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.

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Carole’s blog posts from June 25 and June 30 have garnered some attention! Carole was interviewed this past week by Vue Weekly about some of the legal issues raised in Toronto at the G20 protests one month ago.

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.

The Women’s Court of Canada is a group of lawyers, academics and activists who have rewritten Supreme Court of Canada decisions in the spirit of substantive equality.

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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It seems the producers at CBC’s The Current may be reading Blogosaurus Lex! They covered two topics yesterday that correspond with our recent posts.

The first segment of the show examines a poll suggesting that two thirds of Canadians feel the force and tactics – including those violating civil rights -  used by the police during the G20 were justified. The Current asks whether Canadians are too quick to give up their civil rights in the name of order.

The LRC works to inform people about their rights and responsibilities under the law, and finding this balance while exercising civil liberties has been a repeat topic on Blogosaurus Lex. Marilyn has written about whether the police have the right to stop and question people. Carole wrote on the balance of rights and responsibilities of police and protesters earlier this year during the lead up to the Olympics and again before and after the violence in Toronto.

For more information about civil liberties, check out the Alberta Civil Liberties Research Centre.

In the second half of The Current, the topic is elder abuse, specifically financial abuse. The segment opens with the story of Francine Grimaldi, a well-known actress and cultural columnist in Quebec, who lost her retirement savings when she was scammed by a close family friend. The show then moves on to a panel discussion of the financial abuse inflicted on Canadian seniors.

This is especially timely for us at the LRC, as our new website for the Older Adult Knowledge Network www.OakNet.ca has just been launched. OakNet features information on abuse of older adults, including financial abuse.

OakNet presents information in a variety of ways.  Eileen’s Story is a fictional depiction of how someone might experience financial abuse and provides information both for the individual and for those supporting them. Just the Facts describes types of abuse and has information on what the law says about abuse.

The recent expansion of the website means OakNet now provides older adults with information on many topics. In addition to information about abuse of older adults, there is information on planning for the future, personal and family relationships and much more.

Now at this point we’re not sure if someone at The Current is a Blogosaurus Lex fan, or if the timing of these topics was coincidence. But if they start talking about charities and accountability and Salman Rushdie, I think we’ll have a little more evidence for our case.

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!

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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!

That’s what BC Attorney-General, Mike de Jong, would like to see.

BC does not allow cameras in their courtrooms at the moment and de Jong says changing this policy would give the people of the province an opportunity to learn about the court process.

Citing what he calls “a growing disconnect between citizens and their justice system,” de Jong is suggesting court proceedings be allowed to be filmed and broadcast on television and the Internet. He says this will give people an opportunity to develop a greater understanding of how the system works.

He told the Globe and Mail,

“There will be times in any proceeding where it will be necessary for protection of a minor, of an informant, a vulnerable witness to restrict media access. That is not an issue,” he said. “But I think it is time to throw the doors open a lot wider than they have been, and say to people, this is your justice system.”

The proposed changes are part of a larger project of justice reform in the province. These reforms are being looked at after an investigation by Victoria’s Times-Colonist which revealed access to public information about cases was being denied.

The announcement has been met with mixed reactions. While some people think this is a great opportunity to open up the court system to the public, others worry that the implementation will end up diminishing access to justice.

Canadian courts are open to the public, and if someone wants to watch the proceedings they are allowed to go to a courthouse and do so. However, many things – including time and space – can limit someone’s ability to attend. Broadcasting would allow people to watch proceedings regardless of their location.

There are concerns, however, about privacy – especially for vulnerable witness and jurors, about how the presence of cameras may effect the behaviour of people within the courtroom, and about what the media will broadcast.

One of the main problems with the idea is the lack of government funding for cameras. Relying on the media to broadcast cases has potential downfalls. From the Globe and Mail article:

Prominent Vancouver criminal lawyer Peter Ritchie, who defended serial killer Robert Pickton, said putting cameras in a criminal courtroom was “a very bad idea.”

He anticipated that the media would come to court with cameras only on high profile cases. “They [the media] are not going to be there on the average Tuesday when Joe Blow is being charged with impaired driving. They are going to be there in high profile cases and will be a distraction to people involved, despite efforts to prevent that,” he said. The temptation to play to the cameras that witnesses, lawyers and judges may face would be “an extraordinary distraction,” Mr. Ritchie said. “You should not be playing to the cameras. You should be dealing with the matters at hand.”

Reactions reported by The Province were mixed.

Vancouver lawyer and journalist Donna Turko, who wrote her University of B.C. master’s thesis on cameras in the courtroom, said she’s “swung back and forth on the issue.”

“It’s going to take a lot of energy and cost to get to the right spot, that it benefits rather than hurts everybody,” Turko said.

The B.C. Civil Liberties Association welcomed de Jong’s ideas.

“It’s very important to increase the opportunities for the public to see the work of the court, and television is clearly the way to reach the people,” said policy director Micheal Vonn.

The Canadian Encyclopedia has a great article on Cameras in the Court with information on the history of cameras in Canadian courtrooms, arguments for and against, and how the Charter figures in to the debate.

What do you think? Would allowing cameras in to courtrooms increase Canadians understanding of the justice system? Or would it lead to sensationalism and make people hesitate to pursue cases? Or would it lead to something in between? Let us know your thoughts in the comments.

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.

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.

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?

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