Law in a Wired World by LawNow

Social Networking

May/June 2009

$4.95 05

72006 86181

Keen Affair

Voluntary Insurance

e d r i W W o a rld in

Help us save paper! Renew online – with our secure payment portal. Renew on time – with your first renewal notice. We support responsible management of our forests. That’s why we use FSC certified paper for our magazine.

Volume 33, Issue 5 Feature on Law in a Wired World 7 E-Commerce Law@Alberta and Canada Andrew Buddle Contracts in electronic form pose questions and new challenges for business and the law.

11 Social Networking: Discretion Advised Martin P.J. Kratz Social networking is lots of fun, but too much information can lead to serious consequences.

14 Cyber Bullying: Bullying through Technology Melissa Luhtanen and Lisa Ellis Bullies don’t just exist on the playground; they can lurk inside your computer.

16 Canada Needs a New Copyright Act Olivier Charbonneau Every day in Canada cases are decided and new law is created to tame a wild, wired new world!

What should a new Copyright Act look like? What should it contain? A lively debate is taking place.

19 Are Smart Licences such a Smart Idea? Colin Bennett and Andrew Clement

Departments

Specially encrypted provincial driver's licences may soon replace passports at U.S. border crossings, but they could have serious implications for privacy.

4 Viewpoint 6 Today's Trial

Special Report: Officers of Parliament 25 Officers and Officials of Parliament

Columns

These are important roles in a Parliamentary Democracy such as Canada.

29 The Office of the Correctional Investigator 36 Not-for-Profit Law

Charles Davison

38 Insurance Law

The Correctional Investigator looks into Canada’s federal prisons to address problems, so that staff and prisoners can be safer.

40 Human Rights Law

32 The Linda Keen Affair and Political Independence

42 Online Law

Duane Bratt

44 Criminal Law

The 2008 dismissal of the Chair of Atomic Energy Canada Limited highlights the tension that can exist between an appointed head of an independent body and the government of the day.

46 Law and Literature

School's In Cover photo credit: © Luxeterna | Dreamstime.com

21 The International School of Macau (TIS) Cyber Safety Fair Students run a Cyber Safety Fair. Lorine Sweeney

May/June 2009

The contents of this publication are intended as general legal information only and should not form the basis for legal advice of any kind. Opinions and views expressed are those of the writers and do not necessarily reflect the opinion of the Legal Resource Centre of Alberta Ltd. Permission to reproduce material from LawNow may be granted on request.

Viewpoint Martin P. J. Kratz

Publisher Diane Rhyason Editor/Legal Writer Teresa Mitchell Production Assistant Jaime Bury Editorial Assistant Karen Klak Illustrator Melanie Eastley Layout, design and production some production! Printing Capital Colour Press, Edmonton Mailing One to One Mailing LawNow (ISSN 0841-2626) is published six times per year by the Legal Resource Centre of Alberta Ltd. Subscriptions $24.95 + GST per year ($45 outside Canada) Back issues $4.95 + GST per copy Bulk rates available GST 11901 2516 RT0001 Make cheques payable to LawNow LawNow Legal Resource Centre #201, 10350 – 124 St. Edmonton, AB T5N 3V9 Telephone (780) 451-0782 Fax (780) 451-2341 Advertising (780) 451-0782 Email lawnow@ualberta.ca Website www.lawnow.org Return undelivered Canadian addresses to above address

LawNow is currently being indexed in the Index to Canadian Legal Literature (Carswell), the Canadian Index and the Canadian Periodical Index. Member of the Canadian Magazine Publishers Association and the Alberta Magazine Publishers Association Canadian Publication Mail Product Sales Agreement 40064777 PAP Registration No. 10708 We acknowledge the financial assistance of the Government of Canada, through the Publication Assistance Program, toward our mailing costs. The financial assistance of the Muttart Foundation is gratefully acknowledged.

Some lawyers practicing today began their legal careers without the ease of fax machines, word processors, personal computers, spread sheets, the ability to scan transcripts for relevant terms and certainly without the continual relentless buzz of blackberrys alerting the recipient of inbound email. All of these technological changes have had a profound impact on our society but also on the practice of law and the relationships between lawyers and consumers of legal services. However the impact of the Internet has been the greatest of all. Legal practice in 2009 now regularly includes online research, use of webbased search tools for research or fact gathering, may include web-based services and tools and, of course, includes the ubiquitous email. Email specifically has accelerated the pace and expectations of legal practice. Unless you have learned to turn off the buzz for each inbound email on your Blackberry … each inbound email brings with it a relentless call for attention and immediate action. That is the case for the urgent client’s plea as well as the countless spam messages with promise of miracle cures, vast fortunes or other unwanted offers. Work in the legal profession is contemplative. It is as much art as science. The application of facts to applicable rules does not have the mathematic precision of computer programming. Legal problems require consideration of many complex and sometimes contradictory facts, rules, and policy considerations in order to come to an optimal balance to meet a client’s specific needs. Client’s expectations in an email world are that immediate, comprehensive and ultimately correct answers should be immediately available shortly after the email has been received. Many lawyers can advise of receiving the client’s telephone call – “well I just sent you the email. What is the answer?”. Lawyers and consumers of legal services need to be wary of the information available on the Internet. A vast amount of information is available on the Internet including legal information. Much of this information is unregulated. The Internet offers the best and the worst that mankind has to offer. Consumers of legal services need to be wary of information located from the Internet. In pre-Internet days a person seeking to understand a legal problem might consult with legal journal or scholarly articles. Journals, such as LawNow or Carswell’s Legal Alert, for example, have some editorial quality control. However, now anyone can be a publisher on the Internet. The circumstantial trustworthiness of articles provided by the law book publishers is missing when merely finding information on the Internet. A person researching a legal problem on the Internet needs to keep in mind the source of the information being provided. For example, advocacy websites may present information that they wish to be true as opposed to what is provably true. A person researching a legal problem on the Internet also needs to keep in mind the jurisdiction in respect of which the information is provided. There are, for example, important differences between the laws of different provinces, states and countries. Quebec regulates gaming very differently

May/June 2009

than Alberta. Canada’s copyright law has important differences from that of the United States. Tax considerations may vary considerably in different states. While there is often useful information available on the Internet it needs to be filtered by the law which will be applicable to the user’s issue. A person finding legal information on the Internet also needs to keep in mind that the basic information provided may not address important caveats, exclusions, exemptions or other considerations which may be very relevant to the user’s specific question. Legal information provided on the Internet is often aimed at very basic awareness of the applicable rules. However rarely is the basic rule without exceptions. It can be very misleading for the Internet researcher to merely assume that the basic information provided by a website will be applicable to her or his fact situation. Lawyers and consumers of legal services also need to consider how to get the best out of email communications. Both should consider some thoughts to optimize the use of email communications. • Thoughtful answers require time to think through and weigh all of the relevant considerations. Do you want a fast answer or a right answer? Consumers of legal services need to give the lawyer enough time to assess the relevant law and facts and provide a response. • A lawyer may not readily respond to an unsolicited email question. That is not necessarily because the lawyer is busy but rather that lawyers are subject to strict rules on conflict of interest. The lawyer may not be able to respond in the circumstances and will typically seek to identify the applicable parties before the lawyer can confirm that she or he is able to respond. • Lawyers in Canada now also need to gather more information from prospective clients before they can commence to provide legal advice. It may take time to clear conflicts, get the required information, and then begin to get the relevant facts before a response can be provided. • If a consumer of legal services is seeking to find a lawyer it is important not to put all of the facts into the initial email. Allow the lawyer you are communicat-

May/June 2009

ing with time to clear conflicts, etc before getting into the details of the specific problem. • Both lawyers and clients are safer to treat email like other forms of communication, old fashioned correspondence, for example. It is possible to have misunderstandings, mistakes or miscommunications in a complex and rapid exchange of email messages. Sometimes clarity is provided by crystallizing the question and answer in a letter format in the email communications. More complete answers can be provided and misunderstanding reduced if the dependencies and contingences can be properly described in an answer. Taking the time to fully read the question and provide a complete response reduces mistakes. Taking time to provide the lawyer all of the applicable facts leads to better and more relevant answers.

• Privileged or confidential materials sent by email benefit from being identified as such. If there is subsequent litigation then it is easier to identify such communications and handle them appropriately. • Email is fast but does have some inherent security risks being communicated via the Internet. If a client wants a higher certainty of confidentiality or protection of privilege, then one can bypass email communications and use delivery of the sensitive materials by courier. If email is desired, then the lawyer and client can discuss the risks of use of email, applicable regulatory or legal considerations and discuss the optimal way to communicate given the client’s circumstances and willingness to accept the risks inherent on the Internet. Martin P.J. Kratz is a lawyer with the firm of Bennett Jones LLP in Calgary, Alberta.

High Quality Computer Consulting for the Legal Profession

Edmonton and Area p: 780-850-3625

• • • • • •

Hardware Networking Backups Software Servers Anti-Spam

www.digitsmanagement.com e: info@digitsmanagement.com

• • • • • •

Anti-Virus Security ESILaw SoftLaw PCLaw QuickLaw

Today’s Trial Teresa Mitchell

Parental Alienation Disputes between separated parents over custody and access issues are endemic to the cause. So much so that most courts in Canada with jurisdiction in this area of law have made parenting after separation courses mandatory for divorcing parents. Not surprising in a field so fraught with emotion, every once and a while, a family situation goes horribly wrong. In recent years, these extreme cases have led to the concept of “parental alienation.” Two recent judgments explore the repercussions of this syndrome, and the sometimes extreme steps that can be taken to remedy it. In the February, 2009 Ontario Superior Court of Justice case of A.G.L. v. K.B.D, clinical psychologist Barbara Fidler, who is publishing a book on the subject, testified about parental alienation syndrome (PAS). She used this definition: “a form of emotional child abuse almost exclusively seen in separated and divorced families in custody disputes.” She created a chart entitled Pathological Alienation, which was entered as an exhibit at the trial. It detailed warning signs of behaviours exhibited by the child, the alienating parent, and the rejected parent. It is a chilling read. Justice Faye McWatt noted some of the effects of PAS on children, as outlined by Ms Fidler: “There is a broad range of effects of this severe sort of alienation on a child. Some of them are low self-esteem to self-hatred, guilt, feelings of abandonment, feelings of being unloved and unworthy. Children may feel self-doubt and doubt about their ability to perceive reality. They may have simplistic or rigid information processing. They can have inflated selfesteem. They may have poor differentiation of self. They may be aggressive and have poor impulse control. Where there are court orders and children become aware that the orders are not being obeyed by the alienating parent, these children can learn that

it is acceptable not to obey court orders. Alienated children can lack compassion and remorse and can also develop an ability not to feel guilt.” Justice McWatt stated that the test for determining custody is the best interests of the child. The court is required to take into consideration the willingness of the person seeking custody to facilitate as much contact between the child and the other parent as is consistent with the best interests of the child. She found that the custodial mother in this case had utterly failed to do so, writing, “K.D. in all the evidence before me, is incapable and unwilling to support the three children in a relationship with their father. She has demonstrated for the past fourteen years that she will not act in the best interests of her children in this regard. She has assaulted two of the three children and she has further abused all three children by keeping them from their father physically and alienating them emotionally from him.” The Judge issued a far-reaching order transferring custody of the children forthwith to their father and expressly permitting him to remove the children from Canada to attend a special program in the United States called the Family Workshop for Alienated Children. The father was given permission to make all decisions about the welfare of the children without consultation with the mother. The mother was ordered to have no contact with the children whatsoever pending further review by the Court. A second case involving Parental Alienation Syndrome and the Family Workshop for Alienated Children, S.G.B. v S.J. L., was also heard in Ontario Superior Court in February, 2009. The result was quite different. In the second case, an arbitrator’s decision to transfer custody of two sons to the alienated parent and for the children to attend the Family Workshop for Alienated Children was suspended by a reviewing judge.

Justice Thea Herman ruled that the arbitrator made an error in law when, having reached the conclusion that this was a case of parental alienation, he decided the children should attend the Family Workshop for Alienated Children. Justice Herman demurred. She noted that the clinical psychologist in this case had never actually seen the children, and had stressed this point in his presentation to the arbitrator. Furthermore, the younger of the two sons suffered from a genetic disorder that complicated his situation. Justice Herman noted that he was extremely attached to his older brother, but at age 17, the older brother could refuse to attend the Workshop. This would result in an already vulnerable child being hurt by a separation from his older brother if he had to attend the U.S.- based workshop alone. Justice Herman wrote, “A determination of what is in a child’s best interests is a case-specific determination. What is appropriate in one case, may not be appropriate in another. It was, in my opinion, an error in law not to consider the children’s particular needs and circumstances in determining that the Family Workshop was in their best interests.” She suspended the arbitrator’s decision. These two cases drive home the point made by Justice Herman: there is no “one size fits all” solution to intractable custody and access disputes, and all decisions must be case-specific. This is especially important when an extreme solution such as attendance at a family alienation workshop in another country is contemplated. The relatively new concept of Parental Alienation Syndrome is becoming more accepted in Canadian courts, but how to best address it still leads us back to the time-honoured standard of the best interests of the child. 1. A.G.L. v. K.B.D., 2009 CanLII 943 (ON.S.C.) 2. S.G.B. v. S.J.L., 2009 CanLII 4523 (ON.S.C.)

May/June 2009

Feature Report on Law in a Wired World

E-Commerce Law

Alberta and Canada

The incredible growth in popularity of the Internet over the last 20 years has transformed the lives of many of the world’s citizens. The number of people online has surpassed 1.5 billion and, of those, approximately 50 percent were expected to use the Internet to make a purchase in 2008.1 As governments have struggled to keep up with this changing environment, they have left in their wake a patchwork of legislation and regulations for courts to interpret and citizens and businesses to challenge. An overview of the law governing the buying and selling of products and services on the Internet (e-commerce) offers a reflection on the recent period of drastic change and a glimpse towards the challenges and opportunities destined for the future.

Andrew Buddle

Provincial Legislation Electronic Transactions Act (ETA) The ETA is Alberta’s primary e-commerce legislation and is based on the Uniform Electronic Commerce Act — a model law proposed by the Uniform Law Conference of Canada. The primary goal of the ETA is to accord the legal status of a paper-based contract or signature to an electronic contract or signature. To meet this goal, the government of Alberta has taken an omnibus approach whereby the provisions of the ETA affect all other legislation in force in Alberta. While the ETA does not require that parties transact electronically, parties that choose to create electronic contracts can use technological

May/June 2009

The primary goal of the ETA is to accord the legal status of a paper-based contract or signature to an electronic contract or signature. To meet this goal, the government of Alberta has taken an omnibus approach whereby the provisions of the ETA affect all other legislation in force in Alberta. media such as fax or Portable Document Format (PDF) to complete the transaction. These types of media meet the ETA’s requirements as their readonly nature allows recipients to retain the contract for subsequent reference in a format that preserves the integrity of the document from the time it was created. Both Canadian and U.S. courts have generally upheld the validity of click-wrap agreements. These agreements are electronically presented to, and accepted by, a user, for example, via a dialog box upon installation of software or via a webpage where a user clicks on an I accept icon or checkbox.2 However, the enforceability of browse wrap agreements, a contract where the terms and conditions are set out but consumers are not required to expressly or affirmatively indicate their acceptance, remains in serious doubt. Parties to agreements may also use electronic signatures if the signature is created or adopted by the signatory in a form that is reliable for identifying such person and the electronic signature is located within, attached to, or associated with the document. The 2008 Alberta Court of Queen’s Bench case, Leopky v. Messon decided that an identifiable personal signature includes the typewritten name of the signatory which may be included at the end of an agreement or communication. The font or format of an electronic signature does not matter provided the signatory intends to be bound by the markings that constitute the electronic signature. This means that, if desired, parties should still indicate their intention to use and be bound by such electronic signatures and communications by including a provision in the agreement that the agreement may be executed electronically and delivered by fax or PDF.

However, the ETA does not apply to the collection, use, or disclosure of information pertaining to an individual’s personal characteristics, which the ETA labels to be biometric information. The primary concerns about personal information taken through biometric methods pertain to its potential misuse or unauthorized use without an individual’s consent.

Certain transactions are excepted from the application of the ETA including wills, codicils, and testamentary trusts, enduring powers of attorney, personal directives, interests in land, guarantees, negotiable instruments, and various prescribed records or classes of records. The Electronic Transactions Act General Regulation also sets out a number of exceptions to the application of the ETA including to information or records related to employeremployee relationships. While the ETA applies to both public and private sectors, public bodies must provide explicit consent before engaging in electronic communications or transactions. The use and retention of information in electronic form by public bodies is permitted, if consent is obtained from the other parties involved in the transaction. It is also worth noting that the ETA amends the Alberta Evidence Act by providing for the admissibility of electronic records as evidence upon proof of their authenticity. However, the ETA does not apply to the collection, use, or disclosure of information pertaining to an individual’s personal characteristics, which the ETA labels to be biometric information. The primary concerns about personal information taken through biometric methods pertain to its potential misuse or unauthorized use without an individual’s consent.

Internet Sales Contract Regulation (ISCR) The ISCR was created pursuant to section 42 of the Fair Trading Act and establishes a set of rules governing Internet sales contracts in which the supplier or consumer is a resident of Alberta, or in which the offer or acceptance is made in or sent from Alberta. Certain classes of business, including real estate and mortgage brokerages, correspondence-based education, sale of perishable food, online gaming, and securities trading fall outside the application of the ISCR. An e-commerce supplier must disclose, amongst other things, the following information before a consumer enters into an Internet sales contract: • the supplier’s name, business address, telephone number, and email address (if applicable); • a fair and accurate description of the goods or services being sold; • any associated costs payable by the consumer, including taxes and shipping charges, and a description of any additional charges such as customs duties and brokerage fees; • the terms, conditions, and method of payment; • the date when the goods are to be delivered or the services are to begin, or both, and the supplier’s delivery arrangements including the identity of the

May/June 2009

shipper, the mode of transportation, and the place of delivery; and • the supplier’s cancellation, return, exchange, and refund policies, if any. To fulfill these information requirements, an e-commerce supplier must prominently display the information in a clear and readable format on a website and make such information accessible in a manner that ensures that the consumer can access the information and is able to retain and print it. In 2007, the Supreme Court of Canada in the case of Dell Computer Corp. v. Union des consommateurs, affirmed that an e-commerce vendor may include terms in an electronic consumer contract which are set out on another website, provided such terms can be accessed by a “functional and clearly visible” hyperlink. An e-commerce supplier must also provide the consumer with a copy of the contract in writing or electronic form within 15 days of its conclusion. It is important to note that consumers may cancel Internet sales contracts in the following circumstances by giving appropriate notice of such cancellation in accordance with other provisions of the ISCR: • within 7 days after the consumer receives a copy of the contract if the supplier does not fulfill the disclosure requirements or the supplier does not provide the consumer with an express opportunity to accept or decline the contract or to correct errors immediately before entering into it; • within 30 days from the date the contract is entered into if the supplier does not provide the consumer with a copy of the contract; or • at any time before delivery of the goods or the commencement of the services if the goods are not delivered within 30 days of the delivery date agreed upon or, in the case of services, the services are not commenced by the agreed upon commencement date or within 30 days. Note that a supplier will be considered to have delivered goods or commenced services under an Internet sales contract if such delivery or commencement was attempted but refused by the consumer or not made because the consumer was unavailable for receipt. If an Internet sales contract is cancelled by a consumer (email notification is permitted), the supplier must, within 15 days from the date of cancellation, refund to the consumer all consideration paid by the consumer whether paid to the supplier or to another person. A consumer who has used a credit card for all or any part of the payment may make a written or electronic request to the credit card issuer to cancel or reverse the charge (and any associated interest or other charges), if the consumer has cancelled the Internet sales contract and the supplier has not refunded all of the consideration within the 15-day period.

May/June 2009

Although the provisions of the Competition Act pertaining to misleading representations were initially designed for application to regular advertising and telemarketing, the Competition Bureau also applies them to e-commerce.

Federal Legislation Federally, e-commerce is principally governed by the Personal Information Protection and Electronic Documents Act (Canada), which confirms that electronic means can be used to fulfill legal obligations. However, electronic transmission of most federally-governed documents must still be in written and signed form including those governed by the Bank Act (Canada) and the Bills of Exchange Act (Canada). Therefore, promissory notes, cheques, and bankers’ acceptances should not be signed electronically, and an electronic version should not be relied on.

Competition Act Although the provisions of the Competition Act pertaining to misleading representations were initially designed for application to regular advertising and telemarketing, the Competition Bureau also applies them to e-commerce. The Bureau has published a set of enforcement guidelines in a document entitled “Application of the Competition Act to Representations on the Internet” (available at http://www. competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/01213. html).

In its enforcement efforts, the Competition Bureau focuses on the party who causes misleading representations or deceptive marketing practices to be made. In the online environment, the Competition Bureau may be called upon to consider the respective roles of the webpage designers, the web hosts who own or operate the servers, the Internet Service Providers who provide access to the Internet, and the businesses on whose behalf the representations

The federal government has yet to follow through on its 2008 campaign promise to introduce legislation to restrict spamming, namely the practice of sending massive amounts of unsolicited emails for commercial or fraudulent purposes.

Montreal resident Adam Guerbuez was recently ordered by a United States federal court to pay the social-networking website Facebook $873 million (U.S.) for inundating users with spam messages. It is not clear that such action would be possible in Canada.

are made and disseminated. However, the use of online disclaimers, often signaled by an asterisk, by an e-commerce vendor may be sufficient to alter the general impression created by an otherwise false or misleading representation. Nevertheless, e-commerce vendors should be cautious given the significant civil and criminal penalties which can arise under the Competition Act.

Future of E-Commerce Law E-commerce law and policy is notoriously unpredictable, though there are some interesting developments on the horizon. It has been suggested that a standard form layout for contractual terms should be adopted for e-commerce transactions so that consumers can gain familiarity with the terms and make more informed choices about their rights.3 This would likely require strong leadership from private-sector industry associations and the public sector to move beyond a voluntary initiative. The federal government has yet to follow through on its 2008 campaign promise to introduce legislation to restrict spamming, namely the practice of sending massive amounts of unsolicited emails for commercial or fraudulent purposes. Without targeted anti-spam legislation, Canadians must rely on various federal statutes, which are generally only engaged and enforced if the products or services offered are themselves illegal or accompanied by misleading claims. In early February of 2009, the Canadian Senate began debate on the second reading of an anti-spam bill, S-220, An Act Respecting Commercial Electronic Messages (the Anti-Spam Act). If passed, the Bill would crack down on spam by prohibiting the sending of commercial emails to Canadians without their prior consent. S-220 would not only give new tools to police, but would also equip Internet Service

Providers with the authority to block, filter, and refuse spam messages. Other measures in S-220 go beyond spam to target phishing. These are attacks which occur when spam messages lure email users to fraudulent websites resembling those of trusted businesses in the hope that the users will be fooled into entering their user names, passwords, or other information that can be used to gain access to their online accounts. To raise support for the Bill, a Canadian Senator pointed out that Montreal resident Adam Guerbuez was recently ordered by a United States federal court to pay the social-networking website Facebook $873 million (U.S.) for inundating users with spam messages. It is not clear that such action would be possible in Canada.

Conclusion E-commerce transactions are subject to a voluminous body of contract law, and the provincial and federal laws that modify it, along with consumer protection statutes. In addition, online consumers and vendors are also subject to legislation which provides for online privacy and security, provincial and federal taxation measures, the implied warranties found in provincial Sales of Goods Acts, and rapidly-changing government policies. E-commerce legislation and the common law will continue to evolve as governments and courts face the challenges of changing commercial realities and Canadiansâ&#x20AC;&#x2122; increasing desire to transact electronically. Andrew Buddle is a lawyer with the firm of Bennett Jones LLP in Edmonton, Alberta.

Notes 1. Statistics from Internet World Stats at http://www. internetworldstats.com/stats.htm (viewed February 15, 2009) and IT Facts http://www.itfacts.biz posting date July 25, 2008 (viewed February 15, 2009). 2. Rudder v. Microsoft, [1999] O.J. No. 3778, 47 C.C.L.T. (2d) 168 (S.C.J.). 3. R. Orpwood, Electronic Contracts: where weâ&#x20AC;&#x2122;ve come from, where we are and where we should be goingÂ¸ Internet and E-Commerce Law in Canada, April 2008 Volume 8, Nos. 11 & 12.

May/June 2009

Feature Report on Law in a Wired World

Social Networking:

Discretion Advised

Martin P. J. Kratz The Internet has been one of the most transformative vehicles for change in recent history. For example, Web 2.0 phenomena, such as social networking, are indicative of a more profound social change as the first generation to grow up in an Internet world begins to change the rules of how we choose to interact with others especially in the context of the younger, Internet- savvy generation. Social networking websites are places where individuals may post personal information about themselves and establish electronic relationships with others. Examples of such websites include Facebook, MySpace, Friendster, Nexopia, LinkedIn, Twitter, and many others. This phenomenon has grown rapidly, is quite widespread, and permits an individual to reach out and connect with a new electronic community without borders. As a result, the members of such web-

May/June 2009

sites may find that they have interests in common with other users in communities that are geographically very distant. Interestingly, for those who grew up with a concept of privacy, many social networking site users share a wide range of very personal information about themselves on the Internet. It is estimated that 61% of 13 to 17 year-olds have an online profile and about half of those include photographs.1 A 2008 University of

É respect your own privacy — consider if you would be comfortable if your boss (or your mother) saw what you are going to post;

Social networking websites are places where individuals may post personal information about themselves and establish electronic relationships with others. Examples of such websites include Facebook, MySpace, Friendster, Nexopia, LinkedIn, Twitter, and many others.

Guelph study by Amy Muse found that Facebook postings typically include birthdates, email contact information, relationship status, and personal interests. Of those surveyed, 42% would provide their city and 24% their phone number. The same study found that participants had a high willingness to post photos of themselves on the site — about 60% to post swimsuit photos, 36% to post photos “making out”, 35% to post photos doing something illegal, and 21% to post naked photos. A very different view of privacy indeed. Emily Nussbaum, writing “Say Everything” for nymag.com (http://www.competitionbureau.gc.ca/ eic/site/cb-bc.nsf/eng/01213.html ) suggests we are witnessing a true generational shift and that the younger generation has a different sense of privacy coming from, among other things, living in a surveillance society. Nussbaum also notes that this new generation sees itself as having an audience. They create and share their life experiences with others — an open diary that they share with the world. As a result, they may be developing thicker skins to respond to the cyber bullies, freaks, and abusers of the Internet. They seem to embrace the multimedia world with the proliferation of camera cell phones. One can now expect to see cameras used at a wide range of social functions and the resulting pictures posted on social networking sites. The benefits of expanded connectivity also bring new legal risks and problems. Some of these risks surround the information people may post about themselves and some around information posted by

The law continues to evolve as it confronts the widespread posting of intimate and private personal information on social networking sites. The law will also need to adapt to the unintended uses of that information and perhaps the standard of what is reasonable to post may itself change over time.

or about others. Two important legal considerations that should be considered in light of such conduct are the law of defamation and the law of privacy. Both topics have been addressed in an earlier article “Social Networking and the Law” (LawNow Sept/ Oct 2007) This article explores additional aspects of how Canada’s privacy law interacts with social networking postings and activities. The potential use of information posted on social networking sites for criminal purposes or to victimize the individual has been the topic of much discussion and is not considered in this article. Social networking sites typically require users to click to agree to the terms of use and the privacy policy of the social networking site that they sign up for. These terms caution users that information that they post may not be private, and explain which settings users can set to manage their privacy. However, few youth read the terms they are agreeing to or use the privacy settings that are available. Unfortunately, many users of social networking sites do not differentiate between inbox postings which are private, and wall postings which are provided to the broader group/world. A further problem is the persistence of the information posted on the Internet. While many young people who do not like the way their social networking site is evolving merely seek a “do over” and abandon the earlier site to set up a new one, the information is still available on the original site. A related problem is how the information posted on the social networking site is used. There are reported cases of social networking sites being used to post favourable reviews by employers, to offer jobs after an employer reviews the social networking site, for sales and marketing activities, and for public affairs activities. However, social networking sites are also being used to fight crime, to discipline employees, to impeach witnesses, by parents to check on their children, and by people who like to be nosy. Statements made on a social networking site are not without legal consequences. Aside from defamation, (discussed in the earlier article) admissions on a social networking site have been used against the posting party in: • personal injury litigation — where, for example, a person claiming an injury shows off his participation in an athletic event; • family law litigation — where admissions of affairs have been used, and worse, where a husband used the social networking site to notify his wife that he was seeking a divorce; and • employment litigation — where employees have been terminated or disciplined for their conduct or admissions. For example: off-duty employees have

May/June 2009

been disciplined for off-duty conduct prejudicial to the employer; an employee who filed a disability claim and posted his bodybuilding results on YouTube had some explaining to do; and a flight attendant who wrote a blog as “Queen of the Sky” was fired for posting inappropriate pictures of herself in uniform online. The persistence of this information means that teenagers’ postings today may well be read in the context of their reviews for a position of Vice President in the coming decades. They may regret some of their youthful exuberances … but then reviewers of such information at that time may well have more tolerance for such excesses than does the current generation. There may well be a serious legal issue, however, with the ability to collect social networking site information and use it for a different purpose than the purpose for which it was originally posted. If such information is collected for a commercial purpose, then Canada’s private sector privacy law may be applicable, and it may be that the information posted on social networking sites is not publicly available for the purposes of such legislative regimes. In fact, most social networking sites have terms of use which limit the ability to access the information posted there. There may well also be a serious legal issue on the capacity of individuals to consent to the posting of some kinds of information about themselves. Canada’s private sector privacy laws purport to limit the capacity of individuals to consent to the collection, use, or disclosure of personal information about themselves for a purpose that a reasonable person would consider unreasonable. The law continues to evolve as it confronts the widespread posting of intimate and private personal information on social networking sites. The law will also need to adapt to the unintended uses of that information and perhaps the standard of what is reasonable to post may itself change over time. In the coming years, we will see legal decisions begin to define how publicly available such information really

May/June 2009

… do not share too much detailed information — preserve a cocoon of privacy around yourself;

is, what protections (if any) are available to individuals who post such information about themselves, and what steps people can take to correct or redact the personal information (or another) may have previously posted. In the meantime, some protective steps that users of social networking sites should consider include: • say no to friends that you do not want to share your personal information with; • understand and use the privacy settings on your social networking sites; • use email for private communications and use the wall postings for public communications; • respect the privacy of those about whom you write or post photos; • respect your own privacy — consider if you would be comfortable if your boss (or your mother) saw what you are going to post; • do not share too much detailed information — preserve a cocoon of privacy around yourself; and • remember — once posted, the information is very persistent and very hard to remove. The posting of personal information on social networking websites does not preclude the need to consider the legal implications of such conduct. Users should exercise some careful thought before pressing send. Martin P.J. Kratz is a lawyer with the firm of Bennett Jones LLP in Calgary, Alberta.

Notes 1. 2006 US Government study, as reported by Emily Nussbaum, Say Everything, at http://www.nymag. com/news/features/27341.

Feature Report on Law in a Wired World

Cyber Bullying: Bullying through Technology

Melissa Luhtanen and Lisa Ellis

This project was funded with a grant from the Sheldon Chumir Foundation for Ethics in Leadership and a Social Sciences and Humanities Research Council Public Outreach Grant. It is part of a larger project called, “On the Identity Trail: Understanding the Importance and Impact of Anonymity and Authentication in a Networked Society”.

Many of today’s new technologies are designed for the sole purpose of facilitating communication between individuals. Not only do these technologies enable communication between friends and family, but a large part of their appeal is that they present the opportunity to meet new people. Among the more popular ways of meeting others online are instant messaging, chat rooms, Facebook and other websites specifically designed for the purpose of meeting and connecting with those who share similar interests. With the click of a mouse, today’s young people have access to the world, and are increasingly more likely to create friendships, and even relationships, online with individuals they have never met in person. On one hand, today’s new technologies have made communication much easier. Young people have free rein to make new friends with individuals who share similar interests. They can express themselves by sharing thoughts and ideas with like-minded youth. This is especially good for youth who live in rural areas, which have fewer services and a smaller youth community. The potential for increased communication represents freedom – a world generally unrestricted by the piercing eyes of parents, and an exciting world where anything is possible and everyone is no further away than the click of a mouse. Today’s new technologies save time and are instantly gratifying – no more waiting weeks or days to hear back from a pen pal, or even minutes to receive an email. Today’s new technologies feature instantaneous

or “real time” communication; a feature very attractive to young people. Youth can “chat” online with multiple people simultaneously, have a conversation with a number of parties, or even send messages to thousands of people. This communication is generally at a low cost, if not entirely free. The opportunity to find other individuals who share similar interests is a big draw – and on the Internet – one can find others who share even the most obscure interests.

More Internet use leads to more opportunities for bullies There is no denying that technology is playing an increasingly important role in the lives of young people. According to the 2005 Young Canadians in a Wired World study of Grades 9 to 11 students, young people are avid users of technology. Young Canadians are more connected than ever before. Ninety-four percent of young people have access to the Internet in their homes, while 23% of young people have their own cell phones, often equipped with text messaging capabilities and digital cameras. Youth use the Internet to extend their existing social networks and develop new ones. Twenty-one percent of students in Grades 7 to 11 have reported meeting an Internet friend online and 72% said that it was a good experience.1 However, for some young people, the Net is a vehicle for bullying and sexual harassment. The Internet offers a place where some users feel anonymous. One study found that 59% of users have

May/June 2009

assumed a different identity. Of those, 17% suggested that they pretended to be someone else so they could “act mean to people and not get into trouble”.2 The Internet is a growing and popular tool for bullies. Cyber bullying occurs when a bully uses email, websites, or text messaging to harass other people. Cyber bullying can be done directly to an individual by sending them insults or threats via email, instant messaging, or text messaging. Using all of these technologies and websites, bullies can send insults about a classmate to numerous individuals. In addition, these bullies build sites that target specific students or teachers.

Legal repercussions of cyber bullying Sometimes, cyber bullying can be a crime. It is a criminal act, under the Criminal Code, to repeatedly communicate with others and cause them to fear for their safety and the safety of those around them. Defamatory libel — writing or stating something that is intended to harm someone’s reputation — is also a crime.3 Some forms of bullying, however, are not considered criminal, even though they have a harmful impact on those targeted. Cyberbullies may be difficult to trace. They may use computers that are not their own, or claim that they were not the source of the message, but that someone else used their computer. However, if a message is traced back to the bullies, and they are using a school or workplace computer, they will be disciplined through the rules applicable in that space. If the school or workplace does not take appropriate actions against a cyber bully there may be other repercussions. For instance, if the bully is posting discriminatory messages based on any of the grounds covered by the Alberta Human Rights, Citizenship and Multiculturalism Act4 such as race, disability or sexual orientation, and the school or workplace does not address this discriminatory conduct, the victim may make a complaint to the Alberta Human Rights and Citizenship Commission (see www.albertahumanrights.ab.ca to see about potential complaints). This complaint would be filed against the school or workplace based on failure to protect its students or employees against discrimination in the form of cyber bullying.

Stopping and responding to a cyber bully What can you do about cyber bullying if there are no legal repercussions? The following tips may help.5 When cyber bullying takes place over email: • if you do not recognize the sender’s name, do not open the message; • if you recognize the sender as a bully, ignore and delete the message;

May/June 2009

However, for some young people, the Net is a vehicle for bullying and sexual harassment. The Internet offers a place where some users feel anonymous.

• if the bully is using a personal email account, notify the sender’s account provider; • if you cannot determine the identity of the bully, use email tracking software to trace the identity of the sender. Once you know, you can contact your Internet Service Provider to block the sender from your mail; • if the bullying is occurring in an institution, such as work or school, ask that the institution’s anti-bullying policy be applied; and • if the message is very disturbing, contact the police. For cyber bullying over text messages: • tell someone else about it to get support; • change your phone number or get a new cell phone number; and • if the message is very disturbing, contact the police. For cyber bullying that takes place through websites, identify the Internet Service Provider on the site. It can determine who runs the site and request that the site be removed. If there is any false information on the website, report it to the police. For more information on cyber bullying and youth using the Internet see the Alberta Civil Liberties Research Centre website (www.aclrc.com) and follow the links to the resource Techno-tonomy: Privacy, Autonomy And Technology In A Networked World. Melissa L. Luhtanen is a lawyer and Human Rights Educator at the Alberta Civil Liberties Research Centre. Lisa Ellis is a lawyer in private practice in Calgary, Alberta.

Notes 1 V. Steeves, Ph.D., “Young Canadians in a Wired World Phase II: Trends and Recommendations”, (Media Awareness Network, November 2005). 2 Ibid. 3 Media Awareness Network, “Challenging Cyber Bullying” Online: http://www.media-awareness.ca/ english/resources/special_initiatives/wa_resources/ wa_shared/backgrounders/challenge_cyber_bullying.cfm.

4 RSA 2000, c. H-14. 5 Be Safe Online: Bullying Online, Website: http:// www.besafeonline.org/English/bullying_online.htm.

Feature Report on Law in a Wired World

Olivier Charbonneau

ÂŠ Norebbo | Dreamstime.com

Canada Needs a New Copyright Act

â&#x20AC;Ś fair dealing exceptions allow for private study, research, criticism, review, and news reporting, while other specific exceptions cover additional cases, including some educational uses.

The Canadian Copyright Act (www.canlii.org/ca/ sta/c-42) is a federal law that applies across the country and fits into many transnational agreements. It grants creators many transferable property-like rights over original works including literary, dramatic, musical, artistic, and certain other intellectual creations. Although these rights are far-reaching, they do not offer a complete monopoly over copyrighted works.

May/June 2009

In fact, the Copyright Act and subsequent court rulings have identified certain opposing rights, such as user rights, that allow others to avail themselves of works without seeking permission. For example, fair dealing exceptions allow for private study, research, criticism, review, and news reporting, while other specific exceptions cover additional cases including some educational uses. Copyright issues seem so complex because they encompass two very important goals. On the one hand, creators must be recognized for their labours and receive appropriate economic compensation. This is achieved by the property-like monopoly on the economic exploitation of works. On the other hand, a free and democratic society must be able to discuss, participate in, and share in our common culture and knowledge in a fair and equitable manner. Again, fair dealing and other user rights allow for this. What is fair is often a matter of opinion, and a strong consensus is sometimes difficult to establish, especially since social uses of copyrighted works may dilute the potency of certain business models. To make matters worse, changes in information technology have brought new stakeholders to the copyright debate. In the pre-Internet era, copyright legislation was designed as an industrial application: creators would assign or license rights to corporations by contract. The corporations became rights-holders which could trade or sell rights. Novels were thus published, eventually adapted to movies, and perhaps broadcast on television. Those concerned were media companies, broadcasters, and creators, who themselves could be seen as professionals practicing a particular trade such as freelance writing. The layperson or consumer was rarely concerned with copyright issues apart from purchasing books or records or watching TV. Of course, the advent of networked digital environments changed this balance. Said bluntly, an individual can now easily be capable of being a creator, a broadcaster, or a publisher, as well as a simple consumer of his or her own creations and the copyrighted content of others. This is self-evident with music. It is possible to not only trade songs with friends with file sharing software, but also to use simple software to transform these into personal versions and send them around the world. While many voices have spoken up to decry or celebrate this new reality, one thing is certain: the foundations of copyright-based industries have been shaken beyond recognition. Of course, corporations have tried to exert pressure on governments to modernize copyright legislation to ensure the stability of their operations. Most notably, they successfully lobbied the World Intel-

May/June 2009

Following the WIPO Internet treaties, Canada amended its legislation in 1997 to provide some quick fixes and pledged to embark on national consultations to determine the best course of action for a full copyright reform.

lectual Property Organization (WIPO) in 1996 to enact two treaties to address digital uses of copyrighted works. These treaties included new categories of rights such as the “making available right” to give only rights-holders the power to post works online, and “anti-circumvention rights” to render illegal, preferably as a criminal offence, tampering with digital encryption and other “technological protection measures” (TPM). This has led to the Digital Millennium Copyright Act (DMCA) in the United States and a European Directive. Canada has yet to substantially modify its Copyright Act. Following the WIPO Internet treaties, Canada amended its legislation in 1997 to provide some quick fixes and pledged to embark on national consultations to determine the best course of action for a full copyright reform. The goal was to have most issues covered within five years, but bitter squabbling, new business practices, and minority governments with more urgent matters to settle have left copyright reform behind. Again, a consensus is difficult to identify. Well-established creators and major media companies stand to lose the most from the potential of new technologies. Because they are the target of digital piracy, they usually clamour for stronger copyrights such as a duration beyond 50 years after the death of an author, the ratification of the WIPO Internet Treaties, and the diminishment of user rights such as the imposition of constraints on fair dealing. The goal of these heavy-hitters is to create a regime where digital devices are crippled by legal or contrac-

Similarly, the trend of user-generated content, also called Web 2.0, has yielded an unwavering tide of content available for free. While one could question the quality of these cultural products, their popularity and impact on our daily digital lives are now commonplace.

Unbeknown to many, Canadian libraries, particularly in universities, have begun to purchase vast quantities of digital works. This includes not only academic writings but also music, digitized versions of paintings, and sound recordings.

tual means, enforced by technological measures, to emulate the pre-Internet golden days. Individuals could only copy a song from the Internet to a music player if they have obtained this right, usually for a fee. It is this regime that best guarantees the survival of their business models, although civil libertarians and technologists have decried this approach. The ultimate test, it seems, rests on the shoulders of consumers if they buy into this approach â&#x20AC;&#x201D; quite literally. Conversely, creators and media companies, especially ones operating at the margins, have explored new technologies as a way to promote their works or find new markets. For example, musicians and authors, including renowned ones, post their creations for free and invite fans to purchase merchandise or attend shows. This has attracted much attention, even prompting some large and established corporations to test these new business models. Similarly, the trend of user-generated content, also called Web 2.0, has yielded an unwavering tide of content available for free. While one could question the quality of these cultural products, their popularity and impact on our daily digital lives are now commonplace. As well, the growing trend by large libraries and corporations like Google to digitize works that are out-of-copyright or are in the public domain also provides pressure to the approach retained by large media companies. These are part of our cultural heritage and are, after all, free alternatives to new content. It is important to understand that copyright applies to works in digital format. What is unclear is how some provisions are applied to these new categories of works and uses. Because copyright exists to foster fair markets of cultural goods, how individuals consume works in the digital arena is almost as important, if not more, to copyright reform as any

claim by rights-holders. You may want to sell a proverbial digital widget in a particular manner, but you cannot force a consumer to adhere to your terms if there are alternatives. Certain consumer groups have taken sides in the copyright reform debate. Unbeknown to many, Canadian libraries, particularly in universities, have begun to purchase vast quantities of digital works. This includes not only academic writings but also music, digitized versions of paintings, and sound recordings. It is not surprising, then, that librarians, university professors, and administrators have been actively following the reform process and have proposed their points of view. Consumer groups have followed suit. Most notably, many questions remain concerning contract law and consumer protection. The consumption of digital works such as software or music involves the adherence to contracts which have been unilaterally determined by media corporations. These are usually complex, long (if not indecipherable to the layperson), far-reaching, and include non-optional negotiating terms. A similar worry deals with Internet network traffic management strategies adhered to by certain telecommunications firms, such as Bell Canada, for which the CRTC is currently seeking comments. The power of a single individual in these cases is rather theoretical. It seems ironic that consumers and creators do not seek to join hands in the copyright reform debate. In fact, creators are a very special kind of consumer of copyrighted works. How could one aspire to become a writer without consuming, deconstructing, discussing, quoting, and learning about contemporary and more ancient texts? The same holds true for all the categories of works protected by copyright. In that sense, the biggest threat to creators, rights-holders, and consumers alike stems from an unbalanced approach to copyright reform. On the one hand, property rights are the recognized method to ensure the emergence of a market in cultural goods. On the other hand, this property right cannot prohibit social uses of protected works for education, news reporting, and criticism, all of which are required in a free and democratic society. Olivier Charbonneau is an Associate Librarian at Concordia University in Montreal, PQ. www.culturelibre.ca

May/June 2009

Feature Report on Law in a Wired World

Are

Smart Licences such a Smart Idea? In the name of thrift and convenience, Canadian governments are opening the door to a privacy-threatening ID scheme imposed by the United States in the misguided pursuit of “secure” borders. Currently, the Ontario government is pushing through legislation – Bill 85, the Photo Card Act – that would “enhance” the provincial driver’s licence to meet U.S. demands. As part of the Bush administration’s war on terror, Canadians entering the U.S. will soon need to show a passport or equivalent document in compliance with the Western Hemisphere Travel Initiative. The U.S. has already put this requirement into effect for air travel and in June 2009 it will cover all land and water crossings. In anticipation of this and to facilitate “the efficient and secure flow of cross-border travel and commerce,” several Canadian provinces are instituting enhanced driver’s licences (EDL). Enhancing a licence in accordance with standards set by the U.S. Department of Homeland Security involves including

May/June 2009

Colin Bennett and Andrew Clement

a citizenship indicator, an optical character recognition zone and a radio-frequency identification (RFID) chip. With these features, an EDL can serve as an alternative to a Canadian passport at an American border. Promoted as cheaper and more convenient than a passport, such a licence initially appears to be a good deal. A closer examination reveals several flaws with this approach. One of the most serious problems with EDLs is the requirement to adopt a particularly insecure form of chip – the EPC Gen 2. Over stiff opposition from the “smart card” industry as well as civil liberties organ-

… an EDL can serve as an alternative to a Canadian passport at an American border. Promoted as cheaper and more convenient than a passport, such a licence initially appears to be a good deal. A closer examination reveals several flaws with this approach.

izations, Homeland Security has insisted on a type of chip that is notoriously privacy-invasive in its potential. The chip on the card will hold a unique personal identification number that anyone in the vicinity (at least 10 metres) can read with commercially available equipment and link to any other information the person may have about the card holder. Soon after B.C. announced its licence initiative in early 2008, Canada’s privacy commissioners drew attention to the privacy risks of EDLs. In particular, they were concerned that the U.S. government’s requirements for vicinity RFID technology “permits surreptitious location tracking of individuals carrying an EDL and ... does not encrypt or otherwise protect the unique identifying number assigned to the holder.” They called on the federal government and participating provinces “to ensure the security of personal information stored on EDL RFID (chips) and to prevent the possibility of surreptitious location tracking.” Since then, Quebec, Manitoba, Ontario and Saskatchewan have joined B.C. in announcing their intentions to develop an EDL, but without adequately addressing the privacy commissioners’ concerns. None of these provinces has gone beyond reiterating the false and misleading claims that since the number on the EDL’s chip is random and “meaningless,” it contains no personal information, and that issuing a “protective sleeve” with the card will prevent unauthorized reading. It is ironic that while some jurisdictions require the disabling of similar RFIDs in consumer items at point of purchase, there appears to be no effective way for individuals to do likewise with a card many will carry all the time. There has been no visible progress in developing less invasive features, such as a switch that would allow cardholders to turn the chip off until they want it read, or the option to request an

EDL without a chip and only the optical character zone for machine reading. If the new licence catches on, there will be strong pressures from many quarters to exploit its RFID capabilities in settings far from border crossings, such as stores tracking and identifying customers, or police monitoring public spaces. This will fuel pressure to turn the card from voluntary option to mandatory requirement. Such potential for “function creep” increases the urgency for public discussion of the policy issues and alternatives. That Homeland Security and, apparently, our own federal government are adamant about deploying vicinity RFIDs with scant provision for even obvious protective measures, invites the conclusion that some in powerful government positions intend enhanced licences to serve wider surveillance purposes. With earlier attempts at developing national ID card schemes in Canada and the U.S. having been thwarted by popular opposition, the current push for EDLs appears to be a soft-sell, backdoor approach toward national ID schemes that are harmonized across all of North America. While the Ontario government is aware of the many serious concerns about the privacy-threatening aspects of the enhanced photo card initiative, and has been offered specific proposals for improving Bill 85, it has brushed them off and failed to amend the bill in a manner that will sufficiently safeguard the privacy and civil liberties of Ontarians. In particular, the valuable recommendations of Ontario’s information and privacy commissioner have been largely ignored. Rather than pass this flawed legislation, the government should send Bill 85 back to committee for a serious public discussion of the risks and alternatives. Until these issues have been addressed satisfactorily, Canadians who value privacy, national sovereignty and good governance would be well advised not to apply for the enhanced card. Instead, for a modest extra $10 a year they would be better off investing in the more secure, more privacy protective, and more versatile Canadian passport. Andrew Clement is a professor in the Faculty of Information at the University of Toronto. Colin Bennett is a professor and Chair of the Political Science Department at the University of Victoria. This article first appeared in the Toronto Star and is reprinted with the permission of the authors.

May/June 2009

School's In

The International School of Macau (TIS) Cyber Safety Fair

Lorine Sweeney A buzz of activity permeated the school library as students from grades three to six, along with some parents, learned from knowledgeable grade seven experts at the TIS Cyber Safety Fair. Student and parent guests circulated among the numerous information stations looking at videos and PowerPoint presentations, reading student-produced handouts and brochures, and asking questions. The grade seven students, who had spent three weeks preparing for the event, each manned a laptop computer on which they had loaded their focus presentations. These centred on various cyber safety topics such as cyber bullying, email spam, Internet fraud, and viruses. They also proudly offered free copies of their prepared print material.

May/June 2009

Student guests from the elementary school were thoroughly engaged in the presentations. They commented that they had learned to “be careful about people on the Internet who lie about their age,” and to try to stop Cyber bullies. “Cyber bullies must be the most bored people in the world if that is what they find fun.” When asked what they would do differently after the Fair, some answered, “I won’t go into chat rooms without my parents’ permission”, “I am going to stop sending chain mail because they might spread viruses”, and “I am going to go home tonight and change my password.”

LawNow

About TIS The International School of Macau (TIS), a school that houses students from pre-school to grade 12, lies in a special administrative region of China about 60 kilometres west of Hong Kong. The school was founded in 2002 to provide a Canadian curriculum for both local and expatriate students. TIS delivers the Alberta curriculum and is led by a principal who graduated from the University of Alberta. The International School of Macau demonstrates a high technological presence. Students are often engaged in “wired learning” with access to a large computer lab,

computers in the library, and four mobile laptop labs. Communication through email and web technology is the norm. Two technology teachers, Mark Harrison and Daniel D’Entremont, with ideas gleaned from various educational technology sites, crafted the guidelines for the technology fair held at TIS. Their objective was for students to achieve appropriate divisional information and technology outcomes - and what better method than asking the students to become both teachers and learners?

Examples from a Student Brochure Cyber Safety

Five tips to cyber safety are: 1. be careful about predators who lie about their age; 2. don’t give out personal information; 3. monitor the conversations you have with people; 4. don’t go into unknown chat rooms or forums; and 5. don’t give your name or phone number to unknown people.

To the Teachers: Planning a Cyber Safety Fair Background

Presentation

The following lesson is based on the one given to TIS students and can be easily adapted to Canadian classrooms.

You will be an expert at the Cyber Fair. The show will be set up in the school library and each of you will have a table with a laptop on which to display your PowerPoint. Movies and other clips may be embedded into the Power Point. To add to the depth of your information, you will also create enough handouts or brochures for each guest.

Objective Junior High Students are to use the Internet, PowerPoint, and other software to create and share information about cyber safety for an audience of parents and elementary students.

To the Students Students – you are going to become Cyber Safety experts. Elementary students and parents want to learn from you! You will research a Cyber Fair Safety topic and produce a PowerPoint Slide Show for a Cyber Safety Fair (like a trade show). To assist in providing information to your guests, you will also prepare a single page handout or a threefold brochure with a summary of your information.

Topics You will choose from the following topics. Be sure to focus on the safety side of each issue. 1. Safe Surfing 2. email and passwords 3. Identity Theft 4. Instant messaging 5. Scams and Fraud 6. Pop-ups and viruses 7. Online hate 8. Cyber bullying 9. Internet predators 10. For parents only

Finding your Information Begin by working through the pre-selected websites below and record your findings using a word processor. Make note of interesting images or additional links. You may use your search expertise to find more if you desire.

LawNow

May/June May/June2009 2009

Creating your Presentation The Brochure or One-Page Summary

Websites for Starting Points

Before you plan your PowerPoint, design the onepage summary and what you have learned during your research. • Consider your audience – are you writing for elementary students or for the parents only group? • Write the point you are trying to make in your own words. • List the common mistakes that elementary students or parents make. • List the safety tips you will put on your brochure and in your PowerPoint. • Find helpful resources you can suggest.

The following websites will get you started. Online safety and Digital ethics http://www.NortelLearniT.org

Information for kids, teens, and parents. http://www.msn.staysafeonline.com/

Guide for parents http://www.fbi.gov/publications/ pguide/pguidee.htm

Categorized by age with good parent information http://www.bewebaware.ca/english/default.aspx

Tips for cyber security http://www.staysafeonline.info/

Committed to everyone’s safety http://www.staysafeonline.info/

The PowerPoint • Remember that a PowerPoint is to be meaningful and to the point. • Do not cut and paste information, and acknowledge sources. • Make points short and in your own words. • Do not use unnecessary transitions or colours – choose for effect. • Insert movies and video clips within context and at appropriate times. • Create effective beginning and concluding slides. • Do not bore your audience.

Rich information for passwords and virus protection: http://nortellearnit.org/technology/Online_Safety/

Three very good sections http://tcs.cybertipline.com/knowthedangers.htm Safety with online predators: http://www.microsoft. com/athome/security/children/kidpred.mspx Focuses on hate on the Internet: http://www.mediaawareness.ca/english/issues/online_hate/index.cfm

Very good for cyber safety: http://www.protectkids.com/dangers/stats.htm

Get your tips here: http://www.atg.wa.gov/ safetynet/consumers.shtml

Includes good information about spam, pop-ups, and online purchasing: http://www.atg.wa.gov/safetynet/consumers.shtml

Lorine Sweeney, EdD is an educational speaker and writer with a background in curriculum and instruction.

May/June 2009

LawNow

L R C

Legal Resource Centre

The Legal Resource Centre, funded by the Public Library Development Initiative (PLDI) and the Alberta Law Foundation, has produced a series of booklets entitled The Law and You: Seniors and Older Adults. Titles in the series include: •

Making a Will

•

Making a Personal Directive

•

Making a Power of Attorney

•

Being an Executor

•

Being an Attorney

•

Being an Agent

•

Protecting Yourself from Consumer Fraud and Scams

•

Grandparents’ Rights

For more information, or to order copies, contact the Legal Resource Centre: Phone: 780-451-8764 Fax: 780-451-2341 Email: info.lrc@ualberta.ca

May/June 2009

Special Report: Officers of Parliament

Officers and Officials of Parliament The term “Officers of Parliament” has been used loosely and inconsistently, and in different contexts to refer to different things. The term has not been legally defined, and, presently, it is used to describe several related types of positions: • those members of the Senate and House who are appointed to certain offices in connection with Parliament; • independent, watchdog officers who report to Parliament; and • procedural officers and senior officials of the Senate, the House of Commons and the Library of Parliament. Traditionally, at the federal level in Canada, the term “Officers of Parliament” refers to those independent, accountability agencies created to assist Parliament in holding ministers and the bureaucracy accountable and to protect various kinds of rights of individual Canadians, or to carry out certain functions independent of the executive. The holders of these offices are responsible to Parliament rather than to the federal government or an individual minister, and their appointments (and removal from office) usually involve Parliament in some capacity. “Officers of Parliament” has further been used to refer to the offices of the Senate and the House

May/June 2009

of Commons that are occupied by politicians. These officers have a role to play in the operations of the chamber – the Speaker and other Chair occupants, the House Leaders, the party Whips, the caucus Chairs, and certain other offices. The term is also sometimes used to describe the senior staff of the Senate, House of Commons, and the Library of Parliament. These are the officers appointed to serve Parliament, independent of the executive, and who facilitate the functioning of the legislative branch.

Political Officers Senate Certain Senators hold leadership positions that are critical to the organization of the work of the Senate. These appointments are generally made on a political basis. The Senate uses the term “political officers” to describe these offices: the Speaker of the Senate, the Speaker pro tempore, the Leader of the Government in the Senate; the Leader of the Opposition; the Deputy Leader of the Government in the Senate; the Deputy Leader of the Opposition in the Senate; and the party Whips.

House of Commons Certain Members of the House of Commons are elected or appointed to serve in offices relating to the operation of the House. These are usually known as “House Officers,” and are political – as opposed to administrative – offices. Bylaw 302 of the House of Commons Board of Internal Economy includes the following definition: “House Officer” (“agent supérieur de la Chambre”) means the Speaker, the Deputy Speaker and Chair of Committees of the Whole House, the Deputy Chair and Assistant Deputy Chair of Committees of the Whole House, the Government House Leader, the Leader or House Leader of a recognized party, the Whip of a recognized party, the Chair of the national caucus of a recognized party, any Member who is a former Prime Minister and the Member designated by the leader of a recognized party to be responsible for the research office of the party, but does not include the Prime Minister of Canada.

Officers of Parliament The offices that are traditionally referred to as the “Officers of Parliament” are • the Auditor General (established 1868); • the Chief Electoral Officer (established 1920); • the Official Languages Commissioner (created in 1970); • the Privacy Commissioner (1983); • the Access to Information Commissioner (1983); • the Conflict of Interest and Ethics Commissioner (2007); • the Commissioner of Lobbying; and • the Public Sector Integrity Commissioner (2007). The Privy Council Office, and some governmental documents, refers to these officers as “Agents of Parliament,” thereby emphasizing that they carry out work for Parliament and are responsible to Parliament, and as a means of distinguishing them from other officers and officials of Parliament. It also emphasizes their independence from the government of the day. These “Officers of Parliament” carry out duties assigned by statute, and report to one or both of the Senate and House of Commons. The individuals appointed to these offices perform work on behalf of Parliament, and report to the chambers, usually through the Speakers. The appointment of such Officers usually – although not necessarily – involves the House of Commons and/or the Senate. It is important to note, however, that the appointment procedures for such Officers of Parliament are not consistent.

In recent years, other offices have been established with some of the attributes of the Officers of Parliament – principally an element of independence from government and a right to report to Parliament, as well as some parliamentary involvement in the appointment process. These include: the Canadian Human Rights Commissioner and the Public Service Commissioner.

Procedural Officers and Senior Officials Senate The senior procedural officers and other officials of the Senate exist to serve Parliament. They are responsible for the administration of the Senate as one of the constituent chambers of Parliament. The officials of the Senate are: • the Clerk of the Senate, • the Deputy Clerk of the Senate, • the Law Clerk and Parliamentary Counsel, • the Usher of the Black Rod, and • the Senate Ethics Officer (SEO).

House of Commons The House of Commons has senior procedural officers and other officials, who are responsible for the administration of the House. While appointed by the Governor in Council, they exist to serve the House of Commons, and are part of the legislative branch. The officials of the House of Commons are: • the Clerk of the House, • the Deputy Clerk, • the Clerk Assistant, • the Law Clerk and Parliamentary Counsel, and • the Sergeant-at-Arms.

Library of Parliament The Library of Parliament was established shortly after Confederation, and is currently provided for in sections 73 to 79 of the Parliament of Canada Act. The direction and control of the Library is vested jointly in the Speakers of the Senate and the House of Commons. The control and management of the Library rests with the Parliamentary Librarian, assisted by an Associate Parliamentary Librarian, both of whom are appointed by the Governor in Council. Since 2001, provision has also been made for the appointment of a Parliamentary Poet Laureate as an officer of the Library. In 2006, the Act was amended to include a Parliamentary Budget Officer as a senior officer of the Library; the Act sets out the selection process and the mandate of the office.

May/June 2009

Current cers CurrentOffi Offi cers Political Officers Senate Name

Function

Term (year)

Kinsella, Noël A.

Speaker of the Senate

2006 -

Losier-Cool, Rose-Marie

Speaker pro tempore

2006 -

LeBreton, Marjory

Leader of the Government in the Senate

2006 -

Comeau, Gerald J.

Deputy Leader of the Government in the Senate

2006 -

Cowan, James

Leader of the Opposition in the Senate

2008 -

Tardif, Claudette

Deputy Leader of the Opposition in the Senate

2007 -

Stratton, Terry

Government Whip in the Senate

2006 -

Munson, Jim

Opposition Whip in the Senate

2008 -

Hubley, Elizabeth

Deputy Opposition Whip in the Senate

2006 -

House of Commons Name

Function

Milliken, Peter Andrew Stewart

Speaker of the House of Commons

Term (year) 2001 -

Scheer, Andrew

Deputy Speaker and Chairman of Committees of the Whole of the House of Commons

2008 -

Savoie, Denise

Deputy Chair of Committees of the Whole

2008 -

Devolin, Barry

Assistant Deputy Chair of Committees of the Whole

2008 -

Hill, Jay D.

Leader of the Government in the House of Commons

2008 -

Goodale, Ralph Edward

Official Opposition House Leader

2006 -

Hill, Jay D.

Conservative Party House Leader

2008 -

Goodale, Ralph Edward

Liberal Party House Leader

2006 -

Paquette, Pierre A.

Bloc Québécois House Leader

2007 -

Davies, Libby

N.D.P. House Leader

2003 -

O'Connor, Gordon

Chief Government Whip

2008 -

Cuzner, Rodger

Chief Opposition Whip

2008 -

O'Connor, Gordon

Whip of the Conservative Party of Canada

2008 -

Cuzner, Rodger

Whip of the Liberal Party

2008 -

Guimond, Michel

Whip of the Bloc Québécois

2003 -

Godin, Yvon

Whip of the N.D.P.

2000 -

Lauzon, Guy

Conservative Party Caucus Chair

2008 -

Rota, Anthony

Liberal Party Caucus Chair

2007 -

Plamondon, Louis

Bloc Québécois Caucus Chair

2004 -

Crowder, Jean

N.D.P. Caucus Chair

2009 -

Harper, Stephen Joseph

Responsible for the Conservative Party Research Office

Rota, Anthony

Responsible for the Liberal Party Research Office

Duceppe, Gilles

Responsible for the Bloc Québécois Research Office

Layton, Jack

Responsible for the New Democratic Party Research Office

2007 -

Library of Parliament / Bibliothèque du Parlement. Current Officers of Parliament http://www2.parl.gc.ca/parlinfo/compilations/OfficersAndOfficials/CurrentOfficers.aspx)

May/June 2009

Officers of Parliament Parliament Name

Function

Fraser, Sheila

Auditor General

Term (year)

Mayrand, Marc

Chief Electoral Officer

2007 -

Fraser, Graham

Commissioner of Official Languages

2006 -

Marleau, Robert

Information Commissioner

2007 -

Stoddart, Jennifer

Privacy Commissioner

2003 -

Dawson, Mary Elizabeth

Conflict of Interest and Ethics Commissioner

2007 -

Ouimet, Christiane

Public Sector Integrity Commissioner

2007 -

2001 -

Procedural Officers and Senior Officials Senate Name

Function

Term (year)

Bélisle, Paul C.

Clerk of the Senate and Clerk of the Parliaments

1994 -

Audcent, Mark

Law Clerk

1996 -

MacLeod, Kevin

Usher of the Black Rod

2008 -

Fournier, Jean T.

Senate Ethics Officer

2005 -

House of Commons Name

Function

O'Brien, Audrey Elizabeth

Clerk of the House of Commons First female Clerk of the House of Commons

Term (year) 2005 -

Bosc, Marc

Deputy Clerk of the House of Commons

2005 -

Walsh, Robert R.

Law Clerk and Parliamentary Counsel

1999 -

Lajoie, Marie-Andrée

Clerk Assistant

2003 -

Isles , Beverley

Clerk Assistant (Acting)

2008 -

Gagnon, André

Clerk Assistant

2005 -

Janse, Eric

Clerk Assistant

2005 -

Vickers, Kevin M.

Sergeant-at-Arms

2006 -

Library of Parliament Name

Function

Young, William Robert (Bill)

Parliamentary Librarian

Term (year) 2005 -

Steffler, John

Parliamentary Poet Laureate

2006 -

Page, Kevin

Parliamentary Budget Officer

2008 -

Library of Parliament / Bibliothèque du Parlement Officers and Officials of Parliament http://www2.parl.gc.ca/parlinfo/compilations/OfficersAndOfficials/OfficersAndOfficialsOfParliament_MoreInfo.aspx);

May/June 2009

Special Report: Officers of Parliament

The Office of the Correctional Investigator Charles Davison

Our common, daily experience tells us that in any situation where groups of human beings are required to live in close proximity to one another, disputes and conflicts will arise. And this is especially so where one group is given authority and power over the other. The most obvious example of this truism is probably found in our correctional system where one group of persons — the correctional staff (“guards”) — is given legal authority over almost all aspects of the lives of another — the convicted offenders (“inmates” and “prisoners”). Such a situation is guaranteed to generate significant conflict and tension often over fairly minor matters which we in the outside world would overlook or ignore. In the context of two groups of people living and working, day by day, in such circumstances, minor issues can easily become a flash point for much more serious disputes and confrontations. The lack of any ability by inmates to voice and obtain redress for their grievances led to the 1971 major riot in the Kingston Penitentiary. Guards

May/June 2009

were taken hostage and inmates were tortured (two died). When the subsequent inquiry issued its report, it noted (as had been observed by other commissions and inquiries over the years) that whether the grievances of the inmates were legitimate or not, a mechanism was required to ensure that they could be addressed and resolved in a way which would preserve the good order and operation of the penitentiary. Leaving even small complaints unattended amounted to a recipe for violent disturbances and disruptions of institutional life and operations. One result of the riot and the report was the creation of the Office of the Correctional Investigator by an Order-in-Council issued in 1973 under the Inquiries Act. This was supposed to be a temporary measure, but nothing more was done until the enactment of the Corrections and Conditional Release Act in 1992. At that time, the Office was established formally as a permanent part of Canada’s federal correctional system. The office and powers of the Correctional Investigator (C.I.) are now defined and described in the Act,

The lack of any ability by inmates to voice and obtain redress for their grievances led to the 1971 major riot in the Kingston Penitentiary. Guards were taken hostage and inmates were tortured (two died).

which is the federal legislation governing the operations of Canada’s penitentiary and parole systems. Under its terms, the federal Cabinet appoints the Correctional Investigator who holds that position for five years (he or she can then be reappointed for a further term). The Investigator is empowered to employ a staff, as he sees fit, whose duties are to investigate the complaints and problems of inmates arising from decisions or actions of the Correctional Service and officers who are members of that agency. If necessary, hearings can be held in such investigations, and the C.I. has the power to compel persons to produce information and documents, and to answer questions under oath. The Investigator also has the power to enter any premises operated by the Correctional Service of Canada for the purposes of inspecting that place or for carrying out any investigation or enquiry. Where warranted following an investigation, the C.I. may issue a report containing recommendations and findings, although none of the results of this process are binding on the Correctional Service or the National Parole Board. In an effort to ensure that the Investigator is able to fully and completely perform these tasks, he and his staff have been given various powers and protections by the law. Nothing the C.I. does or refuses to do can be challenged or reviewed through court proceedings, and the office-holder and his staff are

What all of this means on a day-to-day basis is that inmates have almost unfettered access to the Correctional Investigator’s office. It is a place to which they can turn for free, and usually timely, assistance in addressing and attempting to resolve complaints and grievances about how they are being treated inside our penitentiaries and federal correctional institutions.

protected from criminal and civil liability for all actions done or words said in good faith as they perform their functions. The C.I. and staff members may not be made subject to any power to summons witnesses. Anyone who hinders or interferes with an investigation, who fails to comply with a lawful demand or requirement of the Correctional Investigator, or who makes a false statement to or attempts to mislead the C.I. or his staff may be prosecuted, and fined if convicted. What all of this means on a day-to-day basis is that inmates have almost unfettered access to the Correctional Investigator’s office. It is a place to which they can turn for free, and usually timely, assistance in addressing and attempting to resolve complaints and grievances about how they are being treated inside our penitentiaries and federal correctional institutions. Upon receiving a complaint, an investigator is able to follow up with correctional staff in a more direct and efficient way than would be the case if the inmate were required to attempt to deal with the problems on his own. This is especially the case when one considers that the complaints of the inmate are usually about the conduct of the same persons to whom he would otherwise have to turn for assistance and redress. Where necessary, the investigator will meet with the inmate and staff members involved in the dispute and can ultimately make recommendations about a resolution. (In 2007, the C.I.’s staff spent 344 days in penitentiaries conducting more than 2,800 interviews with inmates and over 4,200 interviews with staff in efforts to resolve almost 8,000 complaints.) The Correctional Investigator issues a report every year to outline and review the work he has done during the last 12 months. In addition to meeting with and attempting to address the problems of individual prisoners, the C.I. and his staff also meet with community organizations and groups of inmates and their supporters in order to address special situations or broader areas of interest or concern to incarcerated persons. This has sometimes led to special reports being issued or to particular themes being emphasized in the annual reports filed by the Correctional Investigator. In his report for the year 2005-2006, for example, the Correctional Investigator paid particular attention to the situation of Aboriginal offenders. He made a number of pointed recommendations as to how the Correctional Service might better implement the requirements of the legislation and relevant policies when it comes to addressing the situation of native persons behind bars. In 2007, the Investigator issued a special report on inmate deaths in custody after studying cases from 2001 to 2005 where prisoners had died in federal institutions.

May/June 2009

As is the case with other types of ombudspersons, the Office of Correctional Investigator exists to provide impartial and independent assistance to a group of persons whose concerns and complaints might otherwise be all-to-easily ignored, overlooked, and forgotten. Most of these concerns arise from relatively small issues and disputes which do not lend themselves to the time and expense of courtroom litigation (even if the inmates could afford to retain counsel to assist them, which is usually not the case). In such situations, what often matters even more than the actual outcome of the dispute, is its fair determination by an objective third party who has taken the time to listen to, and has treated with respect the input and views of the aggrieved individual. The Correctional Investigator fulfills a necessary and vital role by assisting in the peaceful resolution of at least some disputes and controversies between prisoners and their keepers within the Canadian correctional system. Charles B. Davison is a lawyer with the firm of Abbey Hunter Davison Spencer in Edmonton, Alberta.

As in the case with other types of ombudspersons, the Office of Correctional Investigator exists to provide impartial and independent assistance to a group of persons whose concerns and complaints might otherwise be all-toeasily ignored, overlooked, and forgotten.

Acknowledgments Michael Jackson’s Justice Behind the Walls: Human Rights in Canadian Prisons (2002) was the source of information about the pre-1992 history leading to the establishment of the Office of the Correctional Investigator. The 2007 statistics relating to the activities of the staff of the Correctional Investigator were obtained from the C.I.’s website.

Howard Sapers has been Canada’s Correctional Investigator since 2004. In that time, he has produced a number of significant reports, such as the 2007 report on Deaths in Custody, and the 2009 report into the death in custody of Ashley Smith. Mr. Sapers was recently re-appointed to a further 5-year term.

Available now!

ABC LawPac

Charter Challenges for Grade Six is designed as a teaching and learning resource for grade six students. Students are offered the choice of visiting either the fictional animal land of Adinak or the alien planet of Beebonk. There they explore stories that may be considered unfair, and decide if these situations could be successfully challenged under our existing Canadian Charter of Rights and Freedoms. The stories explore four sections of the Charter. • Mobility Rights • Equality Rights • Search and Seizure • Freedom to Associate

Rufus the Raccoon

For more information contact info.lrc@ualberta.ca Orion Axel

May/June 2009

Special Report: Officers of Parliament

The Linda Keen Affair and Political Independence Duane Bratt

In December 2007, a dispute between Atomic Energy of Canada Limited (AECL) and the Canadian Nuclear Safety Commission (CNSC) over the Nuclear Research Universal (NRU) reactor at Chalk River, Ontario burst into public consciousness after brewing for several years. In the aftermath of this decision, many key decision-makers either resigned or were fired: • AECL replaced its Chief Executive Officer, Chairman of the Board of Directors, and some other senior officials; • Natural Resources Minister Gary Lunn was eventually demoted to Sport Minister; and • CNSC President Linda Keen was fired.

This is a very complicated issue that affects many different aspects of nuclear power in Canada and will have a long lasting legacy. More details will emerge through the courts. Linda Keen has launched a wrongful dismissal suit. MDS Nordion, the purchaser of medical isotopes, has sued AECL for its decision to cancel its MAPLE project that would have become the new producer of the isotopes. However, this discussion will remain restricted to the issue of political independence of regulatory bodies. This brief article argues that it was appropriate for Keen to be overruled in her decision to keep the NRU shut-down, but she should not have been fired. Keen’s firing was indeed for political purposes, and this could potentially jeopardize the nuclear industry in Canada.

May/June 2009

The NRU began operations in 1957 and is the dominant supplier of medical isotopes in Canada and throughout the world. Medical isotopes are used for over 4,000 medical procedures in Canada and around 43,000 globally per day. Not only are there few global suppliers, but isotopes have very short half-lives, meaning that they cannot be stockpiled. For example, Molybedeum-99 has a half-life of only 66 hours. A final problem is that Canada has no back-up system for producing isotopes in the absence of the NRU. Two 10-megawatt reactors, called MAPLEs, were designed to replace the NRU reactor in the production of medical isotopes, but because of technical and regulatory problems, the MAPLE reactors were several years behind schedule. Eventually, the entire MAPLE project was cancelled after hundreds of millions of dollars had been spent. In August 2006, the NRU’s licence was renewed by the CNSC until October 2011. As part of the licence renewal, AECL was required to complete a number of safety upgrades to bring the reactor up to international standards. The heart of the dispute between AECL and CNSC was whether these upgrades included the connection of one or two back-up pumps to a seismically qualified Emergency Power Supply (EPS). During a routine maintenance shut-down in November 2007, CNSC discovered that only one pump had been connected. It determined that AECL was in breach of its licence and would not allow the NRU to reopen. It needs to be emphasized that the issue was not public safety but whether AECL was operating the NRU within its licensing framework. Fearing a major health crisis due to the absence of medical isotopes, both Minister of Natural Resources Gary Lunn and Minister of Health Tony Clement searched for a solution. Ultimately, emergency legislation was tabled on the morning of December 11, 2007 and, after an allparty debate in both the House and the Senate, was passed unanimously by the Canadian Parliament on December 12. The law overrode CNSC’s ruling and permitted AECL to restart NRU with only one pump connected for 120 days. On December 16, the NRU resumed normal operations. Talisman International, an American consulting firm with extensive experience in nuclear regulation, was commissioned by AECL and CNSC to deliver a “lessons-learned” report. Talisman, whose terms of reference asked it to focus on process and procedures and not individual shortcomings, identified communication problems and unclear licensing conditions. Blaming both sides, Talisman made a number of detailed short-term and long-term recommendations in the areas of communications, licence renewal, probabilistic safety assessment, and the like.

May/June 2009

The purpose of the CNSC is to enforce the Nuclear Safety and Control Act (NSCA) by “protect[ing] the health, safety and security of Canadians as well as the environment, and respect[ing] Canada’s international commitments on the peaceful use of nuclear energy.”

Both AECL and CNSC have accepted the report in its entirety, and Canada’s regulation of its nuclear industry will be substantially strengthened if these recommendations are implemented. Canada has a number of regulatory agencies in a wide variety of fields for the purpose of enforcing government policy. Examples include the Canadian Radio-Television and Telecommunication Commission, the Canadian Labour Relations Board, and the Canadian Pension Commission. The purpose of the CNSC is to enforce the Nuclear Safety and Control Act (NSCA) by “protect[ing] the health, safety and security of Canadians as well as the environment, and respect[ing] Canada’s international commitments on the peaceful use of nuclear energy.” The CNSC, like several other regulatory bodies, has been granted quasi-judicial powers. This means that it can “judge specific cases involving the granting, denial, or removal of licences, the approval of rates or fares and the censuring of failure to comply with terms of licenses.” The CNSC Tribunal, a seven-person board chaired by the President, makes the final licensing decisions. An unusual aspect, and one that is a source of ongoing controversy, is that the CNSC reports, as does AECL, through and to the Minister of Natural Resources. The public relies on the CNSC to certify that nuclear facilities are safe. However, the firing of Linda Keen potentially jeopardized the credibility of CNSC. It is one thing for a cabinet minister to resolve a scientific dispute between two acknowledged nuclear expert groups (AECL and CNSC), or to adjudicate between a known health risk and the remote possibility of a nuclear accident. However, it is quite another thing to then fire one of those

the preliminary assumption is that Linda Keen’s firing was due to political pressure. If, in the future, the CNSC declares that nuclear facilities in Canada are operating in a safe fashion, how can the public be sure that this is not due to political interference as opposed to expert judgment?

It is one thing for a cabinet minister to resolve a scientific dispute between two acknowledged nuclear expert groups (AECL and CNSC), or to adjudicate between a known health risk and the remote possibility of a nuclear accident. However, it is quite another thing to then fire one of those experts for “speaking truth to power.”

experts for “speaking truth to power.” Independent quasi-judicial administrative tribunals, like CNSC, must be independent of government interference. Just prior to her firing, Keen publicly released a set of correspondence between herself and Minister Lunn. In these letters, Keen emphasized that “while the CNSC reports through you to Parliament, neither the CNSC nor its President are obliged to report to you on the status of particular licensing matters before the CNSC.” She also reminded Lunn that a “fundamental element of independence of quasi-judicial bodies like the CNSC is security of tenure for members,” but, in her case, “the threat of removal is entirely and exclusively based on an assessment of the steps taken — or not taken — by the CNSC in respect of the extended shutdown of the NRU reactor.” The government argued that the issue was not of political independence but of leadership and confidence. According to the government, Linda Keen “failed to take the necessary initiative to address the crisis in a timely fashion using the means at her disposal … failed to demonstrate the leadership expected by the Governor in Council and no longer enjoys the confidence of the Governor in Council.” In addition, the government stated that Keen was only being removed as President of the CNSC Tribunal; she would remain a member of the Tribunal. The NSCA states that members of the Tribunal can only be removed “for cause,” but the President serves at the pleasure of the government. This point is contested by Keen in her wrongful dismissal suit. It should also be noted that Keen has subsequently resigned her position on the Tribunal.

The government was correct to override the CNSC and reopen the NRU. The health risk caused by a lack of isotopes outweighed the potential risk of a reactor accident. Even the CNSC admitted that the NRU was still safer with only one pump connected than it had ever been over its fifty years of operation. However, the government was wrong to remove Keen from her position. Keen provided her expert judgment on the safety of the NRU and AECL’s compliance with CNSC licensing requirements. There is an inherent tension between regulator and licensee; the government should establish broad policy direction but not become involved in specific regulatory decisions. The government should only intervene when this tension leads to externalities that put human health or safety at risk. There are additional factors which support the assertion that the firing of Keen was due to political pressure. In particular, the CNSC, under Linda Keen, had terminated pre-licensing activity for AECL’s new ACR-1000 reactor. If the ACR-1000 was not prelicensed, it would have put AECL at a significant competitive disadvantage with the competing reactor companies of Areva, General Electric-Hitachi, and Westinghouse-Toshiba just as a Canadian and global nuclear revival was taking place. The new CNSC President, Michael Binder, quickly agreed to prelicense the ACR-1000, and the government over the last two budgets has committed almost half a billion dollars to the process. This is strong evidence that the isotope crisis was the opportunity to fire Keen not the cause. If so, this shows that there has been political interference in CNSC. In conclusion, while more details on this case have yet to be released, the preliminary assumption is that Linda Keen’s firing was due to political pressure. If, in the future, the CNSC declares that nuclear facilities in Canada are operating in a safe fashion, how can the public be sure that this is not due to political interference as opposed to expert judgment? AECL and the Canadian nuclear industry should also be concerned. This is because public perceptions about the safety of nuclear reactors are critical if Canada is to participate in the global nuclear revival. The Linda Keen affair has the potential to jeopardize confidence in CNSC and with it confidence in the Canadian nuclear industry. Duane Bratt is a professor with the Department of Policy Studies, Mount Royal College in Calgary, Alberta.

The government was correct to override the CNSC and reopen the NRU … However, the government was wrong to remove Keen from her position.

May/June 2009

Columns 36 Not-for-Profit Law Tax Cuts, Tax Credits: A Balancing Act Peter Broder

38 Insurance Law Voluntary Insurance (I wish I had bought insurance!) Jim McCartney

40 Human Rights Law Asking for an Accommodation Linda McKay-Panos

42 Online Law Protecting Personal Privacy Kirsten Wurmann

44 Criminal Law "Technicalities": Do They Exist? Deborah R. Hatch

46 Law and Literature Occupation Without End: The Palestinian â&#x20AC;&#x201C; Israeli Conflict Rob Normey

May/June 2009

receives, on their federal taxes, 15% on the first $200 and 29% on the remaining $800 regardless of income. This is topped up by a provincial credit usually based on the tax rates in the province where the donor resides. Peter Broder The charitable tax credit is structured to offset tax payable at the top marginal rate – that is, the full amount of taxes paid on personal income used for donations can be recouped. Where donors are not in the top bracket or use property from capital for the gift, they enjoy a tax credit that more than offsets the tax they pay on the income used nership between donors and governments Everyone likes a tax cut. for the donation. The recently announced federal budget fea- in supporting registered charities through The change from deduction to credit was the tax system. Historically, the tax credit tured about $20 billion in personal income made before the introduction of the Goods amounted to what was, for those in the top tax cuts, and although there was some conand Services Tax (GST), which was a major tax bracket, a 50-50 sharing of the cost of troversy over the merit of the measure in step in moving from an emphasis – at least donations between government and taxpaystimulating the economy, it was politically in the 20th century – on taxing income, to ers. Now that sharing is more likely to be popular. The post-budget analysis featured a 60-40, with the taxpayer bearing the greater good deal of commentary about whether the one focusing more on taxing consumption. cuts would have more or less impact than gov- portion. Further efforts in this direction, such as the In the late 1980s Canada moved from a ernment spending on infrastructure or other much discussed introduction of a carbon deduction for charitable giving to a nonbudget measures. In the current economic tax, potentially impact the economics of tax refundable tax credit. In part, this was to context, that is obviously a major concern. credits. This needs to be factored into deciaddress the inequity of individuals in higher sions to adopt such measures, or adjusted Not discussed in this analysis was the income brackets receiving a larger tax effect of tax cuts on tax credits. An often when the measures are implemented. advantage from their charitable giving than overlooked consequence of tax cuts is that Here’s why. someone in a lower tax bracket. they reduce the value of tax credits, such as In 1988, the top combined marginal An example may help here. Under the the one for charitable donations, and therefederal and provincial tax rate in Canada old system, a person earning $100,000 and fore increase the marginal cost to a taxpayer ranged from 53.3% in Newfoundland to paying a marginal tax rate of 50%, who of making a donation. When tax rates fall, 45.6% in Alberta. Nova Scotia featured the deducts $1,000 for his or her charitable dona- highest top rate in 2008 at 48.25%, with more of the cost of a gift is borne by the tions, enjoyed a tax saving of $500. Whereas, Alberta again being the lowest at 39%. donor from his or her disposable income, a person earning $50,000 and paying a marand less comes from what would otherwise Across Canada, rates have fallen anywhere ginal tax rate of 30%, making the same have gone to the government as taxes. from 5 to 10% over those twenty years. (In $1000 in donations, saved only $300 in tax. Cutting tax rates is routinely touted as some cases, rates early in the period may So Canada moved to a non-refundable encouraging charitable giving because it have been even higher owing to the surtaxes credit system, where a $1,000 donation provides tax payers with more disposable that were common at that time.) yields the same tax advantage for someone income. But there is a contrary argument The shift from income to consumption with a $100,000 income as it does for that people are less likely to give if the taxes is partly responsible for this drop. But someone with a $50,000 income. cost of a donation comes out of their own other factors, including the generally healthUnder the new system, the income with pockets, rather than from re-directing their ier fiscal position of federal and provincial which the donation was made is not exempt tax dollars to charities. governments in the last few years, and the from tax, but – at 2008 rates – everyone with Moreover, falling rates over the past two election of parties favouring tax cuts also taxable income claiming $1,000 in donations decades have eroded the once equal partcontributed to the reduction in rates. In 1988, an Albertan in the top bracket would have paid $456 tax on income of $1,000. His 2008 counterpart would have had tax payable of only $390. So that Alberta An often overlooked consequence of tax cuts is that they reduce the value of tax donor would have had an after tax cost of only $544 on a $1000 donation in 1988, credits, such as the one for charitable donations, and therefore increase the marginal whereas in 2008 the after tax cost would have cost to a taxpayer of making a donation. jumped by more than 12% to $610. Federally – and in most provincial jurisdictions – the rate of the charitable tax credit

Not-for-Profit Law

Tax Cuts, Tax Credits: A Balancing Act

May/June 2009

has remained roughly the same over the last twenty years. Indeed, the federal government and some provinces have lowered rates on the credit to reflect lower taxes paid on personal income. For example, the 1988 federal rate for the lower tier of the credit was 17%, but is now 15%, since that is the effective federal rate for income in the lowest bracket of taxable personal income. In fairness, it should also be noted that in the early 1990s, there was a move led by the federal government to lower the threshold at which the higher rate applied from $250 to $200. But this did not significantly alter the equation of how the burden of making the contribution was shared. In Alberta, introduction of the Community Spirit program and the increase in the top tier of the provincial tax credit to 21% in 2007 has redressed the decline in the government’s proportionate sharing of the cost of charitable contributions. But in other jurisdictions, including at the federal level, no steps have been taken to offset the growth in this cost inequity between the donor and the government. In the last few years, high-end measures to enhance the charitable tax credit, mostly having to do with reducing the amount of capital gains payable on certain types of donations, appear to have helped in stemming what would likely otherwise have been a decline in overall giving.

In Alberta, introduction of the Community Spirit program and the increase in the top tier of the provincial tax credit to 21% in 2007 has redressed the decline in the government’s proportionate sharing of the cost of charitable contributions. But in other jurisdictions, including at the federal level, no steps have been taken to offset the growth in this cost inequity between the donor and the government.

Canada Revenue Agency figures show that while total donations and the size of the average donation have been edging up in recent years, the percentage of taxpayers claiming the donation credit has been declining. That is, bigger donations by fewer people. We don’t know if raising the rate of the tax credit, so that the relative contributions made by government and the donor more closely resemble those when the credit was introduced, would reinvigorate small-scale giving. To date, Canadian research has not shown any clear correlation between the value of the tax credit and the amounts donated. But it is clear that as personal income tax rates decline, the marginal cost of making a donation increases, and governments’ share in the expense of donations falls. If we move

to a system heavily reliant on consumption taxes, the government share of donation costs could plummet even more sharply. This is not to say we shouldn’t have tax cuts. But as with indexing of other income tax provisions, the charitable tax credit should be adjusted to restore an equitable sharing of costs between the government and the taxpayer. There shouldn’t be a windfall to governments as a consequence of a measure that is ostensibly about making taxpayers better off. Peter Broder is Policy Analyst and General Counsel at The Muttart Foundation in Edmonton, Alberta. The views expressed do not necessarily reflect those of the Foundation.

PATENTS ◆ TRADEMARKS ◆ DESIGNS

THOMPSON ◆ LAMBERT LLP PATENT AND TRADEMARK LAWYERS Practice Restricted to Intellectual Property Law

Canadian and Foreign Applications PATENTS • TRADEMARKS • DESIGNS Searches • Licencing • Litigation Tel. 780-448-7326 Fax. 780-433-5719 inquiries@thompsonlambert.ca. ◆ www.thompsonlambert.ca Suite 200-10328-81 Avenue, Edmonton, Alberta, Canada T6E 1X2

May/June 2009

Insurance Law Jim McCartney

Voluntary Insurance (I wish I had bought insurance!) Automobile insurance is required by law, and home insurance is required by mortgage companies. Condo and apartment insurance policies are usually required by the condo association by-laws or the apartment lease. Voluntary or optional insurance includes a broad mix of available insurance products. Examples include umbrella or excess coverage and travel insurance (which might include trip cancellation costs, medical expenses, rental car coverage, and accidental death coverage). As always, read the whole policy to know what coverage you have.

Umbrella Insurance This type of insurance acts like an umbrella over your other insurance policies such as home or automobile insurance (the underlying policy). Most umbrella policies require that the underlying insurance have a coverage limit of at least $1,000,000. That underlying policy must be in place before the umbrella policy has any effect. Here is an example: you have a home insurance policy and an automobile insurance policy that each has a limit of $1,000,000. You decide that that is not enough, particularly in the case of your automobile coverage, where a serious atfault accident could make you liable far in excess of that amount. You can purchase an umbrella policy that will increase your effective limit on both policies to $2M, $3M, or higher. So, if you cause a loss amounting to $2.5M, your underlying policy would pay the first $1M and the umbrella policy would pay the portion between $1M and $2.5M. The annual cost to increase from $1M to $4M might reasonably be around $300. If

you increased the limit in each of the policies separately, the cost would likely be much more. The umbrella policy covers you for claims made against you by others with the same coverage and for the same things that your underlying policies cover. (Limits or sub-limits in your underlying policy that are lower than the required minimum of, say, $1M are not increased or affected by the umbrella policy).

Travel Insurance This type of insurance comes in many forms and is available from many sources. As an add-on to your home (or condo or apartment) insurance, this can be quite inexpensive — about $150 per year. It is not readily available to high-risk travellers such as the elderly, people travelling against medical advice, or those with a terminal illness. Travel insurance often provides for the payment of health care costs including hospitalization, doctors, diagnostic procedures, paramedics, drugs, and ambulances. It can also include the cost of transporting a person of your choice to be at your bedside or to identify your body in the case of death. It can pay to return your family

home and ship your car home. Note that expenses caused in whole or in part by a pre-existing medical condition are not covered. Travel insurance policies often include trip cancellation or trip interruption coverage that reimburses you for money lost when you must cancel a trip. Circumstances that give rise to coverage include: • sickness, injury, or death (yours or that of a family member, travelling companion, business partner, key employee, or your destination host); • loss of employment; • your home being destroyed or becoming uninhabitable; • summonses for jury or witness duties; • being named in a civil court proceeding; • newly introduced government travel restrictions; and • missing your flight (or train, boat, etc.) when your method of getting there was delayed because of weather, mechanical failure, road closure, or accident (so long as you would, in the normal course, have arrived at least 2 hours before departure — a tricky restriction for people habitually running late). There are usually quite demanding requirements for reporting the problem very soon after it occurs. Take this type of policy with you so you know what coverage you have and what numbers to call.

Credit Card Travel-Related Insurance Many premium credit card plans offer or include some type of travel insurance. The annual premium for such coverage might be in the range of $100 or it may be included in a higher all-inclusive cost for the card. An important type of coverage relates to rental cars and the collision damage waiver or loss damage waiver (LDW).

Travel insurance often provides for the payment of health care costs including hospitalization, doctors, diagnostic procedures, paramedics, drugs, and ambulances. It can also include the cost of transporting a person of your choice to be at your bedside or to identify your body in the case of death.

May/June 2009

Car rental agreements contain a clause like this: (from a well-known rental company) “Any physical damage to the vehicle is the sole responsibility of the renter, regardless of fault, unless the Loss Damage Waiver is purchased. The waiver may have a deductible for which you are responsible.” The cost shown on the company’s website for the LDW associated with the rental of a standard size vehicle is $27 per day or about 40% of the daily rental charge. A typical credit card with this feature would cover damage to or theft of the rental car, towing, and the rental car company’s charges for loss of use of the car while it is being repaired. It is important to note that you must use the credit card that includes this coverage at the time you reserve or rent the vehicle. A four-day rental would save the annual cost of having the card. Perhaps your employer would reimburse you for the annual cost of the card if your business trips require that you frequently rent a car, you

Credit card travel coverage may include life insurance for the cardholder’s death with a benefit of perhaps $500,000, so let your family know that you have this type of coverage.

use your own credit card, and you decline the rental company’s LDW. Typical coverage also insures against loss of your personal property in the rental car, the cost of getting you home, and probably assistance with getting cash, documents, and tickets, and finding or replacing lost baggage. Coverage for loss caused by late baggage arrival (after at least 24 hours) is usually limited to a few hundred dollars. Credit card travel coverage may include life insurance for the cardholder’s death with

a benefit of perhaps $500,000, so let your family know that you have this type of coverage. Take the policy with you so you know your coverage, obligations, and who to call. The contact telephone number is often not the same as the one on the back of your credit card. Have a good trip! Jim McCartney, LL.B., C. Med., C. Arb., is an arbitrator and mediator in Calgary, Alberta.

A website for Albertans! www.landlordandtenant.org includes information on Becoming a Tenant, Moving In, Living There, and Moving Out. Use FAQs or Just the Facts to access the information you need! Legal Resource Centre

May/June 2009

Human Rights Law Linda McKay-Panos

Asking for an Accommodation Human rights laws have been interpreted to require employers, landlords, and service providers to accommodate to the point of undue hardship, those who have disabilities or who require accommodation for religious holidays, or on other grounds covered by the legislation. A significant body of cases has developed around the duty to accommodate. However, some recent decisions have focused on the complainant’s responsibility to work with the employer, etc., when he or she has asked for an accommodation. According to the Alberta Human Rights and Citizenship Commission (AHRCC): Accommodation means making changes to certain rules, standards, policies, workplace cultures and physical environments to ensure that they don’t have a negative effect on a person because of the person’s mental or physical disability, religion, gender or any other protected ground. (See: Duty to Accommodate: Interpretive Bulletin, 2002 online: http://www.albertahumanrights.ab.ca/Bull_DutytoAccom. pdf (“Interpretive Bulletin”))

Since employers, etc. have to accommodate people only to the point of undue hardship, what is considered an undue hardship? According to the AHRCC’s Interpretive Bulletin, the following factors may be looked at when determining whether a person has been accommodated to the point of undue hardship.

• Cost: financial costs must substantially affect productivity or efficiency of the employer or service provider; lost revenues will be taken into account; • Size and resources of employer or service provider: these affect the ability of the employer to absorb the costs of modifying the premises or equipment and the ability to amortize such costs; • Disruption of operations: the extent to which the inconvenience would prevent the employer or service provider from carrying out essential business; • Morale problems of other employees brought about by accommodation; the negative impact of increased workload or working too much overtime; • Substantial interference with rights of other individuals or groups: e.g., a substantial departure from the terms of a collective agreement; • Interchangeability of work force and facilities: can the employer or service provider relocate employees to another position on a temporary or permanent basis?; and • Health and safety concerns: would the accommodation violate health and safety regulations? Both the person seeking accommodation and the employer or service provider have rights and responsibilities. Accommodation is not a one-way street. The Interpretative Bulletin notes some general

Since employers, etc. have to accommodate people only to the point of undue hardship, what is considered an undue hardship?

responsibilities of the person seeking accommodation: • Determine whether a concern falls under any of the areas and grounds protected under the HRCMA; • Inform the employer or service provider about the need for accommodation; and • Bring the situation to the attention of the employer or service provider, preferably in writing. Include the following information: – an explanation of why accommodation is required (for example, because of disability, religious belief, pregnancy, family status, etc.) – support evidence or documents (for example, a written statement from a health care provider or written information about specific religious practices). – specifics about the need for accommodation and identify personal limitations. Individuals who share a characteristic such as impaired vision often have different needs. Therefore, it is important to indicate exactly what the individual needs are. – suggestions of appropriate accommodation measures. – an indication of how long accommodation will be required, if known.

Other Suggestions • Allow a reasonable amount of time for the employer or service provider to reply to the request for accommodation; • Listen to and consider any reasonable accommodation options that the employer or service provider proposes; • Consult an expert such as a human rights officer, human resources officer, union representative or lawyer if it is difficult to determine if the proposed options are reasonable; • Request details of the cost or other factors creating undue hardship, if the employer or service provider indicates that accommodation would pose an undue hardship; • Provide more details about your needs if such information is helpful; • Make a formal agreement with the employer or service provider, preferably in writing; • Cooperate to make the agreement work; • Advise the employer or service provider of changes in accommodation needs and

May/June 2009

attempt to agree on a modified accommodation arrangement; • Be willing to review and modify the accommodation agreement if circumstances or needs change and the agreement is no longer working; and • Tell the employer or service provider if the need to accommodate ends. A recent Alberta Court of Appeal decision illustrates the duties of the person seeking accommodation. In Brewer v. Fraser Milner Casgrain LLP, 2008 ABCA 435, Ms. Brewer, a legal assistant, suffered from a condition described by her doctor as multiple chemical sensitivities, which caused dyspnea (laboured breathing), chest tightness, light-headedness, rashes, dizziness and disorientation. Triggers included scents, perfumes and chemical smells. Despite several attempts to decrease the exposure to the triggers while working, Ms. Brewer ended up unable to work at the law firm. Brewer argued that her employer did not make reasonable efforts to accommodate her disabilities. An investigator assigned by the Human Rights and Citizenship Commission concluded that Ms. Brewer had not adequately cooperated with the employer’s accommodation efforts, and thus the complaint should be dismissed. The Director agreed and dismissed the complaint. When Ms. Brewer applied to the Chief Commissioner for a review of the dismissal, the Chief Commissioner upheld the dismissal. In his reasons, the Chief Commissioner stated that the respondents were “justified in rejecting her contention that she had a physical disability … ” (para. 22). He supported this conclusion because: no physician had provided a firm diagnosis of multiple chemical sensitivity; Ms. Brewer denied the investigator direct access to her doctors; Ms. Brewer resisted her employer’s request for a current specialist’s assessment of her condition; and surveillance of Ms. Brewer conducted by the insurer to whom she had applied for long term disability benefits brought into question how incapacitated and restricted she really was (para. 27). Brewer applied for judicial review of the Chief Commissioner’s decision. The Court of Queen’s Bench held that the Chief Commissioner erred when he assumed that the employer denied that the respondent had

May/June 2009

Thus, accommodation imposes rights and responsibilities on both parties. Not only must the employer accommodate the employee to the point of undue hardship, but the employee must also cooperate with the efforts of the employer to accommodate.

a disability (see: Brewer v. Fraser Milner Casgrain LLP, 2006 ABQB 258). Further, the Chief Commissioner was wrong to equate a physical disability with a firm diagnosis, because the presence of symptoms could be a sufficient disability under the statute even if the doctors were unsure of the cause. Also, the Chief Commissioner was not justified in drawing an adverse inference from Brewer’s denial of direct access to her doctors. Finally, there was not enough surveillance evidence gathered by the insurer to prove that Brewer did not have a disability. The Court of Queen’s Bench also found that the Chief Commissioner’s decision that the employer had met its duty to accommodate was unreasonable (para. 49). This conclusion was based on the way that the employer had implemented some of the recommendations made by a doctor. For example, the doctor had recommended some changes to Ms. Brewer’s work environment, which were not implemented by the employer. Instead, the employer reassigned Brewer to a new workspace, which she refused to try out, as she believed her employer should have modified her existing work environment. The decision of the Chief Commissioner was quashed. The Human Rights Commission and the employer appealed to the Alberta Court of Appeal. In its Memorandum of Judgment,

the Court of Appeal held that the Court of Queen’s Bench actually applied an overlystrict standard of review (correctness) rather than the one required in the circumstances (reasonableness). The Court of Appeal held that the complainant had not been willing to try the accommodation proposed by the employer. The Chief Commissioner was reasonable to conclude that the duty to accommodate had been discharged by the employer and then dismiss the complaint (para. 25). The employer’s and Chief Commissioner’s appeal was allowed. Thus, accommodation imposes rights and responsibilities on both parties. Not only must the employer accommodate the employee to the point of undue hardship, but the employee must also cooperate with the efforts of the employer to accommodate. As noted by the AHRCC in the Interpretative Bulletin: “In order for the accommodation process to work effectively, individuals seeking accommodation and employers or service providers must work together. Effective accommodation is mostly the result of good communication, creativity and flexibility.” Linda McKay-Panos, BEd, LLB, LLM is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.

Online Law Kirsten Wurmann

Protecting Personal Privacy There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live — did live, from habit that became instinct — in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized. —George Orwell, 1984 More so than ever before, our lives are being tracked — with Radio Frequency Identification (RFID) chips in our driver’s licences, GPS locator systems in our BlackBerries, website cookies on the Internet, and those loyalty cards in the grocery stores. What’s more, Canadians are voluntarily sharing much of this personal information online. But how much is too much? And how do we deal with the privacy, civil liberties, and human rights concerns that this type of information tracking and sharing is bound to raise? While it would be easy to succumb to the paranoia created by the fear of societal surveillance, there are organizations and resources available for citizenship education. These allow for some semblance of control (and awareness) over the personal information we share daily.

Privacy and Copyright Issues Office of the Privacy Commissioner of Canada (OPC): www.privcom.gc.ca The mandate of the OPC is compliance with both the Privacy Act, which covers the personal information-handling practices of federal government departments and agencies, and the Personal Information Protection

and Electronic Documents Act (PIPEDA) — Canada’s private sector privacy law. Its website holds a wealth of information with sections including: Legal Corner, providing guidance on the interpretation and application of the two Acts it oversees as well as offering links and references to a number of relevant legal resources; Key Issues, exploring topics like the National Identity Card, Social Networking, and Video Surveillance; and Fact Sheets, with titles like “Your Daily Data Trail”, “RFID Technology”, and “Protecting your Privacy on the Internet”. In the summer of 2008 the OPC announced on its blog that it would be commissioning research into how developments in public surveillance techniques and technology are affecting Canadians individually and as a society. You can watch for the results by reading the blog found at http:// blog.privcom.gc.ca. Michael Geist: www.michaelgeist.ca/ Dr. Michael Geist is a law professor at the University of Ottawa where he holds the Canada Research Chair of Internet and E-commerce Law. He has written numerous academic articles and government reports on the Internet and law, and his column on technology law issues regularly appears in the Toronto Star, the Ottawa Citizen, and on the BBC. He also serves on the Privacy

Commissioner of Canada’s Expert Advisory Board. Dr. Geist may be best known for stirring up public response to the proposed changes to Canada’s copyright legislation. He created the Fair Copyright for Canada group on Facebook on December 1, 2008. One month later, the group had over 35,000 members and had succeeded in gaining the government’s attention as it delayed the introduction of the proposed new Copyright Act. The Facebook group has now spawned a website (www.faircopyrightforcanada.ca), and local chapters of the movement have sprung up throughout the country.

Citizenship Engagement Canadian Interest Policy and Public Interest Clinic (CIPPIC): www.cippic.ca/en/ CIPPIC seeks to ensure balance in policy and law-making processes on issues that arise as a result of new technologies. Founded in part by Michael Geist, law students work with clinic counsel on projects and cases involving the intersection of law, technology, and the public interest. The website includes a number of pages providing FAQs and resources on various issues including Behavioural Targeting, Online Anonymity, National ID Cards, and Spyware. These FAQs are clearly written and understandable to members of the general public.

The Citizen Lab: www.citizenlab.org The Citizen Lab is an interdisciplinary laboratory based at the Munk Centre for International Studies at the University of Toronto, focusing on advanced research and development at the intersection of digital media and world civic politics. The laboratory sponsors projects that “explore the cutting-edge of hypermedia technolo-

While it would be easy to succumb to the paranoia created by the fear of societal surveillance, there are organizations and resources available for citizenship education. These allow for some semblance of control (and awareness) over the personal information we share daily.

May/June 2009

gies and grassroots social movements, civic activism, and democratic change within an emerging planetary polity.” The Citizen Lab engages in research and development in a number of different areas like the OpenNet Initiative, which investigates and challenges state-directed Internet filtering and surveillance practices, and the CiviSec Project, which empowers organizations and individuals to take informed action when implementing privacy and security solutions online.

Public Interest Advocacy Centre: www.piac.ca/

PIAC is a non-profit organization that provides legal and research services on behalf of consumers and, in particular, vulnerable consumer interests concerning the provision of important public services such as telecom, copyright, and website privacy issues. Website sections on Privacy include information about Identity Theft and Spyware, while the section on Telecom provides information about the Do-Not-Call List and Telemarketing. PIAC also publishes special reports available for free downloads on topics like “Radio Frequency Identification (RFID) and Privacy: Shopping into Surveillance.”

Civil liberties associations at the provincial level also offer online resources and information of interest.

includes a discussion on the definition of privacy, the laws governing it, invasion of privacy, the effect of certain types of technology on your privacy rights, and the data that is being collected about you through technology. The truth is out there … as these examples point out, it can come in the form of websites about your civil liberties, FAQs about copyright, fact sheets about online anonymity, and/or online resources about protecting your privacy on the Internet. Kirsten Wurmann is a Librarian with the Legal Resource Centre in Edmonton, Alberta.

Civil Liberties Canadian Civil Liberties Association (CCLA): www.ccla.org/ CCLA is a non-profit, non-government law-reform organization dealing with issues of fundamental civil liberties and human rights that affect those who live all across Canada. In their Legislative Advocacy section, the Association has posted position statements about enhanced Ontario driver’s licences and the cyber-speech of students. Civil liberties associations at the provincial level also offer online resources and information of interest. Examples include the B. C. Civil Liberties Association (www. bccla.org/index.html), the Manitoba Association of Rights and Liberties (www.marl. mb.ca), and the Alberta Civil Liberties Research Centre (www.aclrc.com). Take a look at the ACLRC’s “Techno-tonomy: Privacy, Autonomy and Technology in a Networked World” (www.aclrc.com/techno_ tonomy/index.html) — a guidebook that

May/June 2009

Criminal Law Deborah R. Hatch

“Technicalities”: Do They Exist? We often hear of accused individuals being acquitted on the basis of a “technicality”. What does this mean, and why is this permitted in our society? We understand Canada to be a liberal democracy, a so-called “advanced” society with a constitution which governs our legislators, police, and citizens. Why, then, do we hear of criminal charges being thrown out of court for purely “technical” reasons? To answer this question, we must explore what is encompassed by these “technicalities”. It is not the case, for example, that charges are thrown out of court and accused persons acquitted merely on the basis that a comma is omitted from the charging document, or an accused person’s middle name is misspelled. On the contrary, what are often referred to as technicalities are in fact matters of great significance to a system that is premised on principles such as proof beyond a reasonable doubt, fairness to all individuals detained by state authorities, dignity and humanity in the criminal trial process, and reliance upon accurate and trustworthy evidence. We hear from time to time that individuals were acquitted because they were identified in court only, and no other identification process was used. Is this a mere technical matter? When we examine the reasons for this result, however, it is easier to understand why the deficiency in this type of case is substantial as opposed to

minor or merely technical. Trials often occur months, or even years after the event. When eye-witnesses testify in court, they are routinely asked whether they see the individual who committed the offence in the courtroom. The person seated beside the defence lawyer, who may be clad in prison coveralls, would be the logical suspect. An eye witness may have a vague recollection of what the individual who committed the act looked like, bolstered by the suggestion that the police would have arrested the right person. Witnesses often presume that the person who was charged is in fact the perpetrator. Courtroom identification, however, is a notoriously suggestive and unreliable procedure. Judicial experience and wrongful convictions have shown that this procedure is unreliable when it stands alone, and that other procedures must take place in order to provide an identification which may be relied upon as accurate. We now know that witnesses should be shown, sequentially, a series of photographs of individuals who are similar in appearance to the description provided, without any suggestions as to which individuals, if any, have been arrested or charged. This type of identification procedure should occur soon after the event so that nothing taints the witness’s memory. For example, if a witness sees a photograph of the suspect in the newspaper, that photograph may be imprinted in the witness’s

Courtroom identification, however, is a notoriously suggestive and unreliable procedure. Judicial experience and wrongful convictions have shown that this procedure is unreliable when it stands alone …

memory and it may be that person whom they are likely to identify later, as opposed to relying solely upon their memory. It is only in the last several decades that cases of wrongful conviction have been examined by commissions of inquiry. The cases of Morin, Milgaard, and Marshall are but a few examples of individuals who were wrongly convicted. Many of these wrongful convictions, where individuals have spent years or even decades imprisoned, were based on improper identification procedures. Many courts in this country and elsewhere have confirmed that eye witnesses are often very convincing because they, themselves, are so convinced. Most eye-witnesses are honest individuals. However, they can be mistaken. As a result, it is up to the courts to ensure that identification procedures are fair. Fairness protects not only the accused, but also, significantly, society at large, which has an interest in ensuring that the correct individual is convicted in order to foster public safety, and that the innocent go free. An acquittal based on faulty or deficient identification procedures is not an acquittal based on a technicality. It is one which ensures that our system functions properly and fosters respect. What about cases where an individual is acquitted based on insufficient grounds to arrest? We have all heard of circumstances where a person is acting suspiciously and is arrested by the police and ultimately found with stolen goods. Notwithstanding, the person may be acquitted because the court finds that the police lacked “reasonable and probable grounds” to arrest. How can that be right when we know that the individual was committing an offence? Obviously the police were correct in their assumptions so why should this individual be sent on his way? The Canadian Charter of Rights and Freedoms protects every individual from unreasonable search and seizure. What this means is that we are all free to go about our business without worry that we can be stopped by the police and searched. Yet surely, we think, the police would only detain and search an individual who had committed a crime. We must look, however, to the predicament of law-abiding individuals in many other countries where constitutions such as ours do not exist or

May/June 2009

are not followed. In those countries, individuals are often apprehended and detained, merely on the basis of suspicion, or because they are thought to be operating contrary to state interests. Our political culture may not tolerate that type of state intervention now, but that is something which could change in the future, based on concerns for state and public security. Aside from our political culture, the constitutional provision which requires the police to have reasonable and probable grounds before arresting individuals is a significant protection against that type of behaviour by the authorities. Suspicion is not enough. Our courts must foster the law and ensure that arrests do not occur unless there is a sufficient and lawful basis. This may mean that some guilty individuals will go free, but that is a price which society must pay on occasion for the freedoms which we all enjoy. An acquittal which occurs for that reason is not one which stems from a “technicality”. It is one which stems from a deeply rooted desire to protect the freedoms that we all enjoy. Yet another scenario with which many are familiar is that in which an accused is found not guilty because he was not advised of his right to counsel. He may even have confessed to some involvement in the act in question. Why can evidence demonstrating his involvement not be used in the case against him merely because he was not told that he could contact a lawyer? The right to counsel is a right ingrained in our system. If we were arrested and taken to the police station, most of us would like to have an understanding as to how long we could be kept in custody, what we could do to secure our release, whether we could speak to family members, and what, if anything, we were required to say or do. If we are not advised of our right to counsel and given an opportunity to exercise that right, then our system would look like those in other countries where individuals can be picked up and detained, their families hearing nothing from them, not knowing where or why they are being kept, forced to sign confessions or to incriminate themselves. That type of system is fostered when accused persons have no rights, and lawyers are seen as having no role outside of the courtroom. In Canada, if a legal or constitutional right has been breached, our courts will determine

May/June 2009

The courts are rightly concerned with whether accused persons are deprived of the presumption of innocence, the right to silence, and other constitutionally protected rights.

whether evidence should be excluded. The analysis will consider whether the administration of justice would be brought into disrepute if the evidence were admitted at trial, whether trial fairness would be impacted, and the relative seriousness of the Charter violation. Judges understand that it is fundamentally unfair to support a criminal prosecution with evidence that is created by the accused himself because the state failed to respect the accused’s constitutionally protected rights. The courts are rightly concerned with whether accused persons are deprived of the presumption of innocence, the right to silence, and other constitutionally protected rights.

When we look at the broad principles which underlie our rights, it becomes clear that what may have appeared to be technical matters are, in fact, matters of great substance. These form the foundation of a system which respects our freedoms and protections. We owe those who have been wrongly convicted nothing less than the assurance that we will try to prevent such wrongful convictions in the future. We must also ensure that we strive to understand and defend the protections offered by our system. Deborah R. Hatch is a lawyer with the firm of Gunn, Prithipaul and Hatch in Edmonton, Alberta.

Assurance | Accounting | Taxation | Advisory Services

EXPERIENCE. THE DIFFERENCE. • • • • • • •

Litigation Support Matrimonial Settlements Economic Loss Quantification Investigative & Forensic Accounting Income Tax Goods and Services Tax Personal & Corporate Recovery and Insolvency Yusuf Karbani, FCA•IFA, CBV Michel F. Audy, CA, CFP, TEP Lance Clark, CA•IFA

9897 - 34 Avenue Edmonton, AB 780-461-8000

litigation@bdo.ca www.bdo.ca/fas

• • • • • • •

Shareholder Disputes Insurance Claims Business Valuations Mediation Estates and Trusts Pension Valuations Child/Spousal Support Calculations

Richard I. Leaker, CA, TEP Tim Ludwig, CA•CIRP J. Bradley Berry, CA BDO Dunwoody LLP Chartered Accountants and Advisors

Law and Literature Rob Normey

Occupation Without End: The Palestinian – Israeli Conflict I Susan Sontag’s last collection of essays and speeches, At the Same Time, includes her eloquent address from 2003, the Rothko Chapel Oscar Romero Award keynote address. This honors Ishai Menuchin and other brave Israeli soldiers who have refused to serve in the occupied territories. The hundreds of Israeli soldiers who have over the past decades refused to serve in the West Bank and the Gaza Strip, the territory occupied by Israel after the 1967 Arab – Israeli War, highlights the ongoing injustice of that occupation. My comments in this article reflect not so much on the recent Israeli attack on Gaza in response to rocket attacks as on the ongoing occupation. Sontag states: The decision of successive Israeli governments to retain control over the West Bank and Gaza, thereby denying their Palestinian neighbors a state of their own, is a catastrophe – moral, human, and political – for both peoples. … Our greatest admiration must go to the brave Israeli soldiers, represented here by Ishai Menuchin, who refuse to serve beyond the 1967 borders. These soldiers know that all settlements are bound to be evacuated in the end. These soldiers, who are Jews, take seriously the principle put forward at the Nuremberg trials in 1945-46; namely, that a soldier is not obliged to obey unjust orders, orders that contravene the laws of war … The Israeli soldiers who are resisting service in the Occupied Territories are not refusing a particular order. They are refusing to enter the space

where illegitimate orders are bound to be given – that is, where it is more than probable that they will be ordered to perform actions that continue the oppression and humiliation of Palestinian civilians. Sontag asserts that the “refuseniks” believe, as she does, that there should be an unconditional withdrawal from the Occupied Territories. I don’t agree. There should instead be an urgent call for negotiations leading to an agreement involving, amongst other things, withdrawal from the Territories in return for conditions designed to ensure peace between the two sides. In the meantime, Israel must truly begin the process of closing outposts and dismantling settlements in the West Bank. That being said, the “refuseniks” contribute something valuable to the debate about Israel’s relationship with the occupied territories. The refusal to serve provides a model of resistance and civil disobedience, for which, as Sontag emphasizes, there will always be penalties. It has the potential, in the unique circumstances of Israel, to bring about political change. As the Washington Post reported on August 27, 2006, in Israel, where military service is mandatory and soldiering is an experience that almost all Israelis have in common, strenuous dissent from within the ranks is a long-standing

staple of political change. The Post relates that it was protests by soldiers which helped bring down the government of Prime Minister Golda Meir after the 1973 Middle East War, toppled then-Defence Minister Ariel Sharon after the 1982 Lebanon invasion and helped bring about an eventual Israeli pullout, and has upped the political pressure over Israel’s occupation of the Territories. The Washington Post article quotes Ishai Menuchin, the same Israeli officer referred to by Sontag. He founded Yesh Gvul (“There is a Limit” or “The Border Exists”), an organization for soldiers and reservists refusing to serve. Menuchin was jailed in 1973 for refusing to fight, but stayed in the reserves and was promoted to major. Menuchin stated that the Israeli army doesn’t want to push too hard, meaning punish conscientious objectors too severely. He points out that the army should represent the nation. It is important that all sides of the political map are serving. Menuchin explains further that only a small percentage of soldiers were imprisoned for refusing to serve during the Palestinian uprisings in the West Bank and Gaza. An important Amnesty International Report from Sept 1999, entitled “Israel: The Price of Principles: Imprisonment of Conscientious Objectors” canvasses the issue of conscientious objection, using the term to include absolute objection to all forms of military service and selective objection. Over the years Amnesty has adopted many conscientious objectors imprisoned in Israel as prisoners of conscience and has campaigned for their unconditional release. Amnesty takes the position that such persons should have the right to register their objection and to perform a genuinely civilian alternative to military service of a non-punitive character.

Israeli demographer Sergio Della Pergola estimates that by 2020, Jews will make up just 47 % of the people who live between the Jordan River and the Mediterranean Sea. This demographic trend has raised fears that Israel will become a state like South Africa before the coming to power of the African National Congress, in which the minority ruled the majority.

May/June 2009

Article 18 of the International Covenant on Civil and Political Rights (ICCPR) guarantees the right to freedom of thought, conscience, and religion. The Human Rights Committee, an expert body established to oversee implementation of the Covenant, has expressed its opinion that conscientious objection to military service is a legitimate exercise of the right to freedom of thought, conscience and religion. Israel ratified the ICCPR in 1993 and is thereby bound to adopt legislation and other measures to give effect to freedom of thought, conscience, and religion. The United Nations Commission on Human Rights has set down the elements of the right to refuse for reasons of conscience in several resolutions. One resolution emphasized that states should not imprison conscientious objectors for failure to perform military service and called on states to establish independent and impartial decision-making bodies to determine whether a person has a genuine conscientious objection. The Commission urged states not to discriminate among conscientious objectors on the basis of their particular beliefs. In January 2002, 51 reserve soldiers and officers signed a Combat Troops’ letter in which they declare their refusal to fight beyond the 1967 borders in order to dominate, expel, starve and humiliate an entire people. Six hundred and thirty-three combatants have since signed the letter. According to Wikpedia, the Israeli High Court of Justice ruled in 2002 that refusal to serve was legally permissible on the grounds of unqualified pacifism, but “selective refusal”, which accepted some duties, but not others, was not legally permissible. The Court said that allowing “selective refusal” would “weaken the ties that bind us as a nation.” The Court also said that the refusal to serve in the Territories was selective refusal and not conscientious objection. It was reported by the Israeli newspaper Haaretz that on January 4, 2004, a military tribunal imposed one-year prison terms on five young activists who refused to enlist in the Israeli Defence Force. The tribunal accepted that they had acted in accordance with their conscience, but ruled that they did not refuse to serve as individuals,

May/June 2009

but rather as a group, with the explicit goal of bringing about a change in Israeli policy in the Territories. As such, the tribunal ruled, their action strayed from the norms of classic conscientious objection into the realm of civil disobedience.

II So where does Israel go from here? A fascinating article by Jeffrey Goldberg in Atlantic Magazine (May, 2008) entitled “Unforgiven” focuses on a rift between the beleaguered Prime Minister Ehud Olmert and the novelist and peace activist David Grossman. Olmert has changed his thinking and come to believe that a withdrawal from the Occupied Territories is in the best interests of Israel. Playing a major role in his thinking is a demographic time bomb for Israeli Jews. Within the next several years the number of Arabs under Israeli control will be greater than the number of Jews. Israeli demographer Sergio Della Pergola estimates that by 2020, Jews will make up just 47 % of the people who live between the Jordan River and the Mediterranean Sea. This demographic trend has raised fears that Israel will become a state like South Africa before the coming to power of the African National Congress, in which the minority ruled the majority. That would attract international condemnation. The alternative would be to give Palestinians in the West Bank and Gaza the vote, but doing so would mean that Israel would cease to have a Jewish majority. As Goldberg notes, that would mean that Israel, as a country whose fundamental purpose has been to serve as a refuge for persecuted Jews and to allow those Jews to have the novel experience of being part of a majority, would disappear. Olmert recognizes this danger and yet has been unable to find a way to negotiate a comprehensive settlement with the Palestinians. David Grossman perceived the need to end the occupation of Palestinian territory and has long advocated strong measures to achieve this. His nonfiction work The Yellow Wind is an exposé of the occupation and its demoralizing effects on Palestinians and on the Israelis who enforce it. At a 2006 press conference, Grossman called for an end of Israel’s offensive against the terrorist group Hezbollah. Three days after he spoke out,

his son Uri was killed in action in Lebanon when a Hezbollah missile struck his tank. Eerily, Grossman was working on a novel about an Israeli soldier, a tank commander, who goes to battle. His mother has a premonition that he’s going to be killed. She starts a walk across Israel so she won’t be at home to hear news of her son’s death. As she walks, she tells the story of his life. Grossman was able to complete the novel despite his grief. Since his son’s death, Grossman has not cast aside his opposition to occupation and settlement, nor his belief in reconciliation. Yet as Goldberg observes, this does not necessarily suggest that the novelist would make a sophisticated negotiator. At a memorial service for Yitzhak Rabin, the prime minister assassinated in 1995 by an extremist supporter of the settlements, Grossman addressed 100,000 Israelis. Olmert was on the stage as well. Grossman refused to shake his hand but directed his address at him. He spoke of how Israel has squandered not only the lives of its children but also the miracle it experienced – the great and rare opportunity bestowed upon it by history, the opportunity to create an enlightened, decent, democratic state that would conduct itself according to Jewish and universal values. He went on to criticize the country’s leaders and pleaded with Olmert to speak directly to the Palestinian people. He urged him to go to the Palestinians over the heads of Hamas, especially to reach the moderates. Can this be done? It seems unlikely that such an approach would work. However it is incumbent on both the Israeli and Palestinian leadership to resume peace talks aimed at creating a Palestinian state. This could be the last time a two- state solution is viable. Palestinian rejectionists and unyielding Jewish settlement leaders both strenuously oppose a two-state solution. We can only hope that U.S. President Obama and his team can act as a catalyst to bring the two sides to the negotiating table with a willingness to make the painful sacrifices necessary for a just and lasting peace. Robert Normey is a lawyer with the Constitutional and Aboriginal Law Branch of Alberta Justice in Edmonton, Alberta.

Y OUR G UIDE

THROUGH CHARITY LAW In Alberta, call the Charity Central Helpline toll-free @ 1.888.587.4438

Watch for our website launch in 2009 and other exciting learning resources!

Charity Central