At a press conference on February 6, 2012, Steve Woodworth, backbench Conservative MP for Kitchener Centre stated that he tabled a motion in Parliament calling for the creation of a special committee to study medical and scientific evidence about when a child can be considered a human being separate from the mother. He also wants that committee to examine the legal impact of denying full human rights to an unborn child and provide options to update the law.

Woodworth expects his motion to get an hour of debate in March and another hour in June.

As stated in my previous post on the topic, it seems as though Woodworth is taking an indirect approach to reopening the abortion debate, and many agree.

In question period, however, Justice Minister Rob Nicholson responded to Woodworth’s motion and questions from the opposition about reopening the debate on abortion:

Private Members’ motions are considered in accordance with the rules of Parliament. The Prime Minister has been very clear; our Government will not reopen this debate.

Even if the Prime Minister and the government do not want to reopen the debate on abortion, even if this motion is going nowhere, Woodworth’s actions are bringing the debate back into the public eye! It is a thought provoker, and it is making people think and the media talk about the law that defines a human being (section 223 of Canada’s Criminal Code), about the state of abortion and about whether that should change.

Regardless of any new science on the topic of when life begins, the issues of access to abortion and the human rights of unborn children remain inherently political. If we confer a right on an unborn child, we must also remove a right from the woman carrying that child. Some believe this trade-off is worth it. Others do not. Until we solve this dilemma, we are unlikely to reach a fully satisfactory conclusion on the issues at hand.

It will be interesting what further discussion comes out of the hour long debates set for March and June and eventual vote. And to see what Harper will do next to stop any and all discussion on the motion before it goes too far.

The Quebec Bar Association last week published its first annual report card on the rule of law in the province, or Bilan de l’état de droit au Québec (in French only).

In the report, the Association summarizes its public interventions over the past year.

But what appear fairly unique are its efforts to measure the level of respect for the "rule of law" by authorities in the province and in Canada according to 4 criteria:

• public authorities and their representatives are subject to the law and courts are independent
• the protection of rights and freedoms of all citizens is assured
• the laws are stable and predictable
• access to justice is affordable

Overall, the Quebec Bar concludes that citizens of the province can have confidence in the rule of law in Quebec and Canada.

But there are grounds for worrying that certain rights are being eroded, states the report. And, according to the Bar, on certain occasions, the State has departed from respect for the rule of law.

The report mentions:

• reform of the Criminal Code (in particular, the proposed expansion of mandatory minimum sentences is criticized for threatening the ability of judges to make sentences correspond to the individual circumstances of each case)
• the growing "trivialization" (banalisation in French) of immunity from prosecution of certain categories of citizens and organizations, usually for economic reasons. The report mentions legislation that eliminated the right of citizens to sue snowmobilers or off-road vehicles for nuisance or damages to their property. It also refers to the proposed bill that would protect the City of Quebec from ever being sued over the building of a new sports/entertainment amphitheatre
• diminishing access to justice due to rising legal costs

It will be interesting to see if the idea of annual reports on respect for the rule of law spreads to other provinces and territories.

After a 6 week break the Members of Parliament return to Ottawa today starting at 11 am ET. The Projected Order of Business mentions resumption of the debate over Bill C-25, Pooled Registered Pension Plans Act. CBC's Kady O'Malley has her take on today's proceedings over on the CBC website.

We are expecting a new Federal budget in the next few weeks. And according to CBC News Now, other major legislation that will be dealt with this session includes immigration, financial services review, copyright reform (Bill C-11), the omnibus crime bill (Bill C-10) and doing away with the long gun registry (Bill C-19).

Coverage is currently available from the CBC Politics page. You can also see Kady O'Malley's live coverage via Twitter from the Hill Ticker.

The Senate returns tomorrow.

Last year I told you about the plan to release a voluntary national standard for mentally healthy workplaces. The standard aims to help Canadian employers support the psychological health and safety of their employees by providing them with the necessary guidelines and tools to achieve measurable improvements in psychological health and safety in the workplace. A draft of the standard was released on November 1, 2011 without much coverage and a consultation period followed which ended January 6, 2012. The final Standard is expected to be published in late summer 2012.

Unfortunately, since the consultation period is over, the draft of the standard is no longer available online. You can still obtain a copy by calling the CSA Standards or any of their partners championing the development of the Standard.

Luckily, Cheryl A. Edwards and Shane Todd from Heenan Blaikie LLP have prepared a very in-depth analysis of the proposed Standard and you can view it here.

According to the Mental Health Commission of Canada, mental illnesses and mental health issues are the leading cause of short- and long- term disability in the country. The cost of dealing with these issues is in the range of $51 billion per year, with almost $20 billion of that amount coming from workplace losses.

Thus, it will be interesting to see how the government, advocacy groups, associations like the CSA, mental health agencies and private sector will assist employers with solutions, resources and tools to deal with this important issue.

Adding to David Canton's post this week, updating us on privacy and data protection developments, here is a release from our friend, Ontario's Information and Privacy Commissioner, Dr. Ann Cavoukian. And an interview with Steve Paikin at TVO.

It's NOT "just a number!" Commissioner Cavoukian warns of the ease of data linkages in an increasingly online world

TORONTO, Jan. 25, 2012 /CNW/ – Ontario's Information and Privacy Commissioner, Dr. Ann Cavoukian, says that people's perceptions of their privacy and anonymity online fall far short of reality. In fact, technology has evolved to the point that the seemingly unrelated pieces of information that people share about themselves online, may now be linked together, to create a detailed profile of an individual.

"We have reached a point where information – not only strongly-identifiable Social Insurance Numbers, but also IP addresses, licence plate numbers, and mobile devices – serve as pointers to personally-identifiable information, through an ever-expanding web of data linkages. This bears little resemblance to anonymous information," the Commissioner said.

New analytic tools and algorithms now make it possible – not only to link numbers to names – but to also combine information from multiple sources, ultimately creating an accurate profile of a personally-identifiable individual – and in the process, to reveal their online activities.

"Imagine a scenario where your 'anonymous' comments on a newspaper website or in an online chat forum, could be tracked back to you personally, simply by linking your IP address and browser data across multiple platforms," the Commissioner said.

The Commissioner's advice to consumers: As people share more and more personal information about themselves in new ways (such as personal blogs and social networking sites), they need to consider the nature of the information they share, and how their personal information might be used.

At the same time, she urges organizations that collect and use this data to offer consumers a clear, easy-to-use mechanism to opt out of the collection and use of their personal information. Better still – make privacy the default setting.

Here are just a few links to what seems the most thoughtful commentary on the aftermath of the Jan. 18 Blackout. Add more in the comments, if you got 'em.

• SOPA support in Congress
• PIPA vote postponed
• Why the strategy failed
• Whose daily life the blackout affected
• The significance of the effort
• The whole thing explained in 13 minutes

Also, using copyright laws to justify civil rights infringements is not over

Given the recent news about the arrest of Sub-Lieutenant Jeffrey Paul Delisle, Slaw readers may want to visit the Security of Information Act (SOIA) under which he has been charged, according to reports. Government officials and the RCMP have refused to identify the section of the legislation involved, however.

I say "visit" the Act in part because it is a nearly indigestible tangle, a true failure, perhaps, of the draftsperson's art. This lack of clarity, which could be seen as a sympathetic reflection of the espionage world I suppose, has been the subject of judicial criticism. Readers may recall O'Neill v. Canada, the 2006 case of the Ottawa reporter who had documents pertaining to Maher Arar removed from her home pursuant to search warrants obtained on the basis of s.4 of SOIA, an older section in this much-updated "palimpsest" of a statute, in part dating back it seems to 1889. O'Neill challenged the validity of the warrants and, in so doing, the validity under the Charter of section 4(1)(a), 4(3) and 4(4)(b). Justice Ratushny of the Ontario Superior Court found these "inelegant" sections did in fact violate sections 7 and 2(b) of the Charter, being both overbroad and vague; neither was saved by s.1.

Though the heart of s.4 has been found unconstitutional, it remains in the legislation; I suspect however that Delisle will be charged under another section.

I'll reproduce s.4(1)(a) and (b) here, so you can see the sort of drafting I'm talking about:

4. (1) Every person is guilty of an offence under this Act who, having in his possession or control any secret official code word, password, sketch, plan, model, article, note, document or information that relates to or is used in a prohibited place or anything in a prohibited place, or that has been made or obtained in contravention of this Act, or that has been entrusted in confidence to him by any person holding office under Her Majesty, or that he has obtained or to which he has had access while subject to the Code of Service Discipline within the meaning of the National Defence Act or owing to his position as a person who holds or has held office under Her Majesty, or as a person who holds or has held a contract made on behalf of Her Majesty, or a contract the performance of which in whole or in part is carried out in a prohibited place, or as a person who is or has been employed under a person who holds or has held such an office or contract,

(a) communicates the code word, password, sketch, plan, model, article, note, document or information to any person, other than a person to whom he is authorized to communicate with, or a person to whom it is in the interest of the State his duty to communicate it;

(b) uses the information in his possession for the benefit of any foreign power or in any other manner prejudicial to the safety or interests of the State;

The more modern sections, introduced in 2001 after the attack on the World Trade Center, are better written, I'm glad to say. Though their number and the breadth of the definitions of some critical terms — "Prejudice to the safety or interest of the State" in s.3, for example — make for difficult analysis.

I don't know about you, but when I'm confronted with a new chunk of complicated legislation and need to get some understanding of it, I begin to chart it out, typically re-doing the order in which modern drafting practice dictates things be laid out. I wonder whether it wouldn't be possible and desirable to have each act accompanied by one or more flow charts as a guide from the framers and possessing the same lack of authority as the helpful side notes now used in legislation. I suppose that in this day and age I should be asking for a computer program that could do this charting automatically; but I'd settle for a graphic layout of what the draftspeople had in mind.

(This may not be such a wacky idea. More than a decade ago a graphic designer, David Berman, proposed to a Justice Canada pilot project that Canada move "Toward a New Format for Canadian Legislation: Using graphic design principles and methods to improve public access to the law" [PDF]. Our ability to manipulate information has come a long way since 2000; it may be time for a later version of this proposal.)

I just returned from the 2012 Liberal Biennial conference in Ottawa, where a number of policy resolutions were passed. One which has received considerable attention is Priority Policy Resolution 117, which passed with 77% of the vote. The text of the resolution reads:

Justice
117. Legalize and Regulate Marijuana
WHEREAS, despite almost a century of prohibition, millions of Canadians today regularly consume marijuana and other cannabis products;
WHEREAS the failed prohibition of marijuana has exhausted countless billions of dollars spent on ineffective or incomplete enforcement and has resulted in unnecessarily dangerous and expensive congestion in our judicial system;
WHEREAS various marijuana decriminalization or legalization policy prescriptions have been recommended by the 1969-72 Commission of Enquiry into the Non-Medical Use of Drugs, the 2002 Canadian Senate Special Committee on Illegal Drugs, and the 2002 House of Commons Special Committee on the Non-Medical Use of Drugs;
WHEREAS the legal status quo for the criminal regulation of marijuana continues to endanger Canadians by generating significant resources for gang-related violent criminal activity and weapons smuggling – a reality which could be very easily confronted by the regulation and legitimization of Canada’s marijuana
industry;
BE IT RESOLVED that a new Liberal government will legalize marijuana and ensure the regulation and taxation of its production, distribution, and use, while enacting strict penalties for illegal trafficking, illegal importation and exportation, and impaired driving;
BE IT FURTHER RESOLVED that a new Liberal government will invest significant resources in prevention and education programs designed to promote awareness of the health risks and consequences of marijuana use and dependency, especially amongst youth;
BE IT FURTHER RESOLVED that a new Liberal government will extend amnesty to all Canadians previously convicted of simple and minimal marijuana possession, and ensure the elimination of all criminal records related thereto;
BE IT FURTHER RESOLVED that a new Liberal government will work with the provinces and local governments of Canada on a coordinated regulatory approach to marijuana which maintains significant federal responsibility for marijuana control while respecting provincial health jurisdiction and particular regional concerns and practices.
Young Liberals of Canada
Liberal Party of Canada (British Columbia)

The theme of the conference was evidence-based policy and featured a plenary talk by Munir A. Sheikh, the former Chief Statistician at Statistics Canada who championed the long-form census.

However, policy resolutions passed by delegates are not binding on the Party executive, especially since a constitutional amendment which would have removed the leader's veto powers was not removed,

(2) The National Policy and Platform Committee is responsible to:

(a) provide a forum for members of the Party to have their say and influence the policies and platform of the Party;
(b) coordinate the policy development process in all provinces and territories with a view to maintaining a current written statement of the policies of the Party (the “Party policies”) that will, together with contributions from the Leader and the Caucus and subject to the approval of the Leader, form the basis for the platform of the Party for use in the next general election (the “Party platform”);
(c) establish written procedures for the policy development process and publish those procedures on the public website of the Party;
(d) maintain an up to date compilation of the Party policies on the public website of the Party; (e) subject to the veto in whole or in part (including a veto line by line) by the Leader, draft the Party platform and, upon its release during an election, publish the Party platform on the public website of the Party

Veto powers are relevant because decriminalization of marijuana has passed at previous Liberal conventions but was subsequently excluded from the Party platform. The role of the leader in supporting this resolution should then be important, but interim leader Bob Rae has thus far expressed support in his closing speech, adding,

Let's face up to it, Canada, the war on drugs has been a complete bust.

Leadership though will now be determined not just by party membership, but also by a new class created by another constitutional amendment, called "supporters," a free mechanism for participation within the party for those over 18 that support the purposes of the party, is qualified to vote, and is not a member of any other federal party,

54 Call of Leadership Vote

…

(2) If the Leader publicly announces an intention to resign or if the Leader delivers to the National President a written resignation or a written request to call a Leadership Vote, then the Leader ceases to be the Leader on the earlier of the appointment of an Interim Leader and when a new Leader is elected by the supporters members of the Party.
…
(7) The person appointed as the Interim Leader may exercise all the powers of the Leader under this Constitution until a new Leader is elected by the supporters members of the Party.
…

56 Leadership Vote procedure
(1) The Leadership Vote is a direct vote of all supporters members of the Party who have a right to vote on the Leadership Vote weighted equally for each electoral district in Canada and counted in accordance with this Section.

Because these non-member supporters will help choose the leader in March-June 2013, they may have direct input into whether the legalization of marijuana becomes part of the official Party platform. Candidates will likely be expected to express their positions on this issue during the race.

Also of relevance is that the current official opposition does not have decriminalization or legalization of marijuana in their policy platform, and the leading party is unlikely to include it given their "tough on crime" rhetoric.

If the proposal has a broad enough interest among the public it could help reinvigorate the Liberal Party through these new supporters, but conversely could mobilize opponents to either work against it within the party, or seek to prevent its passing through support of the other major parties. Either way, nobody can say that the Liberal Party of Canada, which never before in its history has been in third place status, is irrelevant to the Canadian political scene.

On December 6, 2011, the Internet Child Pornography Reporting Regulations were registered in the Canada Gazette and came into force. The goal of the regulations is to establish a framework necessary to implement the mechanics for the designated organizations receiving reports and service providers who report to discharge their duties under An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service.

On December 8, 2011, the federal Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service (formerly Bill C-22) came into force. The new legislation aims to protect children from online sexual exploitation, by requiring suppliers of Internet services to the public to:

• Report tips they receive regarding websites where child pornography may be publicly available to the Canadian Centre for Child Protection
• Notify police and safeguard evidence if they believe that a child pornography offence has been committed using an Internet service that they provide

More details on obligations under the Act can be found in my previous blog post.

So what does the Regulations say?

Purpose of regulations

Designated organization and service providers both have obligations under the Act. The Regulations state how these obligations should be completed (i.e., how to make a report to a designated organization in accordance with the Act, how to notify police in accordance with section 3 of the Act and how to safeguard evidence in accordance with section 4 of the Act.

Obligations of designated organization

The Regulation officially names the Canadian Centre for Child Protection (C3P) as the designated organization for receiving reports under the Act. The C3P is currently Canada's national tip line for online reporting of child sexual exploitation on the Internet.

The regulation:

Describes what is required for having a secure online system. The designated organization must, for the purpose of receiving reports of Internet addresses under the Act, maintain a secure online system that a) assigns each service provider a unique identifier for the purpose of making reports; b) allows a service provider to report only Internet addresses; and c) issues to a service provider, for each report they make, a receipt that indicates the incident number assigned to the report, the service provider's name and unique identifier and the date and time of the report.

Elaborates on the role, functions and activities of the designated organization. The designated organization must take reasonable measures to:

a) Ensure its continued ability to discharge its role, functions and activities under the Act, including measures relating to the protection of its physical facilities and technical infrastructure, risk prevention and mitigation, emergency management and service resumption;

b) Protect from unauthorized access any information obtained or generated by the designated organization in the course of discharging its role, functions or activities under the Act; and

c) Ensure that all of its personnel have the necessary security clearance and training to discharge the designated organization's role, functions and activities under the Act.

Requires analysis and communication of findings. As soon as feasible after receiving a report required under the Act, the designated organization must determine whether any material found at the reported Internet address appears to constitute child pornography and, if so:

a) Determine, if possible, the geographic location of the server that the reported Internet address points to and the geographic location of the server hosting the material that appears to constitute child pornography; and

b) Make available to every appropriate Canadian law enforcement agency by secure means:

(i) The reported Internet address,

(ii) A description of any geographic location that the designated organization was able to determine under paragraph a), and

(iii) Any other information in the designated organization's possession that might assist the agency's investigation.

Describes what is required for retention of records. For each report received, the designated organization must retain the reported Internet address and a copy of the receipt issued for two years after the day on which the report is received.

Clarifies what to do if there is a breach, incident or conflict of interest, and how to notify the minister. The designated organization must notify the Minister of Justice and the Minister of Public Safety and Emergency Preparedness within 24 hours of becoming aware of any incident or breach that jeopardizes the designated organization's ability to discharge its role, functions or activities under the Act. In addition, the designated organization must take any measures necessary to avoid a conflict of interest in respect of its role, functions and activities under the Act, and must address any such conflict that does arise.

Describes the requirement for annual reporting. The designated organization must, not later than June 30 of each year, submit to the Minister of Justice and the Minister of Public Safety and Emergency Preparedness a report on the discharge of its role, functions and activities under the Act for the 12-month period beginning on April 1 of the preceding year. The report must include:

a) The number of reports received under the Act and, of those, the number that led the designated organization to make information available to a law enforcement agency;

b) A description of the measures that the designated organization had in place

c) A description of any incident referred in the Act that occurred and the steps taken in response to the incident;

d) A description of the measures that the designated organization had in place in accordance with the Act, any conflict of interest that arose and the steps taken to address it; and

e) Any other information that may affect the designated organization's current or future ability to discharge its role, functions or activities under the Act.

Obligations of service providers

The regulation elaborates on the manner in which persons who provide Internet services to the public can discharge their obligations under the Act, including as it relates to making a report, making a notification and preserving computer data under the Act.

Method of reporting. For the purpose of the Act, an Internet address must be reported by a service provider using the online system set up by the designated organization the C3P. The notification from a service provider must be in writing and must include the following information:

a) The child pornography offence that the service provider has reasonable grounds to believe is being or has been committed using their Internet service;

b) A description of the material that appears to constitute child pornography, including its format;

c) The circumstances under which the service provider discovered the alleged offence, including the date and time of discovery;

d) A description of any other evidence relating to the alleged offence in the possession or control of the service provider; and

e) Contact information of the service provider's representative for the purpose of investigating the matter.

Security measures to protect data. A service provider that is required to preserve computer data must retain a copy of that data in a secure offline location.

Enforcement

Any prosecutions under this Act are conducted by the Public Prosecution Service of Canada.

This post is co-authored with Christina Catenacci LL.B

About three weeks, my colleague and fellow blogger Genevieve Lay wrote a post about the brewing storm in Montreal regarding the Canadiens' appointment of the unilingual Anglophone Randy Cunneyworth as head coach. Perhaps because it was posted shortly before Christmas, Genevieve's post did not garner any comments. However, the debate has intensified, both in the "blogosphere" and in Montreal.

In short, many Québecois feel that the Canadiens should appoint only a bilingual or Francophone coach. Local Québec papers got in the act, calling for the Canadiens' General Manager's head for his insentive decision. In response to the furor, the Canadiens responded on December 19 with a statement basically apologizing (as reported by the Montreal Gazette):

“Although our main priority remains to win hockey games and to keep improving as a team,” Molson’s statement read, “it is obvious that the ability for the head coach to express himself in both French and English will be a very important factor in the selection of the permanent head coach. … We would like to thank all our fans for their understanding.”

On January 3, the GM took it a step further (also as reported by the Montreal Gazette):

"I'm sorry if we upset people," Gauthier said Monday, during one of his media chats which are as rare as a visit from Halley's Comet, "because that certainly wasn't our intention."

"What will happen in the future, at the end of the season, is that we will reevaluate the whole file. As (owner Geoff) Molson said in his communique a week ago, it's very important that our head coach be bilingual. So that will be part of our decision at that point."

It would seem, rightly or wrongly, that the Canadians will favour a bilingual coach. Politics aside, there are legal issues involved in this debate. If Randy Cunneyworth is let go solely because he speaks French, is that discrimination based on language? If so, is it justifiable under the Québec Charter of Rights?

Prof. David Doorey and I engaged in an interesting debate via our respective blogs and there is no need to summarize them on Slaw. See here for Prof. Doorey"s original post and here for mine responding to his. His final (and eloquent) retort is here.

Time for you all to weigh in: Is it discriminatory? If so, is it justified?

Members of Parliament Stephen Woodworth (Kitchener-Centre, CPC) and Jeff Watson (Essex, CPC) are calling for a national discussion on the definition of "human being" and a full examination of Canada's laws in this regard. The appeal is supported by the Evangelical Fellowship of Canada (EFC).

Faye Sonier, the legal counsel for the EFC emphasized that the question is not so much "What is human?" but "When is human?" Sonier explains:

Medicine recognizes a point of viability for a child in the womb. Science is prepared to experiment using pre-natal human tissue from conception onward. Yet, Canada's Criminal Code states that a child in the womb is not human.

The Criminal Code provisions on this point are dumbfounding.

Parliament needs to examine these provisions; consider their historical roots; and debate whether they make sense in twenty-first century Canada."

Section 223(1) of the Criminal Code defines a human being as a child who has completely proceeded in a living state from the mother's body, whether or not the child has breathed.

Section 223(2) sets out that a homicide occurs when a person injures a child before or during its birth and the child dies after exiting the birth canal.

In its application, the Supreme Court of Canada has emphasized that an unborn child has no "legal" rights. Thus, according to the Criminal Code, the baby becomes human only when it has fully emerged from its mother's body. The EFC's Activate CFPL blog offers illustrations of the problems that arise from these definitions.

In R. v. Sullivan (1991), the Supreme Court of Canada ruled that two midwives could not be found criminally responsible in the death of an unborn child because a fetus has no rights. The Court determined that a child in the process of being born was not a "person" according to the definition in the Criminal Code.

In R. v. Drummond (1996), Brenda Drummond was charged with attempted murder after she shot herself in the womb while she was nearly full term in her pregnancy. The child was born two days later, received treatment and survived. Drummond was acquitted of attempting to murder the baby because, according to law, a baby is not a legal "person" until it is born. The Court could only have found the mother guilty of murder if the child had died after he was born. She was later sentenced to 30 months probation for "failing to provide the necessities of life" for having failed to report the injury immediately after the birth.

Yes, the wording of the law and its application are confusing, but do we need a national discussion on the definition of "human being"? In this case, with the likely aim of restricting abortions? Because this will certainly be one result!

In 1988, the Supreme Court of Canada ruled that Canada's abortion law was unconstitutional and since then abortion has been available without any major restrictions. In 1991, the Senate defeated a Bill that would have criminalized abortion unless a doctor concluded that a pregnancy would threaten a woman's physical or psychological health.

How do we reconcile the growing understanding of the complexities of life before birth with women's hard-won access to abortion and right to choose, while also protecting mothers throughout their pregnancies. And what about the increasing calls to intervene on behalf of fetuses, that is, to give them legal rights and even for those interests to outweigh those of the mother?

In an editorial on the Huffington Post, Woodworth asks, "Does it make medical sense in the 21st century to say that a child is not a human being until the moment of complete birth?"

It is obvious that the entire question of life before birth and how it should be treated requires national public discussion, and no doubt such a discussion will lead to compromise and better law; however, I do not think we will find an answer that is satisfactory to all in any century!

Pending legislation always makes good fodder for lawyers to comment on in annual predictions articles. The pending anti-spam legislation has resulted in several such comments.

In my predictions article scheduled for publication next week, I comment that:

The Federal anti-spam legislation that was expected to be in force in 2011 is still waiting for regulations to be passed before coming into force. The draft regulations received a lot of criticism, and may be revised prior to the Act coming into force. The Act will be a compliance headache for many organizations, unless the regulations effectively narrow the broad definition of Spam. The Act is intended to provide tools to stop what we all understand to be spam. But the Act defines spam to include e-mails that many businesses or charities routinely send that the recipients probably would not consider to be spam.

Michael Geist predicts that in July:

Nearly one year after proposing anti-spam regulations, the government unveils modified regulations and seeks further public comment before the law takes effect. The new regulations establish a series of new exceptions to the law consistent with the demands of several marketing groups.

Barry Sookman has written a detailed analysis entitled Will it be illegal to recommend a dentist under Canada's new anti-spam law (CASL)?  in which he suggests that the legislation may indeed be that overreaching. It is worth a read to get a flavour for how complex this can get, and what the unintended consequences may be.

This legislation and its pending regulations merit a close watch this year. While its intentions are good, I believe it has the potential to waste far more time, money and effort for businesses and charities attempting to comply, than it will save by the amount of real spam it might reduce. And I'm not sure whether appropriate regulations can temper it sufficiently.

Another wrinkle is that the Supreme Court of Canada's December decision that said the proposed Canadian Securities Act was not within the legislative authority of Parliament has some wondering if the same fate might be in store for parts of the anti-spam legislation.

"Her Majesty's Counsel, learned in the law, for the Province of Alberta"

The designation of Queen's Counsel was bestowed recently on some members of the Alberta Bar. Though the tradition of recognizing outstanding expertise, work and contributions in a lawyer’s public life has ceased in some Canadian jurisdictions, being appointed a QC is worthy of congratulations.

The legislative authority for Queen's Counsel appointments exists in Alberta, British Columbia, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, and Saskatchewan

Quebec stopped making Queen's Counsel appointments in 1976, and Ontario stopped the practice in 1985. The federal government discontinued federal Queen's Counsel appointments in 1993.

As I am in the holiday spirit, I thought it would be good to post a quick reminder about how statutory holidays work in La Belle Province. I'd also be curious to know how this might differ from other provinces or countries altogether.

According to the Québec Labour Standards Act, employers can require that employees work on statutory holidays. However, if they are required to work, employees must be paid an indemnity equal to 1/20 of the four weeks’ wages preceding the holiday, in addition to your regular salary. If the employee makes commission, the indemnity would be equal to 1/60 of the twelve weeks’ wages preceding the holiday.

Part-time employees are managed the same way as given that the indemnity is calculated as a percentage of wages, the amount of hours you work every week does not make a difference.

Employers can also choose to compensate employees with a day off. That day must however be taken within three weeks before or after the holiday.

In Québec, all of this is at the employer’s choice. However, fear not. Most employees do get their "stat" days off!

For more information, the Québec Labour Standards Commission's website provides a wealth of information (in English).

Enjoy the holiday!

On December 8, 2011, the federal Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service (formerly Bill C-22) came into force. The new legislation aims to protect children from online sexual exploitation, by requiring suppliers of Internet services to the public to:

• Report tips they receive regarding websites where child pornography may be publicly available to the Canadian Centre for Child Protection
• Notify police and safeguard evidence if they believe that a child pornography offence has been committed using an Internet service that they provide

This includes where the supplier or its employee has "reasonable grounds to believe" the Internet service is being used for this purpose. Suppliers of Internet services include companies that provide access to the Internet, email services, content hosting and related services, and social networking sites; for example, AOL, Windows Live, Facebook, Twitter, Reddit, Google, Yahoo, Gmail, Hotmail, Dropbox, and so on.

This legislation strengthens Canada’s ability to detect potential child pornography offences. It will help authorities identify, apprehend and prosecute offenders and reduce the availability of online child pornography. Most importantly, this legislation will help identify the victims so they may be rescued from sexual predators.

What does this mean in practical terms?
The first duty the law imposes on service providers is to report to a designated agency any Internet address that is brought to their attention as possibly containing child pornography. To be clear, they are required only to report the Internet address; the designated agency will take it from there.

At that point, the designated agency would determine if the Internet address actually leads to child pornography, as defined by the Criminal Code (see definition below). Subsequently, the agency would establish the geographic location of the web servers hosting the material. Once it has confirmed the nature of the material and its location, the agency would contact the appropriate law enforcement authorities for action.

The second duty on service providers is to notify police when they have reason to believe that a child pornography offence has been committed using their Internet service. For example, if, while conducting routine maintenance of its servers, an email provider discovers that the mailbox of one of its users contains child pornography, the email provider would be required to notify police.

The service provider would be obligated to preserve the evidence for 21 days after notifying authorities. This provides police with a reasonable period of time to obtain a judicial order for further preservation or production of the evidence. After the expiry of the 21-day period, unless it is extended by a court order, the service provider would be required to destroy any information that would not be retained in the ordinary course of business.

Some definitions to understand
The Canadian Centre for Child Protection is a charitable organization that operates Cybertip.ca, Canada's national tip line to report online sexual abuse of children. Cybertip.ca processes some 600 reports a month relating to the sexual exploitation of children online.

"Persons" is defined in the law to include individuals, corporations, partnerships, unincorporated associations or organizations.

Section 163.1 of the Criminal Code prohibits the production, distribution, sale and possession of child pornography, which is defined as follows:

• The visual representation of explicit sexual activity with a person who is or who is depicted as being under the age of 18
• The visual representation, for sexual purposes, of persons under the age of 18
• Any written material advocating or counselling sexual activity with a person under the age of 18

Internet child pornography takes the form of images, sound recordings, videos, drawings or accounts of sexual assaults on persons under the age of 18.

Enforcement and failure to comply
Providers of Internet services won’t be required to monitor their networks in order to find child pornography or to investigate the activities of their users. They will not be required to confirm the content of an Internet address after they have received a tip.

The law has been tailored to limit duplicate reporting for those who are already required to report child pornography under the laws of the province or jurisdiction in which they operate. The Act has been designed to work in concert with those provincial and foreign jurisdictions that have already introduced, or are in the process of introducing, similar mandatory reporting requirements. For example, in Canada it includes or will include Manitoba, Nova Scotia, Ontario and Alberta. In addition, this law will complement existing measures to protect children against sexual exploitation, including tough sentences in the Criminal Code for child pornography offences.

Failure to comply with the duties set out in this legislation constitutes an offence punishable by summary conviction with a graduated penalty scheme. For individuals (sole proprietorships), the maximum penalty is a fine of $1,000 for a first offence, $5,000 for a second offence, and for third and subsequent offences $10,000 or six months imprisonment, or both. For corporations and other entities, maximum fines are $10,000 for a first offence, $50,000 for a second offence, and $100,000 for third and subsequent offences.

Hopefully, the new Act will perform its intended function, helping law enforcement agencies find and investigate cases of child pornography and charge the individuals involved. And hopefully, the Act strikes an appropriate balance between providing valuable information to officials and maintaining citizens' privacy. We will watch closely to find out how successful the law is and whether the new obligations place a burden on organizations.

This is my last post before the holidays.

I am wishing you a Merry Christmas and all the best for the New Year!

Je vous souhaite un Joyeux Noël et une bonne et heureuse année!

See you in 2012!

I have always loved law reform commission reports. They are great sources for legal research. Many of the reports provide historical background on an issue and you can often find comparative information about how other jurisdictions have responded to a legal problem.

My highlights from the fall of 2011:

• Of course, the great news is that all of the reports of the former Ontario Law Reform Commission have been digitized (as reported December 12 right here on Slaw)
• The British Columbia Law Institute (BCLI) is launching a two-year project to consider reforms to judge-made rules governing when a person is determined to have the mental capacity to carry out a transaction or enter into a relationship
• Earlier this week, the Law Commission in England published its final report on Intestacy and Family Provision Claims on Death. The report proposes 2 draft bills to bring inheritance law into line with the needs and expectations of modern families, and simplify the law to help the bereaved deal with the property of a deceased family member.
• In late October, the Law Reform Commission of Ireland released its Consultation Paper on Sexual Offences and Capacity to Consent. In the Consultation Paper, the Commission made 15 provisional recommendations for reform, including the repeal and replacement of the existing law on sexual offences involving persons with intellectual disability. The Commission argued that section 5 of Ireland's Criminal Law (Sexual Offences) Act 1993 (a) fails to protect people with intellectual disability from unwanted sexual contact generally and (b) fails to empower people with intellectual disability to realise their right to sexual expression (it does not clearly provide for situations of consensual sex between two persons with intellectual disability). The Commission also looked at practices and laws in England and Wales, Scotland, Canada, and New Zealand.
• In September, the British Columbia Law Institute released a Report on Proposals for Unfair Contracts Relief: "This report recommends reforms to the leading concepts used by contract law to tackle the problem of unfairness. These concepts are unconscionability, duress, undue influence, good faith, and misrepresentation. Over the past years, they have been considered in an increasing number of court decisions. This has led to an expansion of, and a degree of confusion about, their scope. It is now timely to rationalize and consolidate these concepts." The BCLI website also includes a consultation paper on the issue as well as 4 backgrounders.
• The Alberta Law Reform Institute (ALRI) released a discussion report on Estate Administration.

Of course, people often ask whether law reform commission reports have any real impact. Not always, but sometimes. In November, the proposed Family Law Act was introduced in the British Columbia legislature after a major review of family legislation in the province. It is intended to overhaul the Family Relations Act. The proposal contains recommendations for changes to family law contained in four reports of the British Columbia Law Institute:

• Report on Pension Division on Marriage Breakdown (BCLI Report No. 44, 2006);
• Report on the Parental Support Obligation in Section 90 of the Family Relations Act (BCLI Report No. 48, 2007);
• Report on Appointing a Guardian and Standby Guardianship (BCLI Report No. 30, 2004); and
• Report on the Need for Uniform Jurisdiction and Choice of Law Rules in Domestic Property Proceedings (BCLI Report No. 1, 1998).

On December 7, 2011, Bill 28, The Registered Human Resources Professionals Association Act, 2011 was reintroduced in the Ontario Legislature (formerly Bill 138). This time, by representatives from all three political parties: David Zimmer, MPP, Christine Elliott, MPP and Michael Prue, MPP. The aim of the Bill remains to create a new public act governing HRPA and its members making the HRPA a true regulatory body much like those governing accountants and lawyers. We examined the previous Bill (which is similar to the new Bill) on Slaw here.

The Bill would repeal the Human Resources Professionals Association of Ontario Act, 1990 and enact the "Registered Human Resources Professionals Act, 2011" to:

• provide a framework for membership in the Association.
• prohibit the use of specified designations and initials by unauthorized individuals or entities.
• set out procedures for dealing with complaints against the Association's members and establishes a disciplinary process.
• authorize practice inspections.
• establish procedures for determining whether a member of the Association is incapacitated and provides the capacity committee with the power to take steps to address any incapacity in so far as it affects a member's practice.
• provide for the appointment of investigators and inspectors to conduct investigations and inspections under the Act, and sets out their powers.

According to the HRPA, the single provision that is generating the most comment is the power to enter work premises without warrant or court order in the context of carrying out investigations. The HRPA states that this provision is common place and exist for all regulated profession in Ontario without exception. This power is intended to be used if there is reasonable and probable grounds that an HRPA member has committed an act of professional misconduct.

Over the next few months, HRPA will be engaging members by:

• Creating a dedicated website that will provide members with comprehensive information about the act (backgrounders, FAQs, etc.). The website, www.hrpaact.ca, was launched on December 9th, 2011.
• Hosting local Chapter "Town Hall" meetings and webinars.
• Providing an information session at the annual HRPA conference in February 2012.
• Communicating regular status updates on the new act.

The HRPA states:

The new act, for which HRPA has been lobbying over the past couple of years, will enhance the credibility of the profession, support our members' careers and clarify the regulatory powers to oversee what's evolved into a true profession requiring protection of the public.

An announcement of new legislation being introduced here in Nova Scotia caught my attention recently, leading me to do a little searching which produced something that I find interesting. Considering the history of Halifax, and Nova Scotia in general being a seaport kind of place, it might seem somewhat late the NS Gov't is introducing legislation to regulate tattoo parlours in the province. The legislation itself is not that fancy in that is simply enabling regulations to be created to regulate the industry.

This bit of news caused me to wonder what other jurisdictions have done regarding tattooing so I did a bit of searching (via CanLII) of all Canadian jurisdictions, which revealed that there are 13 acts across the country that cover tattoos or tattooing. What I found interesting is that of those 13 statutes; 9 dealt with to tattoos for animals or livestock, 3 are in regard to humans and lastly Nova Scotia has had legislation regarding the Royal Nova Scotia International Tattoo prior to having anything regarding about humans actually getting tattoos. There are 60 regulations across the country that cover tattooing; of that 60; 40 have to do with tattoos on animals or livestock and 20 have to do with tattoos on humans.

Make of all this, what you will. Perhaps, this should not have come as a surprise to me given the importance of livestock in this country and our affinity for pets; but maybe because it is Friday, or possibly because the silly season has hit law schools, this struck me as meriting mention.

This is another follow up to a previous Slaw post regarding IQT’s closure. In partnership with the Ontario Ministry of Labour (MOL), the Commission des normes du travail (CNT) and Revenu Québec (MRQ) filed a petition at the courthouse in Trois-Rivières to have IQT Ltée declared bankrupt under the Bankruptcy and Insolvency Act. This measure is designed to enable 163 former employees of the call centre in Trois-Rivières, and 400 former employees of the call centre in Oshawa, to avail themselves of the federal Wage Earner Protection Program (WEPP). The petition will be heard on December 20, 2011.

In addition to the petition to have IQT Ltée declared bankrupt, the Commission des normes du travail and the Ontario Ministry of Labour are continuing to manage the issue, which includes supporting the employees in their application to the WEPP. Revenue Quebec is trying to recover public funds awarded to IQT under a job creation program and unpaid taxes.

In the event IQT’s bankruptcy is pronounced, the former call centre workers could receive compensation of up to $ 3,400. The compensation would cover the salaries and vacation and termination pay not paid.

This is a follow-up to my previous Slaw post on the obligation to register for direct deposit to receive the Solidarity Tax Credit. On November 30, 2011, the Quebec government indicated that it is refusing to end the obligation to register for direct deposit to receive the credit.

Irvin Pelletier, Member of the Legislative Assembly for Rimouski, and opposition spokesman on income and financial matters, stated (translated from French):

In rejecting an amendment to end the obligation to register for direct deposit to receive the solidarity tax credit, proposed yesterday by the Parti Québécois within the detailed study of Bill 32, the Liberal government dismisses the opinion of the Commission des droits de la personne et des droits de la jeunesse (Human Rights Commission) and prevents many people (often poor or vulnerable) to get money they greatly need.

This happened on the same day that a report of the Auditor General of Quebec, Renaud Lachance (PDF, in French) indicated that the Quebec Government is dealing with its action plan to overcome poverty in a very disorganized and inefficient way. Chapter 2 of the report gives the results of an audit on government actions to combat poverty and social exclusion.

The auditor general stated that the government’s actions to fight poverty and exclusion show that the government:

• Did not provide an accurate nor realistic picture of the real investments made
• Did not specify how to determine the sums to be included in the calculation of the investments announced in the action plans
• In fact, it did not ensure that the sums considered were calculated on the same basis, which would have facilitated harmonization of the various investments
• Showed a lack of consistency in actions taken because of an absence of specific criteria and targets
• Did not meet the deadlines prescribed by law for the submission of reports and notices
• Made it difficult to measure the progress with respect to measures and estimate what remains to be done
• Distributed incomplete and unclear activity reports
• Did not follow up on plans and measures included in the action plans and assessment of results

The auditor general requests that the government give itself specific targets to improve the income and fate of the poorest people in Quebec as set out in the law and action plan. The government has not been held accountable, and needs to be. It must also respect the law and should respect its own set objectives.

Québec Solidaire (a political party) is requesting that the government hold a parliamentary committee to mobilize the population on the central issue to any strategy to combat poverty. The government still refuses to grant the request.

In 2002, the Government of Quebec passed An Act to Combat Poverty and Social Exclusion. The law has been praised for its comprehensiveness and for defining poverty as more than just low income, including lack of “means, choices and power” as poverty indicators. The goals of the Act include reducing poverty in the province by half over 10 years, and achieving one of the lowest levels of poverty in the industrialized world by 2013.

In 2004, the Government of Quebec released its first five-year action plan on poverty, and in May 2010 released its 2010–15 action plan, Quebec’s Combat Against Poverty (PDF). From this initiative and action plan came the solidarity tax credit, which brings together the QST credit, the property tax refund and the credit for individuals living in a northern village. Low and middle-income households in Quebec are also admissible. The tax credit came into force on July 1, 2011, and aims to increase the purchasing power of underprivileged people, while limiting the effects of tax increases and rates on their income.

However, the obligation to register for direct deposit as a condition for obtaining the solidarity tax credit is counter-productive to the fulfillment of the Act's goals. The condition discriminates against citizens who don't have a bank account, which is required to receive direct deposit payments. No cheques are issued for solidarity tax credit payments.

Revenu Québec justifies this obligation to direct deposit as an assurance against theft, fraud or loss or postal strike. In addition, it helps the government cut around $20 million per year in administrative costs.

The Association coopérative d’économie familiale de l’Estrie (ACEF-Estrie) which works to defend the rights of consumers, particularly those with small revenues requested a legal opinion on the discriminatory aspect of such a requirement from the Commission des droits de la personne et des droits de la jeunesse (the Human Rights Commission).

On November 16, 2011, the commission tabled a legal opinion (in French) demanding that Revenu Québec amend section 1029.8.116.16 of the Taxation Act to eliminate the obligation to register for direct deposit as a condition to obtain the solidarity tax credit, as this measure is discriminatory and infringes the right to equality under the Charter of Human Rights and Freedoms.

The commission found that the obligation to register for direct deposit as a condition for obtaining the solidarity tax credit compromises the right to full exercise of economic and social rights, as well of the right to dignity of persons, who do not want, or cannot, open a bank account because of their social condition, disability, national or ethnic origin. “By imposing an obligation to register for direct deposit, thousands of persons are deprived of a benefit to which they are entitled and greatly need,” said the president of the commission, Gaétan Cousineau.

According to Quebec's finance minister, about 10 percent of social welfare recipients, that is approximately 50,000 people, do not have an account in a bank or a credit union, either because they do not have access to this service or refuse to do so. Although financial institutions are required under Canadian law to make bank accounts available to all who request them, persons living on social assistance are often turned down. This is considered discrimination under human rights law. Discrimination in this case includes any action that creates burdens on a particular person or group compared to others. The action consequently limits access to benefits available to other members of society. Briefly, this act of discrimination has both objective and subjective components.

The objective component, a person's standing in society, is often determined by his or her occupation, income or education level, or family background. The subjective component is associated with the perceptions that are drawn from these various objective points of reference. A person who claims discrimination based on the prohibited ground of social condition need not prove that all of these factors influenced the decision to exclude. It will, however, be necessary to show that as a result of one or more of these factors, the individual can be regarded as part of a socially identifiable group and that it is in this context that the discrimination occurred.

Differential treatment of individuals who are actually or presumed to belong to a particular group of people receiving a certain source of income is contrary to human rights standards. A measure that appears neutral can have a discriminatory effect upon a person or group of people, for example, where the measure imposes penalties or restrictive conditions not imposed on others because of their social status. This is exactly the case with respect to the registration requirement imposed for direct deposit to receive the solidarity tax credit. While on the surface, the measure looks the same for all persons affected, it actually imposes a special burden on those who, in particular because of their poverty or homelessness, do not have a bank account.

Although Revenue Quebec allows a person to contact them and make alternative arrangements on an individual basis, in my opinion, for the reasons stated above, this requirement should be removed entirely.

by Philippa Lawson*

Those following the development of Canadian privacy law have long awaited amendments to the Personal Information Protection and Electronic Documents Act (“PIPEDA”), some of which are proposed in Bill C-12. This rather long post addresses just one of these amendments: the proposed new definition of “lawful authority”.

Under PIPEDA, telecom service providers (“TSPs”) are permitted to disclose “personal information” (which includes name, address, and any other information about an identifiable individual) without the knowledge or consent of the individual only in certain specified circumstances. One of those circumstances is if the disclosure is “made to a government institution …that has made a request for the information, identified its lawful authority to obtain the information and indicated that…(ii) the disclosure is requested for the purpose of…carrying out an investigation related to the enforcement of any such law [of Canada, a province or a foreign jurisdiction]…" (emphasis added).

The meaning of “lawful authority”

In the absence of clear statutory authority for police to obtain subscriber information (and other personal information) without a warrant, the term “lawful authority” has been fraught with conflicting interpretations, with some TSPs taking the position that it means a warrant or court order, and with courts struggling to determine its scope.

As a result, the government has proposed to amend PIPEDA to include the following clarification:

s.7(3.1) For greater certainty, for the purpose of paragraph (3)(c.1):

(a) lawful authority refers to lawful authority other than
(i) a subpoena or warrant issued, or an order made, by a court, person or body with jurisdiction to compel the production of information, or
(ii) rules of court relating to the production of records; and
(b) the organization that discloses the personal information is not required to verify the validity of the lawful authority identified by the government institution or the part of a government institution. (clause 6(12) of Bill C-12)

While this amendment would certainly clarify that “lawful authority” does not mean a court order or warrant, it does nothing to specify what is required for “lawful authority” to exist. The proposed amendment therefore does little to assist courts and leaves TSPs uncertain as to when they can and cannot legally disclose customer information to the police.

One possible interpretation of “lawful authority” in the context of PIPEDA is that it simply means establishing one’s credentials as a legitimate law enforcement agent acting within the scope of one’s functions and duties. But this interpretation is unlikely as it is already implicit in the existing provision’s requirement that the request be made by a government agent for a law enforcement purpose. As noted by Justice of the Peace Conacher in his reasons for denying a search warrant request in S.C. (Re) 2006 ONCJ 343 para.9:

… s. 7(3) stipulates that the information can be provided without consent only if the body seeking the information has "identified its lawful authority to obtain the information" and has indicated that the disclosure is requested (in this case) for law enforcement purposes. The Act does not set out that the existence of a criminal investigation is, in and of itself, “lawful authority” within the meaning of the Act nor, therefore, does a “Letter of Request for Account Information Pursuant to a Child Sexual Exploitation Investigation” establish such authority. Accordingly, there must still be some “legal authority” to obtain the information; in the view of this Court s. 7(3)(c.1)(ii) by itself does not establish what that “lawful authority” is.

Another interpretation is that “lawful authority” requires statutory authority, such as the proposed new law mandating warrantless access to subscriber data. But if by “lawful authority” the legislature meant only “statutory authority”, it could and would have used that term. It must be presumed that the legislature meant more than statutory authority when it used the broader term “lawful authority”.

If “lawful authority” has any meaning (other than subpoena, warrant or court order), there must be circumstances involving law enforcement when it is not present. Such circumstances could include statutory authority, common law authority and, superseding both of these, constitutional authority. Indeed, the senior policy advisor and legal advisor to the government in the drafting of PIPEDA (Stephanie Perrin and Heather Black) explained in a text entitled The Personal Information and Electronic Documents Act: An Annotated Guide, published in 2001 shortly after the Act came into force, that:

[Section 7(3(c.1)(ii)] is aimed at ‘pre-warrant’ activities in which private sector organizations cooperate with domestic law enforcement agencies who are collecting the information on a ‘casual’ or ‘routine’ basis and for which no warrant is required. Only information that is of a relatively innocuous nature will be collected by these means, since the collection of information in which the individual has a reasonable expectation of privacy would require the Charter protection of a warrant. (p.75; emphasis added)

Effectively refuting the now common practice of police to treat s.7(3)(c.1) of PIPEDA as authority for obtaining subscriber information from TSPs without a warrant, they note that “When [s.7(3)(c.1)] was introduced, the government stated that the amendment did not give any new powers to law enforcement but that it merely reflects the status quo.” (p.74)

Later, in answer to the question “If the local police wish to obtain information about a customers, what must happen?”, Perrin and Black confirm the intended meaning of “lawful authority in s.7(3)(c.1):

The organization can only comply with that request if the police can identify their lawful authority to get the information, which essentially means that it is information in which the individual does not have a reasonable expectation of privacy under section 8 of the Charter. (p.165; emphasis added)

This interpretation is buttressed by subsection 5(3) of PIPEDA which states that “an organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances”. In other words, none of the exceptions in subs.7(3) permit collection, use or disclosure that would be considered inappropriate by reasonable persons. And surreptitious gathering by police of personal information in which the individual has a reasonable expectation of privacy would surely be considered inappropriate by reasonable people.

Hence, when a police request for information is not Charter compliant by reason, for example, of the lack of reasonable grounds to suspect that the information requested has anything to do with criminal wrongdoing, or because the information requested attracts a reasonable expectation of privacy, the TSP is not authorized under s.7(3)(c.1) to disclose the information. This statutory prohibition on the TSP’s right to disclose perfectly mirrors the police officer’s absence of constitutional authority to demand the information.

But whether a given request is Charter compliant is not always clear even to lawyers and judges. It is therefore unreasonable to expect TSPs to be able to conduct their own Charter analysis with respect to each request they receive from law enforcement. For this reason alone, s.7(3)(c.1) of PIPEDA needs to be amended. But the proposed amendment would not give TSPs the certainty they need (despite relieving the disclosing organization of the requirement to verify the validity of the asserted lawful authority). This is because it fails to state what “lawful authority” is – i.e., what it would look like to a TSP who is presented with a request. “Lawful authority” needs to be positively defined as something concrete that TSPs can easily assess without legal advice.

The simplest resolution to this problem that would both remove uncertainty for TSPs and ensure Charter compliance is to remove s.7(3)(c.1) entirely, thus prohibiting disclosures of customer information in response to requests from law enforcement without a subpoena, warrant or court order. This is the strongly favoured approach of those who value civil liberties.

Alternatively, the term “lawful authority” could be replaced by “statutory authority”. The government could then enact legislation such as proposed in this package of reforms permitting or requiring organizations to disclose certain kinds of personal information to law enforcement agencies upon request without a subpoena, warrant or court order. TSPs and others would then have the certainty they need regarding the legality of warrantless requests, and issues of constitutionality would focus on the statutory authority relied upon for such disclosures.

Failure to distinguish between different types of personal information

PIPEDA applies broadly to all forms of “personal information” while importing notions of “appropriateness”, “reasonableness” and flexibility so as to allow for differential treatment of different types of information depending on the privacy interest at stake. However, most of the exceptions to the general rule against disclosure without consent set out in s.7(3) do not distinguish among different types of data; they permit the disclosure of any personal information as long as the conditions in the exception are met. In particular, subs.7(3)(c.1) does not distinguish between content and other, non-content data – it allows organizations to disclose any and all personal information to law enforcement agencies upon request without warrant.

This “one size fits all” approach to voluntary disclosures permitted under PIPEDA is inappropriate insofar as it fails to recognize the generally very different privacy interests inherent in different types of data. Yet, as discussed above, such differences are the basis for application under the Criminal Code, common law and Charter of different standards for permitting law enforcement access to different kinds of personal information. The US Stored Communications Act (18 USC. 2702) also applies different disclosure rules depending on the type of data in question, with much more stringent limits applicable to e-mail messages and other communications content than to non-content records such as subscriber name and address and session logs.

Without detracting from the point that subscriber information and other non-content records can reveal a great deal about individuals and thus deserve to be protected by appropriate standards (for compelled as well as voluntary disclosure), the voluntary disclosure of personal information under s.7(3)(c.1) of PIPEDA in response to requests from law enforcement agencies, if maintained, should at least be limited to non-content information. Because they are responding to requests from law enforcement, private organizations are acting as agents of the state when providing this information. It has been clearly established that the Charter requires prior judicial authorization for the non-consensual interception of communications unless exigent circumstances exist, and this general rule logically extends to the surreptitious collection of data revealing the content of private communications. The exceptions set out in s.7(3) of PIPEDA that allow voluntary disclosure of personal information to police without the knowledge or consent of the individual should therefore be limited to non-content information in a manner consistent with the Charter.

______________________

* Philippa Lawson is legal counsel with the Yukon government and was formerly Executive Director of the Canadian Internet Policy & Public Interest Clinic (CIPPIC)

I like to know what is going on, especially in the Legislative Assembly of Alberta.

If you like to know what is going on in an assembly or in parliament, look to the Order Paper. The Order Paper is the complete and authoritative agenda for the legislature.

See this for a summary of the Order Paper and Notice Paper documents in the federal parliament. It gives a good overview of what type of information you can expect to find on an Order Paper.

In Alberta, order papers are stored as Assembly Documents and Records. Ontario organizes them with Debates and Proceedings and called the Current Agenda, and in BC they are with Documents and Proceedings and called Orders of the Day. There is a great Canadian Legislation Table from the Queen's Lederman Law Library that will link you to the Assembly for all Canadian jurisdictions and from there you will find the order paper.

Order papers contain tidbits of information that might interest your clients, like sending legislation to a committee for review or approving a government policy or plan. Order papers also tell you when a bill will be introduced or debated.

In a report released this week, a Royal Society of Canada Expert Panel proposes that assisted suicide and voluntary euthanasia should be decriminalized for competent individuals who make a free and informed decision that their life is no longer worth living.

The panel concludes:

1. That there is a moral right, grounded in autonomy, for competent and informed individuals who have decided after careful consideration of the relevant facts, that their continuing life is not worth living, to non-interference with requests for assistance with suicide or voluntary euthanasia.
2. That none of the grounds for denying individuals the enjoyment of their moral rights applies in the case of assisted suicide and voluntary euthanasia. There are no third-party interests, self-regarding duties, or duties toward objective goods that warrant denying people the right to assisted suicide and voluntary euthanasia. Prophesied undesirable social consequences are not sufficient to negate the right to choose assisted suicide and voluntary euthanasia.
3. That health care professionals are not duty-bound to accede to the request of competent and informed individuals who have formulated the uncoerced wish to die, but they may do so. If their religious or moral conscience prevents them from doing so, they are duty bound to refer their patients to a health care professional who will.

The report examined the experience of foreign jurisdictions where assisted dying has been allowed and proposes a system modelled after countries such as the Netherlands where patients may request assisted suicide or euthanasia when a doctor has determined they are competent to make the decision, and have done so voluntarily.

The panel also urges provincial governments to create policies to make clear the circumstances under which Crown prosecutors will not proceed with charges (that is, where there has been a free and informed decision to request assistance to die made by a competent individual).

More background:

• In 1995, the Special Senate Committee on Euthanasia and Assisted Suicide, published its final report, Of Life and Death. The report has sections on terminology, palliative care, pain control and sedation practices, withdrawal/withholding of life-saving treatment, assisted suicide and euthanasia.
• Late last year, the Library of Parliament published an update to a paper on Euthanasia and Assisted Suicide in Canada
• Earlier this year, the Library of Parliament updated its research publication on Euthanasia and Assisted Suicide: International Experiences that looked at the debates and experiences of the US, the Netherlands, the United Kingdom, Australia and a number of other countries
• The Health Law Institute at Dalhousie University in Halifax provides access to material on a number of end of life topics in its Reading Room
• Slaw's Yosie Saint-Cyr wrote a post on September 9, 2010 entitled Euthanasia Subject of Renewed Debate that discussed the public hearings on euthanasia and assisted suicide in front of Quebec's National Assembly. In that post, she also discussed Canadian case law going back to the early 1990s.

No, the big white bear hasn't replaced our industrious beaver as the national animal, as one Conservative senator has suggested. But any such move might have to hurry a bit, because Environment Minister Peter Kent has just announced that Canada's polar bear, Ursus maritimus, is now a "species of special concern" under the Species at Risk Act, SC 2002 c 29. Under that legislation there are four categories of flora and fauna, according to their plight [s.2(1)]:

1. “extirpated species” means a wildlife species that no longer exists in the wild in Canada, but exists elsewhere in the wild
2. “endangered species” means a wildlife species that is facing imminent extirpation or extinction
3. “threatened species” means a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction
4. “species of special concern” means a wildlife species that may become a threatened or an endangered species because of a combination of biological characteristics and identified threats.

The animals and plants in each category are listed in schedules to the legislation.

The order placing the polar bear on the "species of special concern" list can be found on the Canada Gazette site, along with a very detailed memorandum by the Canadian Wildlife Service explaining the bear's situation and the complexities that result from the involvement of many jurisdictions across the polar bear's range. According to Environment Canada's press release:

As a result of the listing, a management plan must be prepared within three years. It should be noted that the plan will not result in prohibitions. The ultimate aim of the plan will be to alleviate human threats in order to remove the polar bear from the Species at Risk list.

Flags are being raised by numerous privacy experts about expected federal "lawful access" legislation. This legislation–expected to be reintroduced–was last seen in the 40th Parliament, 3rd session, which ended March 26, 2011 and includes:

• Bill C-50 – Improving Access to Investigative Tools for Serious Crimes Act
• Bill C-51 – Investigative Powers for the 21st Century Act
• Bill C-52 – Investigating and Preventing Criminal Electronic Communications Act

Excerpted from a commentary by Information and Privacy Commissioner of Ontario Ann Cavoukian published in today's National Post:

At issue is the anticipated re-introduction of a trio of federal bills that will provide police with much greater ability to access and track information, via the communications technologies we use every day, such as the Internet, smart phones and other mobile devices. I have no doubt that, collectively, the legislation will substantially diminish the privacy rights of Ontarians and Canadians as a whole.

Let’s take a brief look at the surveillance bills, which were introduced prior to the last election:

• Bill C-50 would make it easier for the police to obtain judicial approval of multiple intercept and tracking warrants and production orders, to access and track e-communications.
• Bill C-51 would give the police new powers to obtain court orders for remote live tracking, as well as suspicion-based orders requiring telecommunication service providers and other companies to preserve and turn over data of interest to the police.
• Bill C-52 would require telecommunication service providers to build and maintain intercept capability into their networks for use by law enforcement, and gives the police warrantless power to access subscriber information.

I well understand the attraction for law enforcement officials — the increased ability to access and track our e-communications, with reduced judicial scrutiny, would put a treasure trove of new information at their fingertips.

However, we must be extremely careful not to allow the admitted investigative needs of police forces to interfere with or violate our constitutional right to be secure from unreasonable state surveillance. The proposed surveillance powers come at the expense of the necessary privacy safeguards guaranteed under the Charter of Rights and Freedoms.

A number of privacy and Internet experts weigh in on the matter the UnLawful Access website via this video:

And have a petition from Open Media.ca: http://stopspying.ca

As well, there have been letters and articles written; here is a selection:

• Privacy invasion shouldn't be 'lawful' - commentary by Ann Cavoukian, Information and Privacy Commissioner of Ontario, National Post (October 31, 2011)
• Letters to Ministers Toews and Nicholson re: Lawful Access [pdf] – letters by Ann Cavoukian, Information and Privacy Commissioner of Ontario (October 31, 2011)
• Why Lawful Access legislation should not be allowed – David T.S. Fraser, Canadian Privacy Law Blog (October 31, 2011)
• Privacy Commissioner outlines concerns about potential lawful access legislation – News release: Office of the Privacy Commissioner of Canada (October 27, 2011)
• Letter to Minister of Public Safety Vic Toews – Letter, Privacy Commissioner of Canada Jennifer Stoddart (October 26, 2011)
• Laws of the 21st century: Access legislation clarified – Kathryn Blaze Carlson, National Post (October 22, 2011)
• Canada’s forthcoming surveillance bill and how to rein it in – by Christopher Parsons, Vancouver Sun (October 8, 2011)
• Speech for Minister Toews For the Launch of Canada's Cyber Security Awareness Month and Public Education Initiative to Promote Cyber Security Awareness – Public Safety Canada (October 3, 2011).

I like to know things first. It's a character flaw that is exacerbated by a desire to place the libraries first in the minds of my firm's lawyers for being the source of current information. With all the technology available for learning things, it should be easy to learn what you need to know. Lately though, I find myself stymied in my desire to know things first.

Today is a good example. Being from an Alberta farming background and growing up with my great grandfather's shotgun stored in my closet (unloaded of course), I thought I would write about the imminent demise of the Long Gun Registry.

The National Post reports that the bill to dismantle the registry will be unveiled today. The Bills on today's agenda page on the LEGISinfo website has nothing about this bill.

Twitter posts reveal that the bill was introduced an hour ago, yet I can't get my hands on it. Major Canadian newspapers are reporting about the bill, but the text is elusive.

Even in an era of instant communication, patience is required.

While Canada has not exactly had its bottleshock moment, over the last few decades various regions of Canada, including British Columbia, Nova Scotia and Ontario have become notable for their wine producing regions. These producers have developed to such an extent that demand for their products has grown to a point where requests for their wines come from all quarters (undeniably is a good thing) except for when the wine producers have to decline certain requests, which happens on a regular basis because of the Importation of Intoxicating Liqours Act, RSC 1985 c I-3. Specifically section 3(1) of the act which reads:

…no person shall import, send, take or transport, or cause to be imported, sent, taken or transported, into any province from or out of any place within or outside Canada any intoxicating liquor, except such as has been purchased by or on behalf of, and that is consigned to Her Majesty or the executive government….

In short, the wine producers are not allowed to ship their product over provincial borders as only liquor agencies are allowed to ship alcohol between provinces. While, on the whole, prohibition, specifically prohibition in the United States, has been very good for Canada's economy and a source of legend of lore (the shipbuilding contract of the 20's and 30's, so-to-speak) this legislative holdover from Canada's own foray into prohibition is a significant drag on legitimate business in Canada.

On October 3, 2011, a private member's bill was introduced in Parliament. Bill C-311 – An Act to amend the Importation of Intoxicating Liquors Act (interprovincial importation of wine for personal use) seeks to amend RSC 1985, c I-3, by striking out the word "and" in one paragraph, adding the word "and" to another and inserting the following paragraph into the act

(h) the importation of wine from a province by an individual, if the individual brings the wine or causes it to be brought into another province, in quantities and as permitted by the laws of the latter province, for his or her personal consumption, and not for resale or other commercial use.

The effect of these seemingly minor changes, would be that Canadian Wineries will be able to ship their product across provincial boundaries and that; perhaps, in the not-too-distant future, a movie can be made about Canada's wines becoming a worldwide force. While private member's bills (a topic on its own) often face an uphill climb to being passed, let's hope that this one has smooth sailing so that in the future the sailing vessel does not need a false bottom.

In 2008 Parliament passed the Statutes Repeal Act, aimed at clearing out those portions of federal legislation that have passed, assented to, but not declared in force for, effectively, a decade. That Act was itself proclaimed in force in June of 2010.

Under its provisions, each year the Minister of Justice is to draw up a list of appropriate candidates and present it to the Senate and Commons within five days of the first sitting in the calendar year. Specifically, a target is any statutory provisions that

2….
(a) was assented to nine years or more before the December 31 immediately preceding the laying of the report; and
(b) had not come into force on or before that December 31.

The hammer is found in section 3, which provides that anything in the report is repealed on December 31 of the year in which the report is made, unless it is brought into force or otherwise saved by Parliament. Thus there's a broom with a ten year (9 years without being "in force" + a year to think about it) long handle sweeping up behind our legislators.

There are a mere 45 items on this year's kill list. I haven't been through them to see if there are any surprises, but if you find something of interest there, let us know in the comments.

The OIPC BC released Guidelines for Social Media Background Checks yesterday. The Guidelines were developed "to help organizations and public bodies navigate social media background checks and privacy laws."

The Guidelines outline the privacy risks associated with the use of social media to screen and monitor current and prospective employees, volunteers and candidates, including:

The collection of potentially inaccurate personal information;

The collection of too much or irrelevant personal information;

The inadvertent collection of third-party personal information; and

The overreliance on consent for the collection of personal information that may not be reasonable in the circumstances.

The Guidelines also provide additional information on what to consider and what to avoid when performing social media background checks.

Last week the Law Society of Upper Canada issued Guidelines for Law Office Searches.

Such searches are rare but when they do occur, lawyers must realize that they have certain duties and obligations to protect solicitor-client privilege, which is a fundamental right belonging to the client. The Supreme Court of Canada has held that the Criminal Code procedures governing law office searches were unconstitutional. So when a search occurs, lawyers are advised to consult the Guidelines, which are intended to assist them in protecting the common law solicitor-client privilege of their clients and which also provide best practices and general advice for dealing with particular situations.

Here are the highlights:

WHEN THE POLICE ARRIVE AT A LAW OFFICE
Inspect the search warrant
• Ensure that the law office is identified as the place to be searched,
• Ensure that the date the Police have attended at the law office is the date authorized,
• Ensure that the documents sought are identified,
• Ensure that the offence under investigation is identified,
• Ensure that the requisite judicial officer has signed and dated it,
• If there are deficiencies on the face of the warrant, point them out to the Police and assert that the Police should obtain a proper warrant, and
Do not obstruct the Police, even if you believe the search warrant or its manner of execution to be invalid.
Assert Privilege over all documents to be seized under the search warrant.
Is a Referee required?
Where the Lawyer may be a target of the investigation, if the Lawyer is in a conflict of interest and where there is no Lawyer present, this should be raised with the Police and either the Police or the Lawyer should make an application to the Court for the appointment of a Referee.
Is an Independent Forensic Computer Examiner required?
If the documents sought are on a computer or other electronic device/media, the assistance of a Court appointed Independent Forensic Computer Examiner may be required.
Do I need a Lawyer?
You are the only one who can answer that question. However, you can contact a Lawyer and you may find it helpful to speak with a Lawyer.
Lawyers should contact the Law Society at 416-947-3300 and ask to speak to Senior Counsel to
the Director of Professional Regulation for assistance when faced with a law office search

Next steps to be taken by the Referee or the non-conflicted Lawyer
• Keep notes of participants, contacts, happenings and timing,
• Identify and assert privilege with respect to all documents,
• Offer to, or if requested by the Police, locate the documents and, where practicable, make and keep copies of them,
• Comply with the terms of the search warrant and give only what is demanded by the warrant,
• Retain copies of all documents, to the extent that it is possible, time permitting,
• Offer to, or if requested by the Police, seal the documents in packages marked for identification and
initialed by you and the Police; taking care to ensure that the Police do not see the documents or any client
names,
• Ensure that the sealed packages are delivered to the custody of the Court or an independent third party as designated by the Court in accordance with the Court order, and
• Make reasonable efforts to contact the Clients whose documents are subject to seizure to advise what is happening and advise that they may wish to obtain independent legal advice.
The Search Warrant has been executed – Next Steps
If necessary initiate or respond to applications before the Court that may include applications for,
• An order to unseal and access the sealed packages,
• The appointment of a Referee or an Independent Forensic Computer Examiner,
• The determination of objections to the search warrant or its manner of execution,
• The determination of issues of solicitor-client privilege,
• Further searches such as a comprehensive electronic search of an electronic device/media or a forensic image, and
• Direction with respect to the notification of the Clients of the search for and seizure of solicitor-client
privileged documents.

The law is well described here and the entire report to Paul Schabas' committee is here.

Fenerbahçe S.K. is a football club based in Istanbul; aka the Yellow Canaries. Fenerbahçe are defending league champions in the Turkish Süper Lig. On July 21, 2011, Fenerbahçe's fans rushed the field in a protest against perceived slights of the team by the media. As you might be aware international football has been plagued with fan violence in recent years and football's governing bodies have taken steps to punish teams where such violence has taken place. In response to the incident on July 21, the Turkish FF (TFF- Türkiye Futbol Federasyonu) sentenced Fenerbahçe to a closed door match, or that they must play a match with no fans in attendance. The TFF then altered it's decision to allow only women and children under 12 to attend the match. The match was held September 20th and by all accounts it was a success as over 41,000 women and children filled Şükrü Saraçoğlu Stadium to witness Fenerbahçe draw 1-1 with Manisaspor. To quote the Hurriyet Daily News story: "There were 50,000 canary chirps, 50,000 stories in the stadium. It was so beautiful."

Initially, there was some conjecture as to whether such an event might be considered illegal under the constitution but such conjecture dissipated and in light of the rousing success of this match Fenerbahçe is moving forward with plans to limit a certain section of the stadium, comprising 470 seats, to women only. From the Guardian: "The match was considered such a success – with a less confrontational atmosphere and generous support for the opposition team – that the club has decided to set up the women-only area for a trial spell."

Given the conjecture referred to above I thought it would be interesting to look at the Turkish Constitution which states in the General Principles:

Article 10 Equality before the Law

(1) All individuals are equal without any discrimination before the law, irrespective of language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such considerations.

(2) Men and women have equal rights. The State shall have the obligation to ensure that this equality exists in practice.

(3) No privilege shall be granted to any individual, family, group or class.

(4) State organs and administrative authorities shall act in compliance with the principle of equality before the law in all their proceedings.

The Turkish Constitution also mentions women's rights in Chapter III – Social and Economic Rights and Duties:

Article 50 Working Conditions and Right to Rest and Leisure

(1) No one shall be required to perform work unsuited to his age, sex, and capacity.

(2) Minors, women and persons with physical or mental disabilities, shall enjoy special protection with regard to working conditions.

(3) All workers have the right to rest and leisure.

(4) Rights and conditions relating to paid weekends and holidays, together with paid annual leave, shall be regulated by law.

.

However; this does not mean that equal rights necessarily flourish in Turkey as a Turkish Journalist has pointed out, "…there is not a single woman in the ranks of the Turkish Football Federation and that, of the 18 Turkish Super League clubs, only two have a woman on their boards". The sections of the constitution mentioned above were inserted in 2004; in 2002 the Turkish Civil Code abolished the supremacy of men in marriage. As Women for Women's Human Rights (a Turkish NGO) eloquently puts it: "Individuals need to internalize and develop a critical understanding of their rights before they can embrace and exercise them "; (follow the preceding links for more information). Nonetheless, a small step was made in Instanbul last week when Fenerbahçe S.K hosted a unique match.

The following post just went live on the VLLB, but it's appropriate for the legal research community here at Slaw too. One of Stem's clients, Quickscribe, has announced the relaunch one of BC’s most treasured legislative research tools, the BCLD. In the narrative below, you'll find a brief history of the collection's origin, custodianship, and how members of our West Coast law library community contributed to its digital rebirth.

The British Columbia Legislative Digest: A Brief History

The British Columbia Legislative Digest (BCLD) was conceived of in 1979 by librarians at the BC Courthouse Library, now Courthouse Libraries BC, who needed a timely way of tracking changes to provincial legislation. They developed a tool that allowed the user, at a glance, to determine who introduced a bill, what stage it was at, whether it would have consequential amendments, and when and how it would come into force. Library staff issued weekly updates that subscribers would incorporate into their BCLD binders so that they always had the most current information. It must be noted, pre-dating the age of the Internet, this was no small undertaking.

Soon the BCLD, well-thumbed in its signature burgundy binders, could be found in libraries and law offices across the province. Over the next 30 years it would become an invaluable source for anyone responsible for monitoring or researching current laws, or conducting historical legislative research in British Columbia. The Canadian Legislative Index (CLI), the BCLD's federal counterpart, was equally well-used.

But by 2010, the legal information landscape had changed drastically. More information than ever was available online, and the cost to publish the still paper-based BCLD and the CLI collections had become difficult to justify. In light of this, and the growing demand for staff time on more public-facing digital initiatives, the Courthouse Libraries made a change to their strategic direction. The resulting, and very difficult, decision was made to discontinue both titles.

The fallout would soon come from legal researchers across B.C., including many members of the Vancouver Association of Law Libraries (VALL), who were disappointed with the decision. Nimble as ever, law librarians made do by piecing together information from various alternative sources, but the ease of use and trusted, comprehensive data the BCLD offered were sorely missed.

A Second Chance

Enter Quickscribe, the Victoria-based provider of hardcopy and electronic legislative information, which has developed a number of innovative products throughout its 25 years of business. Seeing an opportunity to revive and integrate the BCLD within his web-based legislative service, Quickscribe president Mike Pasta reached out to Courthouse Libraries BC with his proposal. The response went beyond expectations. He not only received the Library’s blessing to redevelop the product, but found integral group of supporters who would help guide the BCLD towards digitalization.

Over the coming months, support of the BCLD project continued to grow. In August, Mike Pasta appointed an Advisory Group of experienced law librarians, including several former BCLD caretakers, to help consult on the integration. Members of this support group, including Thea Schmidt (Borden Ladner Gervais LLP), Ana Rosa Blue (WorksafeBC), Gillian Crabtree (Edwards, Kenny & Bray LLP), and Tracey McLean, Alex McNeur, and Kat Siddle (all of Courthouse Libraries BC), continue to advise on the BCLD’s ongoing digital direction, and help ensure it remains a comprehensive and relevant research tool. Needless to say, Quickscribe is extremely grateful for the advice it has received.

The New BCLD

The new BCLD is now being relaunched as a digital product available to subscribers of Quickscribe Online. It offers a weekly Digest (similar to the Highlights, Proclamations and Regulations sections of the print edition), a dynamic "status checker", and a hyperlinked progress of bills chart that provides an overview of the year's legislative activity and chapter/bill concordance.

The BCLD also offers an email alert service for tracking bills as they progress from first reading though Royal Assent and into law. A subscriber can sign up for customized alerts that include all legislative changes; changes to topical groups of legislation; or changes to selected bills, acts, or regulations. Subscribers may also create multiple email alerts for the benefit of groups or individuals within their organization.

Ultimately, the goal of the new BCLD is to honour the spirit of its predecessor publication, while establishing itself as a new, invaluable tool for legislative monitoring and research in British Columbia.

To see the British Columbia Legislative Digest in action, see the video tour posted on the Quickscribe website. For those interested in having a look at this new resource, Quickscribe is also currently offering a two-month free trial just in time for the upcoming legislative session.

The draft regulations under the anti-spam legislation have attracted a lot of comments, most them negative. See this article by Lorne Salzman and Barry Sookman for a detailed summary.

In essence, the common theme is that the legislation and draft regs will be a compliance burden on business and charities, and the regulations don't do anything to temper that.

From the article:

Unless the proposed regulations are reformulated, many worry that CASL will impede rather than facilitate e-commerce. It will hurt small and large businesses, cause significant economic harm and stifle innovation in the use of electronic messaging systems. It will hinder investment and job creation and drive new and emerging businesses to locate outside of Canada. Its red tape will be costly and inefficient to comply with.

I agree with that sentiment. The fundamental problem is the approach taken by the very lengthy and detailed legislation. Instead of focusing it's effect on what most of us would call spammers, it focuses on a very broad definition of spam. That definition includes email and other electronic communication that most of us would not consider to be spam. Which means that every business and organization in Canada has to pay attention to this legislation and take efforts to comply with the detailed requirements, or face the possibility of massive fines.

There is not, for example, a volume threshold. So 1 email sent to 1 person can be considered spam.

It would have been much less invasive, for example, if it allowed an opt-out process, and made it an offense to not follow that request. If the sender is a legitimate business or organization, it would follow that request. And most people would be satisfied to know that business X was not able to contact them again. 

In my view the regulations need to somehow make the law less intrusive, and less of a burden.

In the age of social media like Facebook and Twitter, school administrators are asking whether such electronic communication is appropriate between students and teachers. They are wondering where boundaries for such communication should be placed. Many school boards are choosing a strict path, forbidding or restricting any communication via social media between students and teachers.

Recently, the Missouri state legislature attempted to block contact between students and former students under age 18 and their teachers via social networking sites that provide “exclusive” access (a private, one-on-one means of communication). The overall goal of this law, the Amy Hestir Student Protection Act, enacted on July 14, 2011, is to protect school-aged children from sexual predators at school.

The ban reads like this:

No teacher shall establish, maintain, or use a work-related internet site unless such site is available to school administrators and the child's legal custodian, physical custodian, or legal guardian.

No teacher shall establish, maintain, or use a nonwork-related internet site which allows exclusive access with a current or former student.

The idea is to discourage teachers and students from communicating exclusively, without a parent, guardian or school administrator being able to access the message.

Republican State Senator Jane Cunningham, who sponsored the bill, told Huffington Post, "We are by no means trying to stop communication, just make it appropriate and make it available to those who should be seeing it," Cunningham said. "Exclusive communication is a pathway into the sexual misconduct."

Civil liberties groups and educators challenged this government initiative, and at the end of August 2011, a Missouri court granted a temporary injunction against the law’s enforcement, insofar as it affected teacher-student communications. According to Justia.com, the judge reasoned that the ban would chill free speech, and likely violate the First Amendment of the United States Constitution.

Missouri Governor Jay Nixon called for the state legislature to repeal the provisions of the law concerning student-teacher communications and come up with a better alternative. This new alternative would discard the social media ban, and instead would leave it up to school districts to come up with their own policies to “prevent improper communications” between school employees and students, including on electronic media. School districts will be allowed an extended deadline—March 1, 2012, instead of January 1, 2012—by which to adopt the new policies.

Read Legal Professor Anita Ramasastry’s strong argument in support of the judge’s injunction and her analysis of this new alternative.

Although this case is currently being debated in the United States, it is a topic of interest for all countries including Canada.

The Ontario College of Teachers’ regulatory board forbids its members from accepting Facebook friend requests from students. The "Professional Advisory on the Use of Electronic Communication and Social Media" outlines appropriate conduct for electronic messages, complete with explanations of criminal and civil law implications. Teachers are instructed to only communicate with students electronically during "appropriate times of the day and through established education platforms.”

Moreover, teachers must decline student-initiated online “friend requests” and never initiate a friend request with a student. They must understand that they are, in some ways, always on duty and bound by standards of conduct. The board asserts that when a teacher and a student become friends in an online environment, the dynamic between them is forever changed. An invisible line between professional and personal is crossed, which can lead to strictly forbidden informal conversations.

With the new advisory in place, teachers must know that if they post inflammatory comments via social media, they could find themselves in the unemployment line.

Note: the use of social media in the classroom is not prohibited. Teachers can continue to use social media to foster learning opportunities in class.

Ontario Teacher and educational technology blogger, Graham Whisen, takes a positive view:

The teacher-student relationship has always been one in which the teacher guides students through a process of discovery and learning. If social media supports this process, then why is it so inappropriate?

Social media allows teachers to reach students using the communication tools they use daily. It breaks down the walls of the classroom, showing students that learning happens everywhere and at all times. It allows students to collaborate together and facilitates communication. Most importantly, it connects students with each other and encourages them to have meaningful conversations about their learning.

However, Whisen doesn’t say precisely where he stands on teachers communicating with students via social media.

I’ve no doubt that this debate will continue for some time. And so it should—in public.

The advance of mobile technology and social media has opened up new channels of communication that are at least as common as email, and more ubiquitous. We’ve already accepted social media into our classrooms. Prohibited or not, it seems a foregone conclusion that students and teachers will use the new channels to communicate with each other. Student-teacher relationships can’t help but be affected by these cultural changes.

It remains to be seen whether these measures protect students from teacher predators or inappropriate relationships. While regulations are certainly important to warn and deter teachers from acting improperly and to describe disciplinary policy, teachers must make sure they act in a manner that befits their position. Responsible teachers can teach students how to act responsibly, in social media and everything they do.

Of the eight Canadian provinces and territories that have passed laws calling for fixed-date elections, five call for general elections to be held in October every four years. Those five jurisdictions will all hold general elections this October, as follows:

• Prince Edward Island, Monday, October 3, 2011
• Northwest Territories, Monday October 3, 2011
• Manitoba, Tuesday, October 4, 2011
• Ontario, Thursday, October 6, 2011
• Newfoundland and Labrador, Tuesday, October 11

Once the formalities have been completed—the legislative session dissolved and the election writ signed by the Lieutenant-Governor of each province or territory—the lawn signs can come out and political parties in each jurisdiction will kick their month-long campaigns into high gear with a long list of election promises.

Employers have certain obligations to employees under their respective Election Acts. An employee who is eligible to vote must be allowed a certain number of consecutive hours for the purpose of casting his or her vote. The number of consecutive hours depends on the province or territory. Meaning:

• In Ontario, Northwest Territories and Manitoba: three hours
• In Newfoundland and Labrador: four hours
• In Prince Edward Island: one hour

If employees have the required number of hours of their own time available during polling hours, then employers need not offer additional time for voting. If, however, an employee does not have this time available, the employer, upon request, must allow the employee enough time off with pay as stated in the law.

Employers have the right to decide when during the day is most convenient for granting any necessary time off. It is also important to note that employers are not required to take into account an employee’s travel time to vote.

Employers may not make deductions from an employee’s pay, require the employee to take a vacation day or sick day for the time taken off work by an employee to vote.

In Ontario and Manitoba only, the Act also provides for unpaid, job-protected leave for employees who wish to serve as returning officers or poll officials. In Manitoba the Act applies to those who wish to serve as a candidate, as an election official or enumerator, or as an election volunteer.

An Ontario employee must request such leave at least seven days before the leave is to begin. In Manitoba it is five days before the leave begins and the request must be in writing.

In Ontario, the Act does not limit the duration of such leave.

However, in Manitoba, a request for a leave may be made either before or after an election is called. The leave must not begin:

(a) In the case of a fixed-date election,

(i) Until 75 days before election day, for a returning officer, assistant returning officer or enumerator,

(ii) Until 40 days before election day, for a revising officer or revising agent, or

(iii) Until the election is called, for a candidate or election volunteer, or for an election official other than a returning officer, assistant returning officer, revising officer or revising agent; or

(b) In the case of any other election, until the election is called.

The employer may require the employee to provide written confirmation that he or she is eligible for the leave. A leave for a returning officer or assistant returning officer must not extend beyond the day a candidate is declared elected. The leave for any other election official, enumerator or election volunteer must not extend beyond election day and, in the case of an election official or enumerator, ends when the person’s duties under the Act are completed.

However, the request must include a statement that, within three days after receiving the request, the employer has the right to apply to the Manitoba Labour Board for an exemption to the requirement to grant the leave. An employer may request an exemption from the requirement to grant a leave under the Act, if the employer believes that the leave would be seriously detrimental to the employer’s operations.

Further, the employer shall not dismiss or otherwise penalize the employee because the employee has exercised the right to be granted leave.

In Manitoba, the penalty for preventing an employee from voting, impeding or otherwise interfering with an employee’s right to vote is a fine of not more than $10,000, or imprisonment for a term of not more than one year, or both.

In Ontario, the penalty for preventing an employee from voting, impeding or otherwise interfering with an employee’s right to vote is a fine of up to $5,000. If an employer is convicted of this offence and a judge finds that the offence was committed knowingly, the employer will be liable to a fine of up to $25,000, or imprisonment up to two years less a day, or both.

In Prince Edward Island, an employer is guilty of an offence if it refuses, or by intimidation, undue influence, or in another way, interferes with the granting to an elector in his or her employ, of the consecutive hours for voting provided in the Act. They may be liable on summary conviction to a fine not exceeding $2,000, imprisonment for a term not exceeding two years, or both.

In Newfoundland and Labrador, an employer is guilty of an offence if it refuses, or by intimidation, undue influence or in another way, interferes with the granting to an elector in his or her employ, of the consecutive hours for voting provided in the Act.

In the Northwest Territories, an employer is guilty of an offence if it refuses, or by intimidation, undue influence or in another way, interferes with the granting to an elector in his or her employ, of the consecutive hours for voting provided in the Act. They will be liable on summary conviction to a fine not exceeding $5,000, or imprisonment for a term not exceeding one year, or both.

Justice Secretary Kenneth Clarke announced today that Bills will shortly be introduced in Parliament to overturn prohibitions on cameras in the courtroom.

The media will only be allowed to film judges’ summary remarks only – victims, witnesses, offenders and jurors cannot be filmed.

Filming and broadcasting in court is currently banned under two Acts of Parliament and new legislation will need to be passed to allow cameras into the courts.

The Guardian reports that Clarke had intended to consult with senior judges but in recent days Downing Street had moved to circumvent this consultation process and support the change, whatever the judges thought.

In addition to allowing broadcasting, Mr Clarke announced that an unprecedented level of information about the performance of courts will be published in future to allow everyone to see how their local courts are working. This will include:

Court-by-court statistics for the time taken for cases to be processed, from offence to conviction, allowing people to compare the performance of their local courts

Details on how many trials were ineffective and why they were ineffective

Anonymised data on each case heard at local courts and the sentences given

Details of how many people have been convicted or released from prisons in each area and how often they re-offended afterwards

From next May justice outcomes will be placed alongside crime data on police.uk so people can see what happens next after crimes are committed in their areas

More information on how the civil and family justice systems, including how long it takes each court to process small claims hearings, larger cases and care proceedings.

They'll be having a bonfire with Reporting Restrictions in the Crown Court.

The new rules will apply in Wales. No solace to Gavin Hughes, who in April 2003, sitting in the public gallery of Merthyr Tydfil Crown Court, found himself in the dock after a police officer witnessed him taking a photograph of a defendant in the court using his mobile phone. He was brought before the judge and fined £250 for contempt of court. He apologised and explained that "I hadn't seen my friend for a while, so I took a photo of him for myself and to show his wife". Snapping the goings on in Merthyr Tydfil Crown Court will still be an offence unless he snaps the judge while summing up.

Not everyone is overjoyed at the prospect: Charles Harris, last year's president of the Council of Circuit Judges, also told BBC's Today:

A trial is actually an entity of various parts, and you can't legitimately split it up into bits and pieces.

What about a defendant who doesn't agree to [filming], is sentenced in the full light of publicity and then appeals and is acquitted?

Tory MP Roger Gale said

it risked turning justice into a reality show and providing a platform for "eccentric" legal professionals. Mr Gale, a former TV producer, said screening Parliament had resulted in grandstanding by MPs and a concentration on "juicy" extracts at the expense of less entertaining debates.

I believe that the televising of the closing speeches in law courts and the passing of sentences will create the same effect as thrusting barristers seek to impress the media with fee-improving performances and the more eccentric members of the judiciary use the TV platform to address the nation," he said.

The courts are supposed to be a place where justice is done and where it is, by those actually present and listening to the evidence, seen to be done. That must not be allowed to change. This is not about transparency or democracy, it is about television showbusiness and we do not need our law courts to be turned into yet another reality TV show."

England has more eccentric members of the judiciary than Canada – His Honour James Pickles and Mr. Justice Cocklecarrot come to mind immediately.

The 1925 Criminal Justice Act states:

41 Prohibition on taking photographs, &c., in court.

(1)No person shall—
(a)take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or
(b)publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof;and if any person acts in contravention of this section he shall, on summary conviction, be liable in respect of each offence to a fine not exceeding fifty pounds.
(2)For the purposes of this section—(a)the expression “court” means any court of justice, including the court of a coroner:(b)the expression “Judge” includes . . . F38, registrar, magistrate, justice and coroner:(c)a photograph, portrait or sketch shall be deemed to be a photograph, portrait or sketch taken or made in court if it is taken or made in the court–room or in the building or in the precincts of the building in which the court is held, or if it is a photograph, portrait or sketch taken or made of the person while he is entering or leaving the court–room or any such building or precincts as aforesaid.

The Contempt of Court Act 1981 states:

9 Use of tape recorders.

(1)Subject to subsection (4) below, it is a contempt of court—
(a)to use in court, or bring into court for use, any tape recorder or other instrument for recording sound, except with the leave of the court;
(b)to publish a recording of legal proceedings made by means of any such instrument, or any recording derived directly or indirectly from it, by playing it in the hearing of the public or any section of the public, or to dispose of it or any recording so derived, with a view to such publication;
(c)to use any such recording in contravention of any conditions of leave granted under paragraph (a).
(2)Leave under paragraph (a) of subsection (1) may be granted or refused at the discretion of the court, and if granted may be granted subject to such conditions as the court thinks proper with respect to the use of any recording made pursuant to the leave; and where leave has been granted the court may at the like discretion withdraw or amend it either generally or in relation to any particular part of the proceedings.
(3)Without prejudice to any other power to deal with an act of contempt under paragraph (a) of subsection (1), the court may order the instrument, or any recording made with it, or both, to be forfeited; and any object so forfeited shall (unless the court otherwise determines on application by a person appearing to be the owner) be sold or otherwise disposed of in such manner as the court may direct.
(4)This section does not apply to the making or use of sound recordings for purposes of official transcripts of proceedings.

Profiling the behaviour of air travellers to help identify potential terrorists has been news in the United States for several years now, but there has been little public discussion of the practice in Canada. Indeed, airport authorities haven’t included profiling among their security tools here, until last year when the federal government began developing a pilot “passenger-behaviour observation program” for Canadian Air Transport Security Authority officers.

Now that the pilot program has ended, the Office of the Privacy Commissioner of Canada is making her position known. Jennifer Stoddart says she's not convinced the technique will actually help screening officers pinpoint genuine threats to national security.

The six-month pilot project at Vancouver airport concluded in July. In January 2010, the Government of Canada asked the Canadian Air Transport Security Authority (CATSA) to design a passenger behaviour observation program proposal, in order to respond to the continued threat of terrorism and evolving terrorist methods. CATSA completed its design phase in the New Year.

ASERO Worldwide, based in Washington, D.C., was hired to train Canadian airport employees in the art of detecting the suspicious behaviour of would-be terrorists or criminals.

The project involved about 20 uniformed observation officers roaming the airport, being posted at checkpoints in the queuing areas, scrutinizing and sometimes interacting with passengers regardless of race, gender, age and religion. The officers were looking for such suspicious behaviour or actions as a traveller wearing heavy clothes on a hot day, paying unusual attention to the screening process or sweating profusely; these actions could indicate deception.

CATSA, which oversees air passenger screening, is analyzing data from the trial and preparing a formal assessment of the program's impact on privacy.

Although the Office of the Privacy Commissioner of Canada and the Canadian Human Rights Commission were consulted from the get go, Stoddart is not waiting for the formal assessment to come to the conclusion that arbitrary judgments will come into play and make the process unfair and be intrusive to air passengers. She also believes the program will be introduced without valid "scientific basis".

Stoddart further stated that a scientific consensus does not exist on whether behavior-detection principles are reliable for counter-terrorism purposes.

On the other hand, Transport Canada insists this methodology is based on decades of research that shows there are "certain involuntary, subconscious actions that can be indicative of deception."

The transport agency says other countries have been using this method successfully for years, or developing similar initiatives, for example, in the United States, Australia, Hong Kong, Indonesia, Israel, Russia and Singapore.

Although, passenger behaviour observation can provide an additional layer of security to Canada’s aviation system that focuses on identifying irregular or suspicious behaviour and not racial or ethnic profiles, many believe that it will be used for racial profiling. Internal Transport Canada briefing notes, obtained under the Access to Information Act, acknowledge that passenger behaviour observation has "complex operational, policy, legal, and privacy and human rights dimensions."

This is only one of the security measures CATSA has implemented or is looking at in the name of national security (others include full body scanners, new identification programs, mandatory passports to fly overseas, biometrics embedded in passports, airport screening personnel, and more).

Without a doubt, to me anyway, passenger behaviour observation will require some type of profiling to be successful and cannot help but be intrusive. But in our day and age, this may be inevitable.

However, it’s not clear to me that the right person to perform the behavioural observation is a security officer who stands around and watches from a distance. Passengers interact with numerous officials from the time they enter an airport to the time they get on a plane, from the check-in clerk who provides your boarding pass to the gate attendant who checks your passport and ticket, and various security screeners in between. Any or all of these workers could be trained to scan for questionable behaviour without making passengers nervous. Gate attendants in particular look at a passenger’s ticket and passport and talk to the individual as part of their regular duty.

Furthermore, I am not sure that a six-month trial period in one airport is time enough to gather convincing data to confirm the need or validate such a potentially intrusive screening program.

Finally, few people in government or the media are commenting on whether such measures as behavioural profiling and full-body scanners are actually making airports and air travellers safer. Threats to travellers through Canadian airports have been detected without these methodologies, and it is not clear that authorities could not continue as they have. So the questions are: Can officials observe passenger behaviour without profiling? Will such observation work as intended?

Over the financial crisis of 2008 and 2009, the media in Quebec experienced an unprecedented upheaval, which resulted in the closure of certain newsrooms, downsizing in others, and lock-outs at some newspapers that had difficulty renewing collective agreements, among other things. The financial problems highlighted the growing problem traditional media face in the new age of communication, when television, the internet and video games rule the day, and free and instantaneous access to information is the norm.

In late 2009, the province’s Culture and Communications Minister, Christine St-Pierre, mandated Dominique Payette (links in French unless otherwise noted), a former CBC journalist and now professor at the Universite de Laval to study strategies for strengthening the province’s media in the face of new communication technologies, such as social media and mobile apps, among others.

Payette presented her final report (in PDF) last January. In it, she made 51 recommendations, including:

• Creating a law that would regulate who can be called a “journalist” by organizing a professional corporation to control admission; the Quebec Press Council would become a full-fledged regulator
• Requiring membership by all news organizations in the Quebec Press Council
• Demanding language testing for all those seeking such accreditation (meaning passing a French language test)
• Giving “accredited” journalists preference over non-accredited journalists on matters ranging from government information flow to protection of sources
• Establishing a regime of public subsidies for members of the Quebec Press Council

This month, St. Pierre announced that the government is following up on two of the recommendations. The ministry will hold public hearings in 10 cities from October 6 to November 21, 2011, to collect feedback on regulating the media in Quebec by adopting a professional journalism accreditation and consolidating the Press Council.

The ministry prepared a document to help the public understand what is at stake and assist them in contributing to the debate. This document can be found here.

The worry for the Quebec government, and I am sure others as well, is that new communications technologies, such as blogs and social media, are leading to confusion among the public: who are journalists? And what is journalism?

As a result, the ministry wants to differentiate “professional journalists” from amateur and citizen journalists, sometimes referred to as amateur communicators, such as bloggers.

But do we really need the help?

Some critics of the plan fear that the government’s efforts to organize the media amount to regulation of communication and free speech in Quebec, which could lead to greater censorship.

At the time the report was tabled, Quebec English weekly newspaper The Suburban worried that “A weapon such as this in the hands of a government will give it the power to silence any opposing voice simply by influencing the 'professional corporation' it gave birth to to deny 'accreditation.’”

According to the Montreal Gazette (article no longer available), the Fédération professionnelle des journalists du Québec (FPJQ) supports some of Payette’s recommendations, but it doesn't want to see restrictions on who can act as a journalist. Other recommendations include strengthening protection for confidential sources and improving journalists’ ability to access government information.

"Journalism remains open to everyone by the right of freedom of the press and expression,” the FPJQ said in a press release.

What do you think? Is the government right to try to prop up the traditional media industry (i.e., newspapers and magazines)? Is this the right way to do it? Will accredited journalists and reporters produce better quality work than others? Is it fair to require journalists to take a language proficiency test?

Corruption in government and business can occur everywhere; no country is totally immune. (See, for example, Transparency International's Corruption Perception Index.) But in some countries and in some industries the demands for bribes and kickbacks or the promise of favours for favourable decisions are a serious reality. Governments that wish to halt or hinder corruption have passed anti-bribery and corruption legislation, proscribing not only corrupt acts that take place within their jurisdiction but also acts that take place ex juris if committed by their nationals or businesses incorporated within their jurisdiction. Britain's Bribery Act 2010, which came into force last month, is likely the strongest law with such a foreign reach, followed closely by the much older but vigorously enforced US Foreign Corrupt Practices Act.

Of course, companies that do foreign business are not just followed, as it were, by their own nation's laws but also find themselves governed by the law of the place where they transact. What might be customary or acceptable behaviour at home could turn out to be illicit abroad — or vice versa: mores, morals, and "must-not"s lie on a continuum, so it's not always clear where on this slope one is located. To assist those who do business in Europe, London-based CMS Cameron McKenna LLP regularly updates its "Anti-bribery and corruption laws – An international guide" [PDF] for 31 European countries. This is not detailed legal analysis but, rather, a handy chart of principal comparison points. So, for example, one item asks "Would corporate hospitality be caught?" In Switzerland the answer is:

According to Article 322octies StGB advantages to public officials are not undue when allowed by staff regulations or when they are of minor value in accordance with social custom (e.g. if a company bears the costs of a business lunch with public officials)

In the Netherlands the answer "depends upon intent." In other countries the answer is apparently, "Yes."

Comparable Canadian legislation is the Corruption of Foreign Public Officials Act S.C. 1998, c. 34, which has not been as vigorously enforced as it might be, although there are signs this may be changing : see "Importance of Anti-Corruption Due Diligence for International Transactions" by Morrison, Dixon, Sosnow & Neave; and the more recent "Canada's Corruption of Foreign Public Officials Act shows its teeth" by Paul Beaudry.

There was a time when the Catholic Church (and others) didn’t have to appeal to the earthly law in order to enforce its demands. The church’s doctrine was the law, and its leaders the judges, jury and executioners. Thankfully, that is no longer the case, and in modern democracies, church is separate from the state, the rule of law rests in the hands of legislators elected by citizens and judges chosen for their knowledge and prudence, rather than their adherence to dogma (in Canada anyway).

As a result, churches cannot simply impose their will on society any more; they cannot say and do without qualification all the things they believe their dogma requires of them; and when someone offends them, they have to make their cases before courts like other citizens. The Catholic Church in particular walks a fine line when it comes to demands for freedom of religious expression and freedom of speech. A current appeal before the Supreme Court of Canada puts these rights in question.

The Saskatchewan Human Rights Commission’s appeal of the Whatcott freedom of expression case (PDF) to the Supreme Court of Canada is scheduled to be heard in October 2011. I am following it very closely and have written about it and related issues previously on Slaw, here, and here. The aim of the appeal to the Supreme Court is to obtain direction on the proper balance between the rights to free expression and freedom from the harmful effects of publications that incite discriminatory actions or contain extreme discriminatory words and images.

The Catholic Civil Rights League (CCRL) has been given intervenor status and has tabled its factum (now available online). The CCRL and 22 other groups, including the Evangelical Fellowship of Canada and the Christian Legal Fellowship believe this case will determine the fate of religious freedom and free expression. Meaning, they hope the Supreme Court will strike down the laws that allow human rights commissions (or tribunals) to limit freedom of speech and religious expression.

According to the CCRL, at stake is the right for Catholics and other Christians who believe church teaching about human sexuality and morality (specifically, teachings against homosexuality and same-sex unions) to speak publicly about their beliefs. The Catholic Civil Rights League is not defending the merits of Whatcott’s views or “the language he chose to express those views”, but is concentrating its arguments on the way “unpopular opinions” have been labelled “hate speech” under the law.

In its factum, the CCRL argues that Section 14 of the Saskatchewan Human Rights Act is confusing, contradictory and cannot be reconciled. Section 14(1) lists many forms of speech that are restricted in Saskatchewan under the law.

14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that he owns, controls, distributes or sells, any representation, including without restricting the generality of the foregoing, any notice, sign, symbol, emblem, article, statement or other representation:

(a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons of any right to which he is or they are entitled under law; or

(b) which exposes, or tends to expose, to hatred, ridicules, belittles or otherwise affronts the dignity of any person, any class of persons or a group of persons; because of his or their race, creed, religion, colour, sex, sexual orientation, family status, marital status, disability, age, nationality, ancestry, place of origin or receipt of public assistance.

Section 14(2) says that nothing in subsection (1) restricts the right to freedom of speech under the law.

The CCRL says the subsections cannot be harmonized. Thus, they cannot and should not be enforced, and should be invalidated.

The CCRL also argues that:

• Section 14 of the Saskatchewan Human Rights Act is not consistent with the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression in Section 2(b)
• Section 14 infringes on freedom of expression
• This infringement is not justified under section 1 of the Charter which states that the Charter is subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

Freedom of religion is a constitutionally protected right, allowing believers the freedom to express themselves without limitation or interference, similar to the protection that exists in the United States. But freedom of expression has limits, particularly when it comes to citizens’ right to be free from discrimination and discriminatory hate speech. Thus, the current idea of religious freedom as a human right remains a contested topic. The actions of private individuals are largely governed by the provincial human rights codes. These codes prohibit discrimination in various areas, such as employment, on the grounds of a variety of personal characteristics, including religion.

The Catholic Church was not always such a keen defender of freedom of religion or freedom of speech. For example, the Roman Catholic Church kept a tight rein on religious expression throughout the Middle Ages; consider the Spanish Inquisition when anti-church dissent was quashed and the unfaithful (i.e., non-Catholics) were expelled from Spain or killed. More recently, and closer to home, there is the influence the Catholic Church had on the province of Quebec (and continues to have in some regions); clergy not only exercised a top-heavy influence on their followers by keeping them in relative ignorance, but also by isolating them from the rest of the world, which contributed to the increasing economic inferiority which came to mark the province and remained severe until the recent past.

At those times, the church believed there should be limits (reasonable or not) on individuals’ rights to express themselves if that expression was contrary to the doctrine of the Catholic Church and religious beliefs.

How things change when we lose a great amount of influence and power! We will see how much influence the intervenor churches continue to exert over society as this appeal unfolds.

The papers recently carried the news of the death of Paul-André Crépeau, C.C., O.Q., c.r., LL.D., D.h.c., m.s.r.c., who I would argue was the most influential law reformer in Canadian legal history.

From the initial invitation in 1965 from Jean Lesage's Justice Minister Claude Wagner to take over the Office de Révision du code civil, originally set up during the Duplessis years with Thibaudeau Rinfret and André Nadeau, Crépeau's vision and his life work was la révision du Code civil, and under his leadership the Office focused on the daunting task of updating the general provisions of a century-old Code. The Office de Révision du code civil was originally set up during the Duplessis years with Thibaudeau Rinfret and André Nadeau, but only really blossomed with Crépeau.

Crépeau's background was unusual for someone who was so closely identified with the civil law tradition. He was born in rural Saskatchewan, and obtained his Licence in Philosophy at the University of Ottawa (1947), followed by a B.C.L. at the Université de Montréal (1950). He won a Rhodes Scholarship that took him to study common law and comparative law at the University of Oxford and a Bachelor of Civil Law (1952) and a doctorate at the Université de Paris (1955). He began his career as an assistant professor at the Université de Montréal Faculty of Law (1955-1959), and soon after joined the McGill University Faculty of Law (1959-1994), and after that a doctorate in classical civil law from the Université de Paris. He had six earned degrees and seven honorary doctorates, and was honoured with a Festschrift on his retirement. He was justly honoured in Ottawa and Québec

In 1965, Professor Crépeau was entrusted by the Québec government to reform the Civil Code. As the president of the Civil Code Revision Office, he aspired to create a work that would serve as a “collective reflection on the very foundations of private law institutions”. In 1978, this work culminated as a presentation to the National Assembly of the Draft Code Civil, accompanied by explanatory Commentaries. It served as the framework for the project (bill) which eventually became the new Civil Code of Québec, adopted in 1991 and came into force on 1 January 1994.

The story of the new Code is one that is known to too few Canadian lawyers – a helpful interview can be found here. The Justice Minister at the time the new Code was implemented, Gil Rémillard, was justly proud of the project, but he was at most the sage homme – and Crépeau and his team, the ones who did the intense intellectual study and design, that resulted in today's Code.

Radio Canada's obituary is here, and the Law Faculty's here.

He dedicated his professional life to studying and developing Canadian civil law from a comparative law perspective as well as to promoting the French-inspired civilian tradition, in Canada as well as internationally. With a hat tip to my colleague – and occasional blogger – Alejandro Manevich, here is a cartoon from the Barreau's Journal this month, which illustrates the point.

After his work on the Code, he dedicated his work to the Centre de recherche en droit privé et comparé du Québec, which has a remarkable set of publications.

Peut-il reposer en paix.

I am sorry to report that @ordersincouncil, a twitter stream with 318 followers and 25 listings seems to have gone silent. No ceremony, no fanfare, no last word, no announcement. The account sits, with a lovely background, the descriptive tagline "Monitoring updates to Privy Council Office listings of cabinet orders," and a last tweet from May 2011.

I was among those who found tweets of federal Orders in Council extremely useful. I was happy to weed through tweets on government appointments and interesting tidbits like tax remission orders among the regulations and proclamation announcements that were of true interest to me.

I guess it's back to the PCO Secretariat Orders in Council database search and monitoring the Canada Gazette as sources for this information.

I will miss you @ordersincouncil, you were a handy tool. I was hoping you were just on vacation.

Those of us Canadians who live in Toronto or Vancouver know not to be smug about England's riots; we've been there recently, albeit on a smaller scale, thankfully. We might, however, be in a good position to reflect on the question of why people riot, or, to put it impersonally, because a mob does seem to deprive its members of effective personhood, what makes a riot. On a personal note, I can attest to this mob mentality, having been in a riot in my youth — one, I might add, that had absolutely no good pretext and was formed entirely of over-privileged individuals.

The assigned pretext in each case — Toronto, Vancouver, London — is different, suggesting that more is at work here than a simple casus belli. In Toronto, the riot was said to be in some sense caused by deliberate, middle-class political action in opposition to the G20 gathering; in Vancouver, the pretext was the loss of a hockey championship; and in London, the riots are seen to be a response by the underclass to exclusion and hopelessness.

I've come across an old piece done in the aftermath of the Los Angeles riots from the Cato Journal, an organ of the Cato Institute. In Understanding Riots (the Cato Journal, vol. 14, no. 1, Spring/Summer 1994; PDF version here), David Haddock and Daniel Polsby explore the elements necessary for riots to take place. (Though the Cato Institute is quite right wing, this piece is largely free of polemics.) Here in extremely brief form are their main points:

• A crowd must assemble.

  This usually happens around a "Schelling incident" — an event that tells people to gather and operates as a substitute for overt leadership and communication. It may be a positive or negative event. But people know that others will be there and that they share an initial focus. But this is a crowd, and not all crowds turn into riots.

• There needs to be an initiator (an "entrepreneur" the authors call him).

  People are averse to sticking out of the crowd and possibly courting arrest — "I'll wait for someone else to go first," the free rider problem. Someone must "throw the first stone" and that person will do so when he calculates that his chances of arrest have diminished to an acceptable level. Say the authors, "Riots await events that surmount the free rider problem."

• Action nodes form.

  People need to know where the action is or is likely to be. In various cities certain locations act as "intuitive" meeting spots, or media may unwittingly assist in identifying action nodes.

• Reputation plays a role.

  If you've a reputation to lose by getting caught rioting, you're less likely to participate. Those with no bourgeois reputation at risk — the young, the poor, those who endure racial ghettoization, for example — or those whose reputation may depend upon lawless or violent acts are most likely to riot.

• Stopping a riot is hard.

  Police lack the numbers necessary to stop a riot in full swing; and they're not licensed to use the sort of brutality that could halt it quickly. Critical is the ability to discover and smother action nodes quickly, by removing the entrepreneurs who would initiate violence.

Riots have always been with us and have proven such a threat to civil order that special laws exist to address that specific threat. (Whether or not they are effective is another matter.) I'm thinking of what is commonly known as the Riot Act, of course. In Canada, you'll find it in the Criminal Code. The Code describes three levels of civil disorder, increasing in seriousness. First, there is an "unlawful assembly", participation in which is a summary conviction offence:

s.63(1) . . . three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they (a) will disturb the peace tumultuously. . .

If the unlawful assembly bears fruit, that is, if it does in fact lead to a tumultuous disturbance of the peace, it then becomes "a riot" (s.64); taking part in a riot is an indictable offence with a maximum sentence of two years imprisonment.

Then comes level three, a consequence of reading the Riot Act to the riot:

s.67 A person who is (a) a justice, mayor or sheriff, or the lawful deputy of a mayor or sheriff . . .

who receives notice that, at any place within the jurisdiction of the person, twelve or more persons are unlawfully and riotously assembled together shall go to that place and, after approaching as near as is safe, if the person is satisfied that a riot is in progress, shall command silence and thereupon make or cause to be made in a loud voice a proclamation in the following words or to the like effect:

Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life. GOD SAVE THE QUEEN.

(Note that the assembly must have increased in size from the minimum of three to a minimum of twelve.) Once the proclamation has been read (or would have been read if the designated person hadn't been forcibly prevented from reading it), the rioters have thirty minutes to depart as ordered, or face the possibility of conviction for an offence with life imprisonment as its maximum sentence (s.68).

I've not heard or read that the "Riot Act" has been read in London or was read in Toronto or Vancouver. Yet it seems clear from the Code that there is an obligation on the authorities to make the proclamation and elevate the seriousness to the third level.

The Alberta Information and Privacy Commissioner recently confirmed that Alberta Health Services (AHS) breached the rights of one of its employees by intentionally using information from his addiction counselling against him during a human resources investigation. The breach of the employee’s personal health information clearly contravened the Health Information Act (HIA).

So what happened?

After receiving a referral from his psychiatrist, the complainant attended addiction counselling with AHS, which also happens to be his employer. He signed a consent form agreeing that the counsellor could contact the employee’s treating physician and collect information aimed at his treatment. Specifically, the consent stipulated that the information disclosed and collected was to allow AHS to provide him with continuous care, treatment planning and treatment services.

However, instead of treating the complainant as a patient, the counsellor treated him as an employee. The counsellor, worried about Alberta Health Services Code of Conduct, gave all of the employee’s personal health information collected during the counselling sessions to the AHS human resources department. Based on the employee’s addiction and the health information provided, the human resources department conducted an investigation to ensure the fitness of the employee to continue his duties.

This investigation came after the AHS had made repeated requests for the employee to self-report. So before they had proof of his addiction they suspected as much.

As a result of the HR investigation, the employer suspended the employee. Then, the employer gave the information to the employee’s professional body. The decision doesn’t state what happened to the employee after the suspension period ended. I am presuming the employee is still working for AHS and the professional body did not use the information. Well, we hope!

The point is, and this was confirmed in the decision, the complainant did not authorize his treating counsellor to collect or use his personal health information for any other purpose but treatment of his addiction. However, the employer used the information for a human resources investigation to discipline the employee based on a violation of the code of conduct, not to provide treatment or health services as stated in the consent form.

The counsellor misunderstood the meaning of section 27 (1) (c) of the Health Information Act, which allows the use of a patient’s health information from a health service provider for the purpose of investigating the health service provider’s conduct, but does not authorize use of the health service provider’s own health information for that purpose.

The complainant provided this health information to AHS as a patient, and AHS was a custodian of the health information. Therefore, AHS could not use this personal information to manage personnel. AHS could only use the health information that is in its custody and control by virtue of its role as a custodian, and only for the purposes specified in the HIA. The HIA and Freedom of Information and Protection of Privacy Act do not authorize a public body that is a custodian to collect or use such information for personnel management. Based on the Information and Privacy Commissioner's analysis of the law, this purpose is clearly excluded under both Acts.

In addition, when the employer disclosed the findings of the disciplinary investigation and the addiction to the employee’s professional body, the employer violated the Act again because the information was personal health information that should never have been disclosed.

Saskatchewan, Manitoba, Alberta, British Columbia, New Brunswick, Newfoundland and Labrador, Quebec and Ontario have passed legislation to deal specifically with personal health information by public and private sector health care providers and other health care organizations. These health information privacy statutes apply, directly or indirectly, to agents who act for health care custodians, as well as to service providers that manage information, such as data storage and system management providers. The statutes generally require custodians to notify and obtain express consent from patients for all collection, use or disclosure of personal health information.

Each statute contains provisions entitling patients to access their personal health information in the custody or control of a custodian (subject to limited exceptions), and limits access to (and the use of) health information within a custodian’s organization. With detailed, limited exceptions, each statute prohibits disclosure for purposes other than those to which a patient has consented.

Moreover, maintaining patient confidentiality is a very important legal duty with very few exceptions.

Misunderstanding or not, the counsellor in this case made a grave error, and both the counsellor and the HR department at AHS should have thought twice before using the employee’s personal health information, especially given that the employee in question was employed by the service providing him with the counselling.

The Saskatchewan Human Rights Code Amendment Act, 2010, S.S. 2011, c. 17 (former Bill 160), was proclaimed in force on July 1, 2011. The overall purpose of the Act is to make the human rights complaints process more timely and flexible by streamlining the process for dealing with complaints and allowing more cases to be resolved without litigation.

A major and, according to some, welcome change is the elimination of the Saskatchewan Human Rights Tribunal and the transfer of the tribunal's powers to the Saskatchewan Court of Queen's Bench, which will hear complaints that cannot be resolved by alternative dispute resolution methods.

According to the government, human rights cases that can’t be resolved by mediation are too important and should be heard by full-time judges whose neutrality and fairness are guaranteed by their judicial independence.

In addition, a person must provide “sufficient evidence” that reasonable grounds exist for believing that someone has contravened the Code when a complaint is brought. Previously, a person only needed to believe that reasonable grounds existed to bring a complaint.

Section 48 of the Code has been significantly modified. Employers may now implement a "reasonable and justifiable measure" designed to prevent, eliminate or reduce disadvantages for groups who suffer disadvantages based on one or more of the prohibited grounds of discrimination under the Code. These measures may now be undertaken on a permissive basis, removing the old requirement to get a formal exemption from the Commission. Any measures an employer undertakes may be subject to a human rights complaint.

Additional changes include:

• Allowing more complaints to be dealt with by alternative dispute resolution processes, such as mediation
• Allowing the Human Rights Commission to seek more information about a complainant before commencing the complaint resolution process
• Allowing the chief commissioner to require the parties to attempt mediation before holding a hearing
• Allowing the chief commissioner to dismiss a complaint, where the complainant refuses to accept a reasonable offer of settlement made by the respondent
• Reducing the limitation period for filing a complaint, from two years to one year

Furthermore, appeals of the Commissioner’s treatment of a complaint must be made to the Court of Queen’s Bench at the complainant’s own cost.

The Saskatchewan government is proceeding to implement the above changes and looking at the Manitoba model of complaint resolution.

Manitoba has two mediation processes:

• Pre-Complaint Mediation/Conciliation: This option is voluntary and available before a formal written complaint is filed. Conciliation takes place by telephone. Both parties must participate. The terms of the settlement are confirmed in writing to avoid any misunderstandings. If the parties don’t comply with the terms, the commission may look further into the matter and formalize a complaint.
• Directed Mediation: This option occurs after a formal complaint is filed and mediation has not settled the matter. An investigation is started, and, once completed, a report is submitted to the board of commissioners. If the board deems there is sufficient evidence to warrant the complaint, it may send it to mediation for resolution or may call for a hearing.

If mediation fails, and the complainant did not unreasonably reject an offer of settlement, the board will direct a hearing. The commission lawyer will represent the complainant.

The choice of Manitoba as the standard is based on that province’s success rate with human rights complaints: 98 percent are settled by resolution and agreement without litigation, prosecution or tribunals. According to statistics provided by the Saskatchewan Human Rights Commission, in the last two years, Manitoba has conducted only three human rights prosecutions.

The point is, the aim of the commission is to have a mediation process that is able to resolve any complaints and disputes allowing them to resort to prosecution only when necessary. We can only hope that the new process will work as well for Saskatchewan as it does for Manitoba, in numbers and in practice. Maybe that would please both the human rights crusaders who support the tribunal model and the others who feel the tribunal model is flawed.

One important question remains unanswered: If the process is working so well in Manitoba, why aren’t more provinces emulating it?

R v. Imperial Tobacco Canada Ltd., 2011 SCC 42 is necessary reading for all Canadian lawyers giving advice about any aspect of private law obligations.

This case fits very nicely into our discussion about the need to avoid ambiguity in statements about law. It also shows how often ambiguity in the language actually used is too often associated with the writer(s)' apparent confusion relating to the meaning of the concepts discussed.

Maybe the Court meant to make some of the assertions that the text of the reasons literally makes. And maybe they "misspoke" themselves.

Time will tell. 

But, in the meantime, that time may line the pockets of some lawyers. Those of us who are litigators, and end up on the right side of that time, have nothing to complain about, right? This is a good thing, no?

DC

On July 15, 2011, several workers showed up to work as usual at IQT Solutions, only to be told that their employer had unexpectedly shut down its Canadian operations: three call centres, one in Ontario and two in Quebec. About 1,200 IQT employees were suddenly unemployed with no final paycheque, vacation pay or notice of termination.

IQT Solutions is a United States-based call centre that offers customer support services to a variety of companies in North America and Europe.

According to news coverage that developed after the shutdown, it was revealed that the City of Nashville, Tennessee, had granted IQT a US$1.6-million incentive to build a new 60,000-square-foot call centre and headquarters there to employ 900 locally. One of the conditions of receiving the grant was for IQT to explain to Nashville officials its business strategy in Canada. I guess instead of explaining their strategy to ensure the award of the grant they just decided to get rid of the “obstacle”. In addition to the abrupt shutdown of their Canadian operations, IQT Canada said they filed bankruptcy papers. However, a records search by government officials revealed no official filing of bankruptcy.

Due to the media coverage and social media attention on Facebook and Twitter, the City of Nashville has chosen to withdraw its $1.6 million promise to fund IQT Solutions’ new operation in Tennessee.

An official with the City of Nashville stated in the Nashville Post:

We are no longer in conversations with IQT regarding locating their operations here. We spoke with the company last night, and it appears unlikely IQT will move forward with its proposed operations in Nashville. We are disappointed these job opportunities won’t be available to Nashvillians, but it is important to point out that no incentive dollars were expended. We are dismayed about what happened in Canada and don’t think workers anywhere should be treated that way.

Both provincial labour ministries (Ontario and Quebec) are currently helping IQT’s former employees, investigating the circumstances and trying to recover the unpaid wages and grants paid out.

Many questions have been raised by human resources professionals and employers pertaining to the rights of IQT’s former employees, IQT's obligations toward these employees.

This is not the first time these questions have been asked, and it does raise some interesting legal, practical and ethical issues. According to statistics (2005) that were used to recently amend the Bankruptcy and Insolvency Act, every week in this country there are roughly 200 commercial bankruptcies, 1,000 bankruptcies a month, and roughly 10,000 bankruptcies per year, many of which leave behind employees who are owed back wages, benefits and pension contributions. We can only estimate the total figures, but over $1 billion per year is a number that has been used.

According to a December 2004 speech in the House of Commons by Brian Masse, the NDP MP for Windsor West at the time:

It is workers who pay the price when workplaces shut down. This is especially true when these shutdowns are triggered by bankruptcy, because not only do the employees lose their jobs and their source of income, they also often lose wages that they have not been paid, and vacation pay, termination pay and severance pay.

This statement is still true in 2011.

What are the ethical procedures and employer obligations involved in communicating to employees pre- and post-bankruptcy?

It is generally accepted that employees are vulnerable creditors. They usually lack the necessary information to assess the potential risk of their employer going bankrupt, and they have limited bargaining power to protect themselves. Currently there are no obligations in legislation that require an employer to notify employees or the trade union that the organization is in financial distress, or that it is insolvent and considering filing for protection or bankruptcy. Consequently, bankruptcy is often an unexpected event with disastrous results, because employees cannot take steps to lessen the impact when they lose their primary source of income.

However, with all the recent high profile cases of fraud and bankruptcy, several industries and the broader business world have been confronted with corporate misconduct, accounting irregularities, bankruptcies and an erosion of confidence and trust on the part of employees and investors. The tide is changing; regulators are calling for organizations to establish a reputation for maintaining the highest standards of business behaviour, conduct and corporate governance. Customers, employees, suppliers and investors must be able to rely on an organization’s integrity.

Governments are focusing on directors and companies’ business operations, including areas of risk exposure (e.g., executive compensation and related party transactions), demanding meaningful and comprehensive reporting from all directors and management levels. There is also a greater focus on directors for the company's continuous disclosure, including quarterly and annual reporting and press releases, as well as regular review of corporate governance policies, controls and procedures to ensure that they represent best practices and that organizations are complying with them. This focus aims to build a new sense of commitment to strong corporate values, improved communication and the need for leaders who demonstrate through personal action that they are dedicated to creating an internal environment grounded in trust, openness and integrity.

An organization that is insolvent or files for bankruptcy (whether for protection from creditors under the Bankruptcy and Insolvency Act or to restructure or reorganize) damages their credibility. Such an organization will have to work hard to rebuild public trust. It might start by working on communications issues surrounding damaged credibility, management transitions, bankruptcies, litigation, regulatory actions, rumour management, earnings shortfalls, restructurings and product liability situations. It should establish a crisis communication policy dealing with damage control and responses, specifically ongoing feedback and communications services designed to preserve or rebuild client/employee credibility once the actual crisis has been contained.

So what can the Ministry of Labour do?

Briefly put, under Canadian employment/labour standards, employment is terminated if the employer dismisses or stops employing someone, even when it is due to the employer's bankruptcy or insolvency. An employer that is insolvent, that fails to pay its employees or that shuts its doors, might not be bankrupt. Employees must find out for sure if their employer really is bankrupt and obtain the name of the bankruptcy trustee.

Notwithstanding the above, these terminated employees are entitled to notice of termination depending on the length of employment, all outstanding wages, accrued vacation pay and records of employment to collect employment insurance.

The Ministry of Labour cannot recover wages on behalf of an employee if the company is bankrupt. Complaints against insolvent employers (i.e., an organization that does not have enough assets to cover its debts, or is unable to pay its debts as they become due) are still handled through the Ministry of Labour.

If the company is not bankrupt, but closed its doors because it is insolvent and has not yet asked for protection from creditors under the Bankruptcy and Insolvency Act, the employee must recover unpaid wages via the Employment Standards Branch of their jurisdiction by filing a complaint. The Employment Standards Branch will then demand that the employer provide payroll records. If the records show the employee is owed money, the branch will issue a determination and try to collect money on the employee's behalf. If the company fails to comply, prosecution is possible, depending on the company’s status.

If the employer is bankrupt, the bankruptcy trustee is responsible for ensuring all creditors, including employees, receive information about the money owed to them. Under the trustee's control, a company may be reorganized, sold or its assets may be liquidated to pay creditors. In the case of employees, the Bankruptcy and Insolvency Act provides a measure of protection to wage earners. The Wage Earner Protection Program (WEPP) under the Bankruptcy and Insolvency Act provides guaranteed and timely payment of unpaid wages, vacation pay (on or after July 7, 2008), as well as unpaid severance and termination pay to eligible workers (on or after January 27, 2009) whose employers go bankrupt or are in receivership, up to an amount equalling four weeks maximum insurable earnings under the Employment Insurance (EI) Act (currently about $3,000).

In addition, under the Bankruptcy and Insolvency Act's "limited super-priority" provision, the employee's unpaid wage claim is put ahead of secured creditors over the current assets of the bankrupt employer's estate.

The limited super-priority provision supports and complements the WEPP. Individuals who apply to the program will sign over their wage claim rights to the federal government for the amount that they receive from the program. The government in turn will assume the interests of wage earners against the bankrupt employer.

An individual who does not qualify for payment from the WEPP will be able to pursue the wage claim through the limited super-priority provision and the existing preferred creditor status up to a $2,000 cap.

Employees who are covered under a collective agreement must contact their union for assistance in recovering wages. A collective agreement does not terminate on bankruptcy. The status of a collective agreement is governed by labour relations legislation of a specific province or territory, and is only terminated in specific circumstances set out in the Act. As the courts have stated, it follows that a collective agreement can bind a successor employer who takes over the business of the debtor if the labour board so declares. In addition, a collective agreement is a contract between the company and a union, and not its employees.

If an employer is bankrupt, employees in a non-unionized workplace or the union in a unionized workplace will need to file a claim with the bankruptcy trustee. There are time limits for filing, so the employee or union should do this as soon as possible. In bankruptcy cases there is no guarantee that employees will receive all or part of the wages owed to them. In any case, it usually takes up to six months before employees will see any money. As for the WEPP, the program is being delivered by Service Canada on behalf of the Labour Program. In order to file a claim, the employee must send an application to Service Canada within 56 days of the bankruptcy or receivership.

However, despite a bankruptcy, directors may still be liable for unpaid wages, unremitted payroll deductions, employment insurance, Canada Pension Plan premiums and contributions, and for dividends paid or other transactions that do not meet a financial test if the company is insolvent, among others. For all these matters, a due diligence defence is available and would normally be covered by an indemnity from the company or directors' and officers' liability insurance. Directors are only protected to the extent their actions show the exercise of their business judgment.

The keystone of protection for directors therefore remains the ability to demonstrate that each director in fact has taken reasonable steps to exercise his or her business judgment when considering corporate actions—decisions and actions that are made honestly, prudently, in good faith and on reasonable grounds.

The employees are allowed to sue the directors of the corporation to make up for any shortfall. However the process is tedious. It can take years, and not all the employees involved have a union to advocate for them.

Employees should keep all pay statements and other records that can prove they were an employee and that wages are owed to them. If they have not received a Record of Employment from their employer to apply for EI benefits, employees should be directed to contact Human Resources and Skills Development Canada, also referred to as Service Canada. If they did not receive their T4 Slip, they should contact the Canada Revenue Agency.

Conclusion

In conclusion, employees have limited rights in the event of employer bankruptcies.

Nonetheless, any employer that has filed for bankruptcy should support the efforts of its employees to receive the wages and benefits, including severance, owed to them. This is not only the right thing to do, it is good business sense for anyone seeking to restructure a firm successfully and preserve as much of the human capital component of the firm's going concern value.

Moreover, the significance for directors of the statutory liability for employees' wages is clear. Where an organization becomes insolvent and is unable to satisfy the claims of its employees for wages owed, the directors may be personally obligated to satisfy such claims. Therefore it is extremely important for directors to carefully review the financial statements and all other financial records and related documents of the organization on whose boards they are members.

Must, or should, a declaration permitted under an international convention be expressly ‘implemented’ in Canadian law, or is implementation of the convention as a whole sufficient to give legal effect not only to the convention but also to any declaration made by Canada?

It is commonplace that in our legal system, treaties are not self-executing. This means that Canada’s ratification of or accession to an international convention has an effect only in international law, creating an obligation that may be enforceable by remedies provided in the convention itself but not in Canadian courts.

However, the convention will have domestic legal effect once it is implemented by some form of effective legal action in Canada. That is usually by legislation, though it may be by administrative action or even by exercise of the Royal Prerogative, if a convention were to fall within the narrow range left to that legal power.

It is also well established law since the Labour Conventions case in 1937 that the implementation is to be done by the level of government that has the legislative power over the subject matter of the treaty.

Thus for example a convention on banking or insolvency would be implemented solely by federal legislation. The Hague Child Abduction Convention was implemented by provincial legislation, though the federal government has an office that participates in appropriate cases. Sometimes both levels of government legislate, as they did to implement the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The federal statute in that case dealt only with arbitrations to which the federal government was a party or that involved a dispute over marine or admiralty matters (i.e. matters that are federally regulated).

The Hague Service Abroad Convention was implemented in Canada by amendments to the Rules of Civil Procedure (Ontario Rule 17.05), largely in the provinces. It may be that the Hague Legalization Convention about which I wrote last month can be implemented by administrative action to create a system to issue and keep a register of apostilles.

In this context, an interesting question arises about how to give legal effect to declarations under conventions. Declarations are a method expressly permitted by a convention for member states to qualify their participation in some way, usually relating to the scope of application of the convention. For example, the New York Convention allows member states to declare that they will enforce foreign arbitral awards only from countries that will enforce those made in the declaring state: in short, a reciprocity clause. They may also declare that the Convention will be restricted to awards arising from commercial disputes. (Article 3) The Convention on Contracts for the International Sale of Goods (CISG, or Vienna Sales Convention) allows member states to declare that they will restrict the operation of the convention to contracts made by parties both of whom are in member states, and not in respect of parties to whom the convention would apply only because of the operation of conflict of laws rules. (Article 95 declaration about article 1(b) of the Convention.)

When the implementation of a convention depends on provincial action, the provinces can ask the federal government to make declarations for them, and modern conventions generally allow for a targeted approach (through a ‘territorial unit’ or ‘federal state’ clause), so that the convention will apply only to the sub-national units that Canada declares to be included. For example, Ontario’s implementing legislation for the CISG provides that Ontario shall ask the Government of Canada to declare that the Convention applies to Ontario. A convention may be brought into force for some provinces immediately on Canadian ratification and later for others.

The logical consequence of this is that each province can have different declarations. For example, when Canada first ratified the CISG, British Columbia asked for, and got, a declaration that it would restrict the application of the convention as stated above. The convention was not so restricted in its application to other provinces. Some years later, B.C. changed its mind and the declaration was withdrawn. Some effort is made in practice to harmonize the decision on declarations, but as with any ‘uniform’ policies, governments are free to buy in or not.

It is an interesting question just how such declarations ought to be given domestic legal effect. Implementing legislation usually contains a provision like ‘The Convention has force of law in [enacting jurisdiction]’. (That is not strictly necessary; if the law of the jurisdiction does everything the convention requires, then Canada meets its international obligations under the convention, and the convention will be read into that jurisdiction’s law. But that is a topic for another day.)

Must, or should, declarations also expressly be given ‘force of law’ in provincial law, or in the federal statute for federal implementation? Or is the fact of making a declaration sufficient to give the declaration legal effect? The declaration once made is on the record of the organization that is named as depository of the convention. These days the record of declarations is available online from the depository, so it is very easy to find out what declarations have been made by what states or parts of states. For example, here is the list of member states of the CISG. The notes show the declarations. (See note (b) about Canada’s ratification history.)

But the ease of finding out what declarations have been made is not the only factor. There is a difference in kind between the substantive provisions of a convention that can be applied like any statute, and the ‘final clauses’ about how the convention itself is brought into force. Canadian practice is to give the whole convention, including final clauses, the force of law by legislation, rather than trying to pick and choose which clauses a province or the federal government must legislate, and which can be left to international institutions. Nevertheless is the legal effect of giving final clauses ‘force of law’ that anything done pursuant to them also has force of law?

My tentative view is that it is not strictly necessary as a matter of law for the implementing legislation to spell out the effect of any declaration that the implementing jurisdiction wishes to make. Declarations are a device of international law, communications between the member state (which is Canada, not a province) and the depository organization. They affect the application of the convention, but that also is a matter of international law. The impact of that application locally can be discovered by checking with the depository, either for a party within the implementing province or for a party outside the country wishing to transact with the party inside. Implementing the convention itself is a sufficient action for the implementing jurisdiction. Discovering what the convention applies to is a matter for other sources.

That said, is this good legislative practice? Would it not be preferable for the implementing jurisdiction to put all its law in its statute, as it were? (Obviously sometimes the law is in regulations, not just statutes, but regulations are created in the jurisdiction and are readily available from known sources.) It also gives Parliament or the Legislature notice of, and a say in, the choice of declarations, if one puts the request for declarations into the statute.

Sometimes, indeed, the declaration can radically affect the scope of the convention in practice, so it might be thought almost misleading not to mention it in the legislation. For example, the Electronic Communications Convention (EEC) in article 20 allows parties to have its rules apply to a list of named conventions, to all conventions to which the parties are members, only to conventions specifically named in the declaration, or to all conventions except those listed in the declaration. A member state, or part of a member state such as a province, should arguably give notice in its legislation at least if it is going to be more restrictive than the default position, i.e. relying on the application if no declaration is made. When the range of possible applications is this wide, though, maybe even the default application should be signalled in the legislation.

One may contrast the declaration permitted by article 19 of the same Convention. That article allows a member state to restrict the scope of the Convention (a bit like the CISG) to contracts where both parties are in member states, or when the parties have agreed that the convention applies. It is arguable that no express mention need be made of NOT making any restrictive declaration; the Convention should be presumed to apply according to its principal terms, unless specified to the contrary. BC’s legislation to implement the CISG did specify its restrictive declaration (S.B.C. 1990 c. 20 s.2), and when the province changed its policy, it amended its statute accordingly (S.B.C. 1992 c. 31 s.13). Then it asked Canada to change the declaration, and Canada did so.

Article 19 of the ECC also permits member states to exclude from the scope of the convention any matters it declares to be excluded (besides those already excluded by Article 2). Here, a declaration to exclude should arguably be mentioned in the implementing legislation, to make it clear to readers immediately whether the convention is relevant to them or not. However, in the absence of additional exclusions, perhaps no declaration is needed. (In any event, someone contracting with a party in another member state will want to check that state’s declarations, in case its domestic legislation has not been prepared so scrupulously, or in case conventions are self-executing in that state without statutory implementation.

This is a question not only of innate fascination but also of practical importance. The Uniform Law Conference will be asked in August to consider the text of a Uniform Act to implement the ECC. The question of declarations will come up. What should it do? (The text proposed in 2010 is here. The meeting last year accepted the recommendations in principle but left drafting questions for the 2011 meeting.)

The province of Ontario will now require divorcing couples to attend an information session on mediation, which will be necessary before their proceedings can go forward. This information session is meant to provide alternatives to the court system in the hopes that it will alleviate the heavy caseloads many courthouses are facing.

As reported by Ms. Kathryn Blaze Carlson in the National Post:

By mandating the information session, and by subsidizing mediation for couples who choose to forgo litigation, Ontario has joined an international push toward mediation and away from costly, time-consuming and oftentimes nasty litigation. Britain and New York’s Nassau County recently joined states such as Utah and Florida in requiring that divorcing couples attend at least one mandatory mediation session.

And while Ontario has not gone to that extreme, these latest measures are similarly aimed at reducing court backlogs and the impact of legal disputes on people’s bank accounts and children.

Quebec imposes a similar obligation on divorcing couples who have children. Indeed, the Quebec Civil Code of Procedure states that:

814.3. Except applications under article 814.9, no application that involves the interests of the parties and the interests of their children may be heard by the court if there is a dispute between the parties regarding child custody, support due to a party or to the children, the family patrimony or other patrimonial rights arising from the marriage or civil union, unless the parties have attended an information session on the mediation process and a copy of the mediator's report has been filed.

Mediation requires the voluntary participation of two parties who are open to arriving at a compromise, which is not always the case with couples in the midst of a divorce. From another perspective, perhaps these sessions will strike a cord with those who have no intention of getting involved in a long and often expensive legal battle. It will certainly be interesting to see the effect of these two-hour information sessions on court backlogs.