, administrators, executors, successors and assigns. The appellant was not a party to the separation agreement, nor is she one of the persons named under clause 2.  Even if it had been determined that Ingrid Ostram was contractually bound to refuse the testamentary gift, there does not appear to be any privity of contract between the appellant and Ingrid Ostram which would allow the appellant to enforce clause 20 of the separation agreement.”

The Judge dismissed Ms Robinson’s claim and also ordered that she pay costs of $2000 to the estate.

What is the moral of this story?  It is one of the oddities of Canadian law that existing wills are, with certain exceptions, invalidated by marriage, but not by divorce. Lawyers across Canada for generations have cautioned their clients that wills, generally speaking, are not revoked by divorce.  (Note that the law in Nova Scotia changed after the time of Mr. Morrell’s death. Now, the Wills Act has been amended so that divorce will revoke a bequest to a testator’s former spouse.)

The law may vary province-by-province across Canada. For example, Alberta’s Wills Act states that marriage and entering into an adult Interdependent relationship will, in most circumstances, revoke a will, but  that  “ a will speaks and takes effect as if it had been made immediately before the death of the testator with  respect to…real and personal property.”  Note too, that under the Alberta law, “A will is not revoked by presumption of an intention to revoke it on the grounds of a change of circumstances.” So, even though it may seem obvious that after a divorce, a testator intends to make a new will,  good intentions are not enough.  Therefore, prudence dictates that no matter where they live, divorcing parties should make new wills as soon as possible after a divorce.  Most lawyers advise their divorcing clients to make new wills immediately.  It is advice that should be heeded.  If not, then a result like the Morrell decision could occur.

Adapted from the July/August issue of LawNow.

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.

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

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”.

Lesley Atkinson is an employee of Canadian Pardon Service, an organization dedicated to assisting individuals with their applications for pardons, U.S. Entry Waivers, and File Destruction Requests. Canadian Pardon Service has over 20 years of experience in the business, and been following the pardons legislation closely since the bill was introduced on May 11, 2010.

As we all know, pardons legislation has been in the news the past few months, and the excitement surrounding it reached a feverish pitch last week when the bill was given royal assent, meaning it is now law. What is in the bill? For that matter, what IS a pardon? Read on to find out!

What are pardons?

A pardon is a government document granted by the National Parole Board (NPB) that, once granted, will ensure that a criminal record is removed and sealed from all federal databases. This does not mean the criminal record is erased or destroyed, just that its existence can no longer be verified or accessed by law enforcement (with rare exceptions). Many people decide to get pardons because they help remove many of the barriers a criminal record creates in employment, travelling, volunteering, immigration, and even child custody situations.

What is in the pardons bill that was brought in to force on June 29, 2010?

The bill given royal assent last week is known as Bill C-23A, The Limiting Pardons for Serious Crimes Act. Four major changes were made to the legislation, all of which will have a direct impact on applicants.

1) Individuals with certain convictions will be required to complete an increased “conviction-free” time period of ten years before they become eligible to apply for pardons, whereas under the old legislation they waited five years. These revised rules affect individuals with convictions for manslaughter (for which two or more years imprisonment were received), Schedule 1 indictable and summary offences, indictable offences that carried more than five years of imprisonment,  and certain service offences.

2) Those individuals who must complete the new eligibility time periods must also satisfy the NPB that the pardon would provide a measurable benefit to the applicant and that it would assist their rehabilitation into society. This is determined using a new form in the pardon application that requires the applicant to state exactly what changes a pardon would bring to their circumstances, as well as information on specific changes the applicant has made to their situation since their conviction, and also a explanation of how and why each offence was committed.

3) The NPB must agree that granting the pardon to applicants with the above offences would provide a measurable benefit to them and would assist in their rehabilitation into society as a law-abiding citizen. This would also be determined using the information from STEP 8 in the form described above.

4) The NFB will be given the power to refuse to grant a pardon if doing so would “bring the administration of justice into disrepute”. This new clause gives the NPB the power to deny pardons if they believe that it is in the best interests of Canadian law to do so, and also to protect Canada’s legal reputation both nationally and internationally. In order to determine this, the NPB can now look into the nature, gravity, and circumstances surrounding the conviction. This is the clause that gives the NPB the power to prevent Karla Homolka from ever getting a pardon.

This bill was given royal assent by the Governor General on June 29, 2010, bringing this legislation into force. The NPB immediately began processing all new pardon applications under the new guidelines listed above. If you are looking for more information on criminal records, pardons, types of offences, and the newly passed legislation, including more details on the new waiting times, please visit the blog at pardons.ca.

You can call the Pardons Info Line at the NPB at: 1-800-874-2652
PLEASE NOTE: You do not need a lawyer or representative to apply for a pardon.

Useful Links:

Bill C-23A in its entirety:
http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=4644679&file=4

National Parole Board – Fact Sheet about Pardons:

http://www.npb-cnlc.gc.ca/infocntr/factsh/pardon-eng.shtml

List of Schedule 1 Offences:
http://laws.justice.gc.ca/eng/C-47/page-6.html#anchorsc:1

Information about Bill C-23A released by the Ministry of Public Safety:
http://www.publicsafety.gc.ca/media/nr/2010/nr20100630-1-eng.aspx

NPB Fact Sheet – Pardons:
http://www.npb-cnlc.gc.ca/infocntr/factsh/pardon-eng.shtml

New Pardon Application and Guide from the NPB:
http://www.npb-cnlc.gc.ca/prdons/pardon-eng.shtml

Recent news about the Pardons Legislation:
http://www.montrealgazette.com/news/Pardons+rarer+serious+crimes/3214374/story.html

A news article featuring comments by the Elizabeth Fry Society:
http://www.canada.com/news/Bill+block+Karla+Homolka+from+criminal+pardon+final+stages/3188055/story.html

Concerns about the speedy passage of bill C-23A:
http://www.thehilltimes.ca/page/view/homolkabill-06-28-2010

Listen to the 10-minute  podcast where Carole speaks about free speech, what your rights are in a protest and some of the implications of the mass arrests.

Hopefully many of you are already familiar with ACJNet, our flagship website. ACJNet is an online portal that brings together law-related resources from all over Alberta and Canada to help users access public legal information. As the look and feel of ACJNet was last updated at the beginning of the decade, it is long overdue for a fresh look. With the “Upgrade 2010” project, however, ACJNet will receive even more than a new look. Our goal is to create an intuitive and easy-to-use site.

This year-long project is funded by the Alberta Law Foundation. We are currently at the halfway point. This means that we have decided what our new site will look like and how it will be structured. We are about to embark on the reorganization part. Each of our thousands of records will be reexamined as they are reassigned to new site sections. We have created multiple entry points to these records to allow for the different perceptions of our users, so there will always be an alternate pathway to the same information.

We have also changed our name to LawNet Alberta, which highlights our increased focus on Alberta. But we will also maintain LawNet Canada and LawNet Français. Although the new websites will not be launched until the end of the year, already our “Team ACJNet” meetings have been affected. So far, we have sometimes opted to call them “Team ACJNet/LawNet” meetings, but I suspect we will easily slip into “Team LawNet.”

As the only “Team ACJNet/LawNet” member working exclusively on “Upgrade 2010,” I have been enjoying applying the fundamentals of librarianship in the context of this revitalization project. My recent studies in the International Master in Digital Library Learning (DILL) programme helped shape my perceptions of improving access to online resources, and every day I find myself putting theory into practice.

Now that our new look is finalized it is hard to contain our excitement. We are eager for the records to be reorganized, even though that task will certainly fill up our long summer days.

If you are interested in participating in user testing, or have any other comments to share, please send an email to: info.lrc@ualberta.ca

• educate about copyright, licensing and digital property in plain English
• provide resources from articles to discussions to newsletters to courses and books
• arrange for a private consultation
• help you make money, save money, and mitigate your risks

She recently sent us a link to her post about The Lesser Known Subject of Moral Rights in Copyright Law which mentions her article from the Arts and the Law issue (May/June 2010) of LawNow.

Check out her post to read the article as well as an interesting article on the moral rights for film directors.

The WCC has launched a new website featuring their judgements, providing resources, and highlighting feminist organizations.

The site also features a blog where members comment on current cases and legislation.

I blogged about the WCC last summer when I interviewed WCC member Jennifer Koshan for CJSR’s Adamant Eve. You can listen to us speak about the WCC and about Newfoundland vs. NAPE here (to download audio, right click arrow icon and select “Save link as”).

The Women’s Law Forum of the University of Alberta hosted the  WCC last year. You can listen to the panel presentation, which featured Gwen Brodsky, Sharon McIvor and Melina Buckley, as well as Koshan, here.

Congratulations on the new site, WCC!

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