34-3 Jan/Feb 2010 Olympics and the Law by LawNow

January/February 2010

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Olympic Trademarks

Polygamy

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Volume 34, Issue 3 Feature Report on The Olympics and the Law 7 Justice Canada’s Legal Team sets the Bar High for Vancouver 2010 Peter McKinnon The Department of Justice Canada has been hard at work on the many legal issues involved in holding the Olympics in Canada.

10 The Complicated Jurisdictional World of Sport Hilary A. Findlay Who governs sport? Many different groups and governments, with sometimes competing jurisdictions!

13 From Caracas to Vancouver: Canadian Anti-doping Initiatives Greg Jackson Canada has been at the forefront in developing anti-doping policies for sport.

17 Re-defining Competition in Sport: the "Freedom of Excess" Brian Seaman

There are many legal issues that arise for the host country when the Olympic Games are held. LawNow examines some of them.

Advances in medical science and technology will mean that sports regulatory bodies will have to address difficult issues.

20 What's in a Word? Olympics Peter Bowal and Thomas Brierton

Departments

Don’t mess with the International Olympic Committee. It is fierce in protecting its brand!

4 Happenings Around the Legal Resource Centre 6 Bench Press

Columns 37 Not-for-Profit Law 39 Human Rights Law 41 Criminal Law 43 Employment Law

Special Report on Marriage 29 I Do, I Do, and I Do Again: Questions Arising From Bountiful Robert G. Harvie Polygamy: Is it still illegal? Should it be? Rob Harvie presents one point of view.

32 Polygamy, Freedom of Religion, and Equality: What Happens When Rights Collide? Linda McKay-Panos and Brian Seaman Will the Charter of Rights be used to defend polygamy or end it? Here is another point of view.

35 Prenups: A Plan for Failure or Simply Smart Planning? 45 Law and Literature

Doris Bonora

47 Online Law

Prenuptial Agreements shouldn’t be distained: they can be valuable to both marriage partners.

Cover photo credits: Background and centre small image: Melanie Eastley Top and bottom small images: © Serguei Bachlakov | Dreamstime.com

January/February 2010

School's In 25 The Olympics and the Law Lorine Sweeney

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.

Happenings Around the Legal Resource Centre Diane Rhyason

Publisher Diane Rhyason Editor/Legal Writer Teresa Mitchell

Sandra Garvie Reading Room

Production Assistant Kristy Rhyason 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

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Members of the Sandra Garvie Memorial Fund Board of Directors with the dedication plaque From L to R: Lesley Conley, San San Sy, Dr. Anna Altmann, Dr. Diane Rhyason, Jane Sundby, Lois Gander Q.C.

Our Open House in September marked the dedication of the Legal Resource Centre library as the Garvie Reading Room. The plaque reads: “This reading room honours the life and contributions of Sandra Garvie, librarian at the Legal Resource Centre from 1976–1979. Sandra was a pioneer in the early development of public legal education theory and practice. She was dedicated to the idea of increasing public access to legal information and to developing the skills of non-lawyers in both using and influencing the legal system.” The Garvie Reading Room (GRR) is home to a non-circulating collection designed to serve public legal education providers and creators, researchers and the staff of the Legal Resource Centre. The materials concern the theory and practice of public legal education (PLE), and support the broader professional activities of the Legal Resource Centre. A unique aspect of the collection is the historical PLE materials that document the development and history of public legal education in Canada from its emergence in the 1970s.

The financial assistance of the Muttart Foundation is gratefully acknowledged.

January/February 2010

Tanya Driechel in the Top 40 under 40

Premier’s Award of Excellence

The LRC’s community programmer and librarian, Tanya Dreichel has been selected as one of Edmonton’s “Top 40 under 40” for 2009 by Avenue Magazine. Avenue celebrated 40 of Edmonton’s best and brightest young leaders who are giving back to the community, excelling in their fields and raising the city’s profile. Tanya was chosen for her work in “making complicated and intimidating legal information available to those who need it most.” She was also honoured for her volunteer work at the Edmonton Institution for Women, where she has helped set up a lending library and a book club. Congratulations Tanya!

The Legal Resource Centre was part of the team working on the Residential Tenancy Dispute Resolution Service Project, which recently won a Gold level Premier’s Award of Excellence. The 15th annual Premier’s Award of Excellence ceremony honouring Alberta public service achievements was held on October 9, 2009. Executive Director Diane Rhyason attended the ceremony to represent the Centre. The LRC, along with several other organizations, worked with Service Alberta to create a program designed to help landlords and tenants settle serious differences without resorting to the costly, complicated and time-consuming process of going to court. The Project provides a friendly service that reduces conflict through quicker resolution. It has also helped reduce homelessness and decrease the use of the courts for dispute resolution, which enables the court system to better allocate resources.

Charity Central Launch Hard to imagine now, but the afternoon of the website launch for Charity Central was hot! However, the mid-September plus 30 temperatures could not deter the occasion. Over 25 people gathered to celebrate the official launch of Charity Central’s banner project – a large, comprehensive and user-friendly website that covers the ins and outs of receipting, fundraising guidelines, and books and records for registered charities. The website itself took over a year to complete, and is chock full of learning

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resources for Canada’s registered charities. It compiles complex information into plain language and presents it in a variety of formats, making it accessible to people who work for and with registered charities. “We know that many people from charities across the country are accessing our online resources, and there is a high amount of interest in our work,” stated Lesley Conley, Co-ordinator of Information Services. “From the feedback we are getting from registered charities, we believe we are meeting a real need.” The launch was a fun and friendly affair, attended by local politicians, community leaders and many LRC funders and friends. Following the launch, approximately 40–50 people attended an Open House at the Legal Resource Centre. Both wine and conversation flowed as guests toured the LRC’s facilities, including the Garvie Reading Room, a non-circulating library designed to serve public legal education

providers and creators, researchers and the staff of the Legal Resource Centre. Catered by Kids in the Hall, the Open House was the perfect way to cap off the warm, late summer afternoon. Students mingled with MPs, and LRC staff chatted with community leaders. Overall, it was a resounding success. Charity Central and LRC would like to thank everyone who attended. We hope you enjoyed it as much as we did!

www.courts.gov.bc.ca/jdb-txt/ SC/09/13/2009BCSC1385.htm

for standing. The Court further stated that the ERCB’s own definition of a “protected action zone” or PAZ, “indicates that those who live in a PAZ could have their rights directly or adversely affected as a result of a hazardous release. It is difficult to see how any other conclusion could be available. Should the wells leak and the wind be blowing from the southeast, poisonous gas could be blown over and into the appellants’ homes and farms.” The Court ordered the ERCB to hold another hearing, at which the residents will have standing. In addition, the Court said that the fact that the wells have already been drilled does not preclude a conclusion that the company should not be permitted to operate them or should be ordered to shut them down.

Consider the Severity of the Breach

http://www.albertacourts.ab.ca/jdb/2003-/ca/ civil/2009/2009abca0349.pdf

Bench Press Teresa Mitchell CSIS Gets New Power The Federal Court of Canada has expanded the powers of the Canadian Security Intelligence Service, closing a loophole that has caused problems for the Service. Justice Mosley recently granted an application by CSIS for a warrant which gives it the power to intercept the communications of Canadians outside of Canada. He wrote “individuals who pose a threat to the security of Canada may move easily and rapidly from one country to another and maintain lines of communications with others of like mind. Information which might be crucial to prevent or disrupt the threats may be unavailable to the security agencies of this country if they lack the means to follow those lines of communication.” Previously, CSIS could not intercept communications once the Canadian suspect left the country. Another agency, Communications Security Establishment (CSE), is mandated to collect foreign intelligence but cannot direct its activities against Canadians or persons within Canada. This left a serious gap in Canada’s ability to protect against security threats. Justice Mosley wrote “Where the statutory requirements of a warrant are met, including prior judicial review, reasonable grounds, and particularization of the targets, the collection of information by CSIS with CSE assistance, as proposed, falls within the legislative scheme approved by Parliament and does not offend the Charter.” http://decisions.fct-cf.gc.ca/ fr/2009/2009cf1058/2009cf1058.html

Waiving Children’s Rights A British Columbia court has ruled that parents cannot relinquish the rights of their children by signing waivers of liability for sports programmes. A 12-year old boy’s mom signed such a waiver when she enrolled him in a martial arts course. He was injured when he was thrown to the mat in an exercise. The martial arts studio relied on its comprehensive waiver of liability and

asked the court to dismiss the child’s action for personal injuries. Justice Willcock of the B.C. Supreme Court ruled that the provincial Infants Act “…does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action for damages in tort.”

The Supreme Court of Canada recently decided four cases dealing with the admissibility of evidence obtained by police in circumstances that caused defence counsel to ask for its exclusion, based on breaches of the Charter. Each case was decided on its own facts, but the Court did lay down some general guidelines. It said that evidence obtained by the police in violation of the Charter may still be admitted at trial and used to convict an accused unless the violation is blatant. It also said that the key factor to be considered by trial judges is not the seriousness of the alleged offence, but the seriousness of the Charter violation. http://ssc.lexum.umontreal.ca/ en/2009/2009scc33/2009/scc33 http://scc.lexum.umontreal.ca/ en/2009/2009scc34/2009/scc34 http://scc.lexum.umontreal.ca/ en/2009/2009scc35/2009/scc35 http://scc.lexum.umontreal.ca/ en/2009/2009scc36/2009/scc36

Duty to Consult The Alberta Court of Appeal recently ruled that residents in the small Alberta community of Rocky Rapids should have been given the chance to be consulted about the drilling of sour gas wells near them. The Energy Resources Conservation Board (ERCB) had dismissed their objections and denied them standing at a hearing into the drilling company’s application. The Court of Appeal ruled that the ERCB erred in its conclusions about both the legal and factual tests

Facebook Faces Up Canadian Privacy Commissioner Jennifer Stoddart ruled on a complaint by the Canadian Internet Policy and Public Interest Clinic about alleged violations of privacy on Facebook. She decided that four of the subjects of complaint needed to be remedied: • disclosure of user’s personal information to third-party applicants; • account deactivation and deletion practices; • the deletion of the accounts of deceased users; and • the sharing of non-user’s personal information. The company agreed to make technological changes to restrict access by third-parties unless users give express consent, to take steps to make it clear to users what the difference is between deleting an account, which removes all personal information from the Facebook server, and deactivating an account, which keeps the existing information in place, and to make changes to the way deceased users’ accounts are handled. The Commissioner gave the company one year to make the technological changes necessary to remedy the problems. Facebook also agreed that the changes it makes to meet the requirements of Canadian privacy law will be put into place on the site for the benefit of the two hundred million Facebook users world-wide. Canada is the first country in the world to scrutinize Facebook’s privacy provisions. http://www.priv.gc.ca/cfdc/2009/2009_008_0716_e.cfm

January/February 2010

Feature Report on The Olympics and the Law

Peter McKinnon

Justice Canada’s Legal Team Sets the Bar High for

Vancouver 2010 The world’s finest skiers, skaters and other winter athletes aren’t the only ones putting in long hours to prepare for the 2010 Olympic and Paralympic Winter Games. While the athletes train for personal bests, a group of Department of Justice Canada legal experts are already hard at work on the complex legal issues associated with hosting such a pre-eminent international event. Staging a successful Games is a challenge of, well, Olympian proportions. The XXI Olympic Winter Games will be no exception, as thousands of athletes, coaches and trainers – along with hundreds of thousands of spectators and media personnel – travel from more than 80 countries to Vancouver and Whistler for two weeks in February 2010.

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The Games give rise to issues that cut across all eight Justice portfolios – Aboriginal Affairs, Business and Regulatory Law, Central Agencies, Citizenship, Immigration and Public Safety, Criminal Law, Litigation, Public Law, and Tax Law.

Accommodating this rush of humanity in a safe, secure and orderly fashion, and mounting a memorable, entertaining spectacle, requires not only infrastructure such as stadiums, roads and housing, but also a host of legal services. “There are so many areas of law in play – public security, international relations, transportation, human rights and more,” says Karen Moore, Senior Counsel with Canadian Heritage, the lead federal department for Vancouver 2010. “And it’s vital that the Government of Canada speaks with a single voice on all legal issues.”

Justice Canada 2010 Network The Games give rise to issues that cut across all eight Justice portfolios – Aboriginal Affairs, Business and Regulatory Law, Central Agencies, Citizenship, Immigration and Public Safety, Criminal Law, Litigation, Public Law, and Tax Law. To co-ordinate the legal assistance required to stage the Games, the Government of Canada formed the Justice Canada 2010 Network – a team of some 60 counsel from Justice Headquarters, the Vancouver Regional Office and the legal service units of more than 30 federal departments and agencies. Moore, the Network’s co-ordinator, marvels at the array of legal issues the counsel now face. “Allocating radio frequencies is a case in point,” she says. “There’s a long list of groups wanting exclusive access to dedicated frequencies – police and security personnel, event organizers and broadcasters – yet the radio spectrum is finite. As with dozens of similar issues – from food safety to visas – we’ll work with all the parties to sort that one out.”

Collaboration is the guiding principle of the 2010 Games. The Games are the responsibility of the Vancouver Olympic Organizing Committee (VANOC) – an independent, non-profit society. To stage the Games successfully, VANOC requires the support of several other parties: the governments of Canada, British Columbia, the City of Vancouver, the Resort Municipality of Whistler and the Canadian Olympic and Paralympic committees. This support is spelled out in a multi-party agreement (MPA), concluded six months before Vancouver was awarded the Games.

A new Olympic standard “The MPA is a binding document that commits each party to meet specific milestones and deliver particular services,” says Moore. “It also set a new standard for future Olympics. The International Olympic Committee now expects applicants for the Games to have at least the framework of an MPA in place to submit bids.” Vancouver 2010 is also exceptional because it allocates a larger role to Aboriginal peoples than any previous Olympics. Four host First Nations – Lil’wat, Musqueam, Squamish and Tsleil-Waututh – share a seat on VANOC’s board of directors and negotiated special Olympic-legacy agreements that enable them to benefit directly from the Games. Along with the preparation of numerous agreements and protocols, the legal work has also included drafting legislation to protect the Olympic and Paralympic brand in Canada and to amend the Income Tax Act. Security is a crucial concern, particularly since all of the venues lie close to the American border. Foreign dignitaries, such as heads of state, are Internationally Protected Persons (IPP) – a status codified in a United Nations convention and the Criminal Code. Many IPP will likely attend the Games, and each must be provided the appropriate level of security. “We must create a secure environment, while remembering that in Canada, individual rights are fundamental,” says Moore. “We want visitors and athletes to remember the Games for athletic accomplishments and spectacular natural settings rather than security measures.”

Department of Justice Canada legal experts are already hard at work

Pre-emptive planning

on the complex legal issues associated with hosting such a pre-eminent

At this stage, Moore’s team devotes much of its time to contingency planning – assessing potential scenarios and preparing appropriate strategies. “Counsel will be prepared to take swift legal action if, for example, protestors try to disrupt the Games through unlawful demonstrations,” says Moore.

international event.

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As Network Co-ordinator, Moore is in regular contact with VANOC’s chief legal officer and with counsel representing the other parties. “When I look at the big picture, it’s easy to get overwhelmed,” she says. “The key is to work collaboratively with the appropriate parties.” Perhaps no one appreciates this approach more than Ken Bagshaw, VANOC’s Chief Legal Officer. Bagshaw oversees a team of 10 full-time counsel and liaises with dozens of others. “The Justice Network provides a single window to all relevant federal departments and agencies,” he says. “This type of co-ordination saves everyone a great deal of time and effort.” It’s not the first time that the Department of Justice Canada has assembled a team of counsel for an international event. A similar approach was adopted for the 2002 G8 Summit in Kananaskis and the 2007 Summit in Montebello. The experience amassed by the Justice Network will bolster the planning efforts underway for the 2010 G8 Summit in Huntsville.

Four host First Nations – Lil’wat, Musqueam, Squamish and TsleilWaututh – share a seat on VANOC’s board of directors and negotiated special Olympic-legacy agreements that enable them to benefit directly from the Games.

“Co-ordinating legal services across multiple organizations is essential to the success of the Games,” says Moore. “For me, this is an incredible opportunity to grow as a professional; for Canada, hosting the Olympics is a great opportunity to show the world what we’re all about.” This article first appeared in Justice Canada, Vol. 7 No. 2, 2009, and is reprinted with permission.

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January/February 2010

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Feature Report on The Olympics and the Law

The Complicated Jurisdictional

World of Sport Hilary A. Findlay The omission of female ski jumpers from the 2010 Olympic Winter Games is, according to the Supreme Court of British Columbia, discriminatory. However, even though the Games are on Canadian soil, Madame Justice Fenlon found in the 2009 case of Sagen v. Vancouver Organizing Committee for the 2010 Olympics and Paralympic Winter Games that the Court had no jurisdiction to remedy the situation – the Canadian Charter of Rights and Freedoms (the Charter), which the ski jumpers used to argue their case, did not extend to the International Olympic Committee (IOC). She wrote in her judgment: “I acknowledge that there is something distasteful about a Canadian governmental activity [which is] subject to the Charter being delivered in a way that puts into effect a discriminatory decision made by others [i.e., the IOC] …” Apparently, while the planning and staging of the 2010 Olympic Winter Games is a governmental activity and is subject to the Charter, the selection of participating sports is done under the authority of the IOC which is not within the jurisdiction of the Charter. Canadians may recall another case that arose during the 1998 Winter Olympic Games in Nagano, Japan. Ross Rebagliati made Olympic history in those Games by winning the first ever gold medal in snowboarding; however, once again, jurisdictional issues intervened. Rebagliati tested positive for marijuana. He denied using a banned substance and successfully appealed the doping infraction (Rebagliati v. IOC, CAS O.G. 1998) because marijuana was not a banned substance

under the rules of the newly established snowboarding federation. (It was banned under the rules of a number of other sport federations and appeared on the IOC’s own list of banned substances. However, the IOC had agreed for these Games to abide by the banned list of each international sport federation). In other words, neither the IOC nor the International Snowboarding Federation had any legal basis, or jurisdiction, to pursue the matter against the Canadian snowboarder – marijuana was not a banned substance. Interestingly, the international body representing snowboarding at the time had not adopted its own doping policy and banned substance list, instead using those of Alpine Ski, a discipline within the Fédération Internationale de Ski (FIS). Alpine Ski did not ban marijuana although a number of other FIS disciplines such as Ski Jumping did ban marijuana by way of their own policies. These cases, and there are many others, highlight the very complex labyrinth of jurisdictional boundaries and limitations that attach to sport. Jurisdiction refers to the scope of power and authority individuals have to interpret law, in this case, as it relates to sport organizations and athletes. Generally speaking, jurisdictional authority specifies who can do what, where and when. It identifies who has authority, the range of actions the grant of authority allows, when it can be applied, and the territorial boundaries of the authority. Such authorization is typically found in the governing documents of an organization (e.g., in an organization’s by-laws,

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policies, and regulations). Many people think of these documents as dreary and not worth bothering about (many organizations themselves actually don’t bother with them very much, to their detriment). They are, however, important living documents giving authority to the sport organization and those operating on its behalf – and defining the limits of such authority. This is true whether the organization is the local sport club, a national sport organization, an international sport federation, or the International Olympic Committee (IOC). Multiple authorities operate simultaneously within their own jurisdictional boundaries during sport events such as the Olympic Games. There is a hierarchical structure to sport which dictates that national levels of sport must comply with the technical rules of their international counterparts (similarly, provincial/territorial bodies must comply with the technical rules of their national governing bodies). Lower level bodies will thus often incorporate such rules into their own rule or policy structures. But what happens where the rules of a sport organization, as dictated and required by the international body, conflict with domestic or national laws? This has happened in several situations in the Canadian sport system. Canadian human rights laws have, for example, highlighted a conflict between an international body’s rules and a national sport body’s rules. In the 2002 case of Nagra v. Canadian Amateur Boxing Association, Pardeep Singh Nagra, a Sikh boxer, was initially barred from competition in Canada because he refused to shave his beard for religious reasons. The “clean-shaven rule” came from the International Amateur Boxing Association which threatened to impose sanctions against the Canadian Amateur Boxing Association (CABA) if it allowed Mr. Nagra to participate. Eventually, the international Association agreed not to impose sanctions if CABA was directed by way of a court order to allow Mr. Nagra to box. In this case, the parties obtained a court order from the Ontario Superior Court of Justice by consent, and the matter was resolved. Where a negotiated settlement is not reached, Canadian courts would likely follow the approach taken by the English courts. For example, in Cooke v. FA (1972), the English court refused to consider itself bound by the regulations of the international governing body of football, known as FIFA, when applying the law to a restraint of trade case involving a player transfer. In other words, where they are in conflict, the laws of the domestic jurisdiction will trump those of a sport body whether they are national or international in origin. (Foster, K.) This is likely the basis of the appeal in the Women’s Ski Jump case – can a Canadian company (VANOC) implement a foreign decision (that of the IOC) which, under Canadian law, is discriminatory?

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Multiple authorities operate simultaneously within their own jurisdictional boundaries during sport events such as the Olympic Games … But what happens where the rules of a sport organization, as dictated and required by the international body, conflict with domestic or national laws? This has happened in several situations in the Canadian sport system.

Doping rules and regulations provide a good illustration of the multiple levels of jurisdiction that impact athletes and sport organizations. The creation of WADA (the World Anti-Doping Agency) in 1999 has gone a long way towards harmonizing a global anti-doping initiative. Prior to WADA, the IOC essentially led the initiative; however, across International Sport Federations (ISFs) and National Olympic Committees (NOCs), and between countries, policies varied radically (as demonstrated by the Rebagliati case in 1998). Some countries, like Canada, called for random out-of-competition testing; other countries did not. Some authorities suspended athletes immediately upon a positive finding; others allowed athletes to compete until all avenues of appeal had been exhausted. Sanctions varied wildly across policies for an athlete’s first offence, from a warning in some cases, to four-year bans in others. Neither testing procedures nor results management was standardized. WADA brought a standard approach to detection and sanctioning. Now, the WADA Code, drafted in 2003, contains core articles that must be incorporated into all anti-doping policies, and non-core articles relating to the handling of anti-doping matters that allow some flexibility in individual policies. Since it was drafted in 2003, almost 100% of all ISFs and NOCs have adopted the Code (Davis, P.). While neither governments nor NSOs may be direct signatories to the Code, they indirectly adopt and are bound by the Code, or a national variation of the Code, through agreements with the signatories. In Canada, the Canadian Centre for Ethics in Sport (CCES) is responsible for drafting and managing the “Canadian Policy Against Doping in Sport” (CPADS) and its associated rules and regulations in conformance with the WADA Code. NSOs adopt the Canadian Policy as part of their own policy regime. Similarly, provincial/ territorial sport organizations are required to adopt the Canadian Policy through their relationships with their national counterparts. Individual participants in sport (athletes, coaches, officials, etc.) become bound as members of sporting organizations that have implemented the CPADS.

Coming full circle and returning to the women’s ski jumping case, while the Canadian Court determined it did not have jurisdiction over the IOC, it did find that it had jurisdiction over VANOC. So why not just order VANOC to run events for the women?

Often membership by-laws do not include individuals as members of the organization, (remember those dreary old by-laws and policies?) but individuals are nonetheless bound to the Policy through athlete or participant agreements. The practical result of the acceptance of the CPADS is that such athletes, who are bound by the CPADS, can be subject to testing both in and out of competition. They must also fulfill other obligations in connection with the testing programme such as keeping the drug testers informed of their whereabouts at all times. This means that athletes are subject to the jurisdiction of their NSO and governing NOC (in Canada, the Canadian Olympic Committee), both of which subscribe to the Canadian anti-doping policy; the ISF, which has its own doping policy based on the WADA Code; and, through the ISF, the IOC, which also adopts the WADA Code. Depending on where the athlete is – whether in training with the NSO, at pre-Olympic activities, or competing at the Olympic Games, different organizations will have primary jurisdiction over the activities of the athlete but all will have jurisdiction of some sort – and the athlete needs to be knowledgeable and vigilant about them all. Anti-doping initiatives always highlight the complexity of jurisdictional issues in sport, but such complexity is also evident in eligibility, selection, and discipline cases. Coming full circle and returning to the women’s ski jumping case, while the Canadian Court determined it did not have jurisdiction over the IOC, it did find that it had jurisdiction over VANOC. So why not just order VANOC to run events for the women? Madame Justice Fenlon identified three problems with forcing VANOC to disregard the IOC’s decision to omit women’s ski jumping from the Games and stage such events in any case within the Olympic programme. First, she noted that the IOC owns the Olympics. She wrote: “If an entity, including a government, tried to stage the ‘Olympic Games’ without the IOC’s permission, no one would actually consider the event to be the Olympics. Similarly, if VANOC attempted to hold additional events during the 2010

Games, contrary to the decision of the IOC, no one would actually consider those events to be Olympic. Those events would be considered to be something else. The simple fact is that only the IOC may grant the imprimatur of ‘Olympic’ (emphasis added].” Secondly, the staging of the Olympic Games requires the participation of ISFs and NOCs. NOCs are clearly under the authority of the IOC. ISFs are not under the authority of the IOC except for their engagement in Olympic Games. The Fédération Internationale de Ski, the ISF responsible for the discipline of ski jumping, specifically accepted the IOC’s decision. Madame Justice Fenlon summarized the position FIS took at the hearing: “The FIS … has specifically stated that it has accepted the IOC’s decision with respect to women’s ski jumping; it has reiterated in the context of this litigation that the FIS is under the authority and instructions of the IOC; it says that the IOC determines the Olympic Programme and that it will not take instructions from VANOC in this regard.” Thirdly, as put bluntly by Madame Justice Fenlon, “It is most unlikely that the national Olympic committees would act contrary to the direction of the IOC.” In other words, if women’s ski jumping were added to the competition in 2010, it is unlikely any country would send competitors. None of these factors, in the view of Madame Justice Fenlon, were within the control or ability of VANOC to remedy. VANOC had no jurisdiction over what events would be included in the programme and the Canadian courts, using the Charter, do not have jurisdiction over the IOC. Of course, most ISFs are vigilant about their relationship with the IOC, and NOCs are unlikely to oppose the position of the IOC making any other recourse to a negotiated settlement unlikely in this matter. Jurisdiction is an interesting concept – particularly in practice. It simply gives one the authority to act within a certain domain. However, while jurisdiction has legal roots, it is also about power and persuasion. Sport is very complex and much of that complexity is bound up in the power of jurisdiction. Hilary A. Findlay, PhD. LL.B is a lawyer with the Centre for Sport and Law in Toronto, and an Associate Professor at Brock University in St. Catharines, Ontario.

Sources 1. Foster, K. (2003). Is there a Global Sports Law? Entertainment Law, 2(1), pp. 1-18. 2. Davis, P. (2008). A Guide to the World Anti-Doping Code: A Fight for the Spirit of Sport. New York, NY: Cambridge University Press. 3. CCES Annual Report, 2007–2008. Ottawa, ON. Canadian Centre for Ethics in Sport. www.cces.ca.

January/February 2010

Feature Report on The Olympics and the Law

From Caracas to Vancouver: a History of Canadian Anti-Doping Initiatives Greg Jackson

Drug abuse and doping remain a serious threat to the integrity of sport and to the health and safety of athletes. We have made a lot of progress in our effort to deter and detect cheats, but it is a never-ending battle. —Jacques Rogge (2009)

According to the website for the Vancouver 2010 Olympic Winter Games, hundreds of athlete chaperones, blood collection officers, doping control officers, and laboratory staff will be enlisted to serve in what International Olympic Committee (IOC) head Jacques Rogge calls a “never-ending battle.” Close to 2,500 urine and/or blood tests will be conducted on athletes during the Olympic and subsequent Paralympic Winter Games.2 It hasn’t always been this way. Anti-doping initiatives began to receive serious attention only after the death of Dutch cyclist Knud Jensen in the 1960 Summer Olympic Games threatened to tarnish the

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image of the Olympic movement. Domestically, the creation and revision of anti-doping regulations by politicians and sport administrators has been driven by major doping scandals. What follows is a brief look at this history and the current anti-doping landscape in Canada.

Pan-American Games, Caracas, 1983 Shortly before the 1983 Pan American Games in Caracas, Venezuela, it was announced unexpectedly that drug testing – of a sort considerably more comprehensive than that to which athletes from the Americas were accustomed – would occur. In the

Without question, the most significant influence on Canadian anti-doping

• testing for drug use began at the Canada Games; and • penalties for steroid use were strengthened. Charles Dubin referred to Canada’s policy at the time as “one of the most stringent in the world.”

efforts occurred in 1988 when Ben Johnson tested positive for the steroid Stanozolol following his win in the men’s 100 meter race at the Seoul Olympic Games.

resulting free-for-all, many athletes failed to show up for the Games, others fled the athletes’ village, and 19 who did compete, including two Canadian weightlifters, tested positive for steroid use. The visibility of the scandal and the fact that publicly-funded athletes were involved prompted Sport Canada to write Canada’s first anti-doping policy, Drug Use and Doping Control, in December 1983. The relatively simple policy required National Sport Organizations (NSOs) to “develop a plan for their sport to eradicate improper drug use by Canadian athletes and support personnel” (Dubin). It stated that any Canadian athlete who tested positive for a banned substance would become ineligible for government funding for a minimum of one year, while a second offence would result in lifetime ineligibility. Administering anti-doping plans was a heavy burden for NSOs, and by 1984, Sport Canada had begun to assume the funding and advancement of anti-doping initiatives. Over the following four years: • the Sport Medicine Council of Canada (SMCC) was enlisted to develop “Standard Operating Procedures” (SOPs) for doping control and also contracted with the Institut National de la Recherche Scientifique to conduct tests on athletes’ samples; • Sport Canada and the SMCC collaborated on the production of anti-doping educational material; • arbitration procedures were put in place for athletes to appeal doping charges;

Under the new Program, national and international calibre athletes are assigned to “testing pools” based on their level of competition. Athletes within these pools are “subject to testing any time and any place.”

“Ben Johnson’s Olympics,”2 Seoul, 1988 Without question, the most significant influence on Canadian anti-doping efforts occurred in 1988 when Ben Johnson tested positive for the steroid Stanozolol following his win in the men’s 100 meter race at the Seoul Olympic Games. Johnson had established himself as the fastest man on earth in the marquis event of the world’s most important sporting festival and had done so against his legendary American archrival, Carl Lewis. Johnson’s run had “buoyed up a whole nation of sports fans.”3 Three days later, Minister of Sport Jean Charest called his disqualification a “national embarrassment.”4 Nine days after Johnson’s positive test, the federal government called for a Commission of Inquiry to be led by Justice Charles Dubin. Over the course of nine months in 1989, the Dubin Inquiry called 119 witnesses, including more than 50 athletes, and received 295 exhibits and 26 briefs addressing drug use in sport and Canadian sport more generally. Commissioner Dubin released his report in June 1990. While Dubin made several recommendations regarding doping control, most significant was his call for the creation of an independent agency to oversee anti-doping efforts at arm’s length from government and sports organizations. As a result, in 1991 the Canadian Minister of State for Youth, Fitness and Amateur Sport announced the creation of the Canadian Anti-Doping Organization (renamed the Canadian Centre for Drug-free Sport or CCDS in 1992) and issued a new policy: the “Canadian Policy on Penalties for Doping in Sport”. The role of the CCDS was to administer the Policy – they did the testing, trained the certification officers, and developed educational material. The CCDS adopted the exiting SOPs as guidelines for sample collection, Doping Control Officer qualifications, results management, and mechanisms for challenging positive results, and incorporated the best of. international practices to “produce a set of procedures that [the CCDS] felt were … state of the art.” Despite changes in organizational nomenclature (The CCDS merged with Fair Play Canada in 1995 to become the Canadian Centre for Ethics in Sport (CCES) and the SOPs became the Canadian Doping Control Regulations (CDCR) in 2000), the Policy, CCDS administration, and IOC’s list of prohibited substances formed the foundation of Canadian antidoping efforts until 2004. The Policy remained in

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place, and revisions that were made to the SOPs during this period were of an ad hoc nature, typically following challenges to the SOPs by athletes charged with doping-related offences.

One of the fundamental characteristics of both the World Code and Canadian Program is strict liability: it is the athlete’s responsibility to

Tour de France, 1998

“ensure that no substance on WADA’s Prohibited List enters his or her

The next major revision to Canadian regulations was set in motion at the 1998 Tour de France cycling race where a police raid uncovered large amounts of prohibited performance-enhancing substances. In the wake of this scandal, the IOC convened the First World Conference on Doping in Sport in Lausanne in 1999 where major sport stakeholders were invited to consider international and intersport harmonization of anti-doping efforts. The major recommendation of the Lausanne Conference was the establishment of an independent, international anti-doping agency. The resultant World Anti-Doping Agency (WADA) was established that November. Headquartered in Montreal since 2002, WADA is a private organization governed by equal numbers of representatives from the Olympic Movement and national governments. Its first order of business was the creation of a World Anti-Doping Code – one that applied to all sports and all nations. Following the adoption of the World Code in 2003 at the Second World Conference on Doping in Sport in Copenhagen, a “complete top to bottom overhaul of the [Canadian] system” was begun. This was because one requirement of the World Code was that the anti-doping programs of all adopting nations and organizations be in compliance with it or risk Olympic ineligibility. The end result of the overhaul was a new government policy, “The Canadian Policy Against Doping in Sport,” and the replacement of the existing regulations with the “Canadian AntiDoping Program”. The Policy and Program are the two anti-doping documents currently in place that affect all Canadian high-performance athletes and others in the sport system. The Policy is the “government commitment of a more general sort” to the implementation of the World Code in Canada; all NSOs and Multisport Organizations must comply with the Policy in order to receive federal government funding. The Program is also fully compliant with the World Code and can be considered a set of doping-related sport rules.

body,” and “it is not necessary that intent, fault, negligence or knowing use

Athletes and the Canadian Anti-Doping Program Under the new Program, national and international calibre athletes are assigned to “testing pools” based on their level of competition. Athletes within these pools are “subject to testing any

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on the athlete’s part be demonstrated in order to establish an anti-doping rule violation."

time and any place.” Most of these athletes are also required to submit “whereabouts information” to the CCES on a quarterly basis. This information includes the athlete’s “current residential address, training locations, competition schedule and any other regular activities.” At the highest levels, athletes are required to submit “for each day, a 60-minute time slot when [they] will be available for testing.” One of the fundamental characteristics of both the World Code and Canadian Program is strict liability: it is the athlete’s responsibility to “ensure that no substance on WADA’s Prohibited List enters his or her body,” and “it is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti-doping rule violation.” Athletes may also incur violations by refusing to be tested, tampering with a sample, or missing a test due to incomplete or inaccurate whereabouts information. Penalties for violations vary; the use of steroids, hormones, some stimulants, and prohibited methods (e.g., blood doping or transfusions) will result in a two-year suspension for a first offence and a lifetime suspension for a second violation. The use of “specified substances,” or those on the Prohibited List that are frequently found in over-the-counter medications or are less likely to be used as doping agents, may result in a lesser penalty. Specified substances include the beta-2 agonists used in many asthma medications and some stimulants, including ephedrine. Notably, cannabinoids such as marijuana and hashish are considered specified substances despite little evidence of their ability to enhance sporting performance. In the current program, a positive test is called an “adverse analytical finding.” When such a finding occurs, the CCES must, “to the comfortable satisfaction” of the Sport Dispute Resolution Centre of Canada’s Doping Tribunal, establish that a violation has occurred. According to the Canadian Anti-Doping Program, “the standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt,” in other words, some-

According to the Canadian Anti-Doping Program, “the standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt".

onerousness of current anti-doping programmes outweigh the good they do? Things to think about while we’re curled up on the couch cheering on our Canadian athletes. Let the Games begin! Greg Jackson is a Ph.D candidate in the Department of Sport Management at Brock University, in St. Catherines, Ontario. His research focuses on sport policy and the rights of athletes.

Sources where between the criminal and civil standards of proof. Athletes and sport organizations can appeal findings and the severity of the penalty through the Sport Dispute Resolution Centre.

Vancouver 2010 and Beyond In February 2010, Vancouver’s Organizing Committee, under IOC authority, will work with both WADA and the CCES to create a level playing field for athletes at the Games. The goal may be laudable, but the means aren’t without controversy. Are current anti-doping programmes aimed at protecting athletes’ health or the IOC’s image? Why such focus on drugs and not on other performance enhancers such as improvements in technology used for training and competition? Would harm reduction be a more reasonable approach than prohibition? Does the

1. Dubin, Charles. “The Report of the Commission of Inquiry into the Use of Drugs and Banned Practices Intended to Increase Athletic Performance.” (Dubin Report), June 26, 1990. 2. Christie, J. (1988, September 24). “Johnson Brings Home the Gold.” Globe & Mail, p. A1. 3. Sokol, A. (1988, September 24). “Ben’s Pure Gold.” Toronto Star, p. A1. 4. Walker, W. (1988, September 27). “Drug Scandal Shatters Canada’s Olympic Glory: Stripped of Gold Medal Johnson Banned for Life.” Toronto Star, p. A1. 5. CCES (2008) An Athlete’s Guide to Doping Control. www. cces.ca/pdfs/CCES-PUB-AthleteGuideDopingControlE.pdf 6. Amos, A. & Fridman, S. (2009) “Drugs in Sport: The legal issues.” Sport in Society, 12(3), 356-374. 7. “Canadian Anti-Doping Program” (2008), sections 7.79 – 8.29.

Available now through the Legal Resource Centre

For more information see:e: www www.landlordandtenant.org landlordandtenant org

January/February 2010

Feature Report on The Olympics and the Law

Re-defining Competition in Sport: the“Freedom of Excess” Brian Seaman The story behind the motto for the modern Olympic Games is a simple one. The man credited with being the father of the modern Olympic Games, Baron Pierre De Coubertin, heard a friend deliver a speech that ended in an oratorical Latin flourish, “Citius, Altius, Fortius” (Faster, Higher, Stronger). De Coubertin loved the sentiment and drive to win that such a simple phrase conveyed, so he adopted it as the Olympic motto. “Athletes need ‘freedom of excess,’ De Coubertin would say later. “That is why we gave them this motto … a motto for people who dare to try to break records.” The desire to provide an international forum where the world’s elite athletes could come together and compete has been an intrinsic part of the ethos of organizing committees of all the Olympics since the

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games’ revival in Athens in 1896. However, there has been another goal as well, as reflected in the Charter of the International Olympic Committee (IOC): that the international Olympic movement should have a high regard for human rights. There is eloquence in the language of the Charter: “The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.” When De Coubertin and the other founders of the modern Olympic movement were working toward the revival of the Olympics in the latter part of the 19th century, the “freedom of excess” they had in mind was an athlete’s individual freedom to train

CAS arbitrators – there is a pool of more than 150 of them drawn from 55 countries – are respected jurists from the international legal community and their decisions are generally highly respected in the sporting world.

harder and push the body harder than the other competitors in one’s field of sport. Jules Verne, the most pre-eminent science fiction writer at the time, foresaw a future that included space travel – an idea that must have seemed loopy to many of his contemporaries. However, what undoubtedly would have seemed equally fantastic to De Coubertin and his peers would be a day when a sprinter without natural legs below his knees could be running with his able-bodied counterparts, thanks to revolutionary prosthetic devices. Oscar Pistorius, a double-amputee, runs with the aid of a revolutionary type of J-shaped prosthetic limb called the Flex-Foot Cheetah that enables him to achieve times competitive with able-bodied sprinters. Pistorius was thus permitted to run in preOlympic qualifying meets with able-bodied runners and, though he achieved respectable times, they were not sufficient to allow him into the Games and indeed were below his own personal bests. In the run-up to the 2008 Beijing Olympics, the Court of Arbitration for Sport (CAS) made history by overruling an earlier decision of the International Association of Athletics Federation (IAAF) to ban athletes with prosthetic limbs from officially sanctioned competitions with able-bodied athletes. The IAAF had amended its competition rules in March of 2007 to include a ban on using “any technical device that incorporates springs, wheels or any other element that provides a user with an advantage over another athlete not using such a device.” The CAS is regarded generally by athletes, coaches, and sports administrators and officials alike as the “supreme court” of the sporting world.

Without even so much as a single cc of pseudoephedrine in their bloodstreams, the world’s fastest swimmers over the past few years have been blowing away record after record wearing skin-hugging aerodynamic suits that even critics within the sport itself have suggested could be considered as enhancements of a sort.

It is in fact an international arbitration body whose mandate is to settle disputes that arise in the world of sports. Headquartered in Lausanne, Switzerland, there are also permanent branches located in New York City and Sydney. However, since arbitration can take several months, CAS may also set up ad hoc panels in the Olympic Games’ host cities to deal with issues that can arise during competitions such as a medal-winning athlete testing positive for a banned substance. In these urgent situations, decisions can be issued within days. At the 2000 Summer Olympics in Sydney, for example, a temporary CAS panel quickly ruled in favour of the IOC’s decision to revoke the gold medal of a Romanian male gymnast who had tested positive for the banned substance pseudoephedrine. The idea for a body to adjudicate disputes arising during Olympic Games arose with a former President of the International Olympic Committee (IOC) named Juan Samaranch. This was partly in response to concerns in the international sporting world about political interference with judging and officiating and partly because of growing indications of the prevalence of the use of banned substances such as steroids among athletes, particularly, though not exclusively, those from the formerly communist countries of Eastern Europe and the defunct Soviet Union. Established in 1984, the CAS was initially under the governance structure of the IOC. It was not above criticism itself because of this lack of a transparent existence independent of the IOC’s political and regulatory mandates. That would change ten years later when a case decided by the CAS was successfully appealed to the Federal Supreme Court of Switzerland, on the basis that the CAS could not be truly impartial because of its presence within the governance structure of the IOC. Though the Swiss court did eventually find that the CAS could indeed constitute a proper court of arbitration, it identified as troubling the close links between the CAS and the IOC. Various reforms followed in the wake of this decision, including making the CAS more independent, both organizationally and financially. The most significant change was the inception of an International Council for Arbitration for Sport (ICAS), charged with the responsibility of managing the CAS, both in terms of its administrative and financial affairs. This supervisory function is undertaken by a group of 20 senior jurists from the international community, including a current judge on the United States’ Eighth Circuit Court of Appeals. CAS arbitrators – there is a pool of more than 150 of them drawn from 55 countries – are respected jurists from the international legal community and

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their decisions are generally highly respected in the sporting world. Because it is, strictly speaking, an arbitration tribunal rather than a court of law set up by a sovereign state, a dispute may be submitted to it only if there is an arbitration agreement between parties that specifies there shall be recourse to the CAS in the event of a dispute. However, in practice, with all the Olympic International Federations but one, in addition to many National Olympic Committees agreeing to the tribunal’s jurisdiction, the CAS is effectively the final court of appeal for an athlete disputing a ruling of the IOC or the athlete’s own national sports federation. Although the CAS can hear pretty much any matter from an aggrieved athlete so long as the parties have agreed to submit to arbitration, many of the disputes that come before it do arise from athletes losing a medal or being disqualified from an event because of testing positive for a banned substance. The case of Oscar Pistorius, then, is both anomalous and historically significant. It is one thing to continue to maintain strict rules to exclude athletes who test positive for artificial pharmaceutical and chemical products that enhance muscle mass and performance. But how should sports regulators -- in a spirit of tolerance and guided by an ethos of inclusivity and concern for human rights – address advancements in prosthetic devices that put physically challenged athletes at, or near, the competitive level of able-bodied athletes? Concern has been expressed among sports regulators and administrators that to permit Pistorius to compete with the able-bodied would invite technological and commercial competition among the makers of prosthetic devices for more efficient prostheses. However true that may be, how then may one reconcile this approach with the ongoing competition among makers of running shoes for better cushioning or the ongoing push to develop more aerodynamic body suits for speed skaters or swimmers? Indeed, it is in the latter category where one arguably sees the greyest of areas in terms of more efficient sport clothing or equipment. Without even so much as a single cc of pseudoephedrine in their bloodstreams, the world’s fastest swimmers over the past few years have been blowing away record after record wearing skin-hugging aerodynamic suits that even critics within the sport itself have suggested could be considered as enhancements of a sort. Nobody who watched the 2008 Beijing Olympics will forget American swimmer Michael Phelps and his record-breaking haul of eight gold medals. At a strapping 6 feet, 4 inches tall and with those powerful “windmill arms” of his, that Phelps would have been a powerful and formidable presence in a pool anywhere no matter what he was wearing is undoubtedly true. However, it is equally true to point out that

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Could the IAAF now draw on the example of FINA banning the aerodynamic swimsuits in support of a position to ban the use of prosthetic devices that would otherwise enable physically challenged runners like Oscar Pistorius to run competitively with his able-bodied counterparts?

he had some help in the form of a specially designed bodysuit – the Speedo LZR Racer – that is constructed from the world’s lightest woven swim fabric and was designed with the help of NASA engineers. Even this bit of space-age technology though may be obsolete, as Phelps learned when he lost the 200-metre freestyle event at the world swimming championships in July of 2009 to a German swimmer named Paul Biedermann. Biedermann, who was wearing a different kind of slick aerodynamic suit called the Arena X-Glide, went on to set a new world record in the 400-metre freestyle and himself credited the suit with giving him an advantage in the competition. The prevalence of these aerodynamic suits in swimming competitions – nobody who seriously expected to compete to win over the past few years could have dove into the pool without wearing one – has not escaped the attention of FINA, the international body responsible for regulating swimming competitions. With the examples of the unprecedented shattering of records at the 2008 Olympic Games and last year’s world championships to draw on, FINA has decided to ban the kinds of suits worn by Phelps and Biedermann; a ban that takes effect in May of 2010. Could the IAAF now draw on the example of FINA banning the aerodynamic swimsuits in support of a position to ban the use of prosthetic devices that would otherwise enable physically challenged runners like Oscar Pistorius to run competitively with his able-bodied counterparts? The answer is far from clear, though one thing is certain. Advances in medical science and prosthetics will mean that sports regulatory bodies will continue to have to address difficult issues that probably would have been relegated to the realm of science fiction for Baron De Coubertin and his peers as they proudly sat in the stands at the opening ceremonies of those first modern Olympics, 113 years ago. Brian Seaman is a Research Associate with the Alberta Civil Liberties Research Centre, in Calgary Alberta.

Feature Report on The Olympics and the Law

What’s in a Word: Olympic Peter Bowal and Thomas Brierton The Olympic spirit is neither the property of one race nor of one age. –— Baron Pierre de Coubertin

Introduction: The Commercial Olympics The Olympic spirit may not belong to anyone in particular, but almost everything else about the Olympic Games is legally owned and carefully managed today. As the Baron’s vision of amateurism has given way to professionalism, and winning has replaced “taking part [as] the most important thing,” the Olympic Games have become a very big business. During the interview process, candidate cities must guarantee that they will be able to fund their Games. Only 44 cities in 23 countries have ever hosted the Games. Vancouver’s 55,000 staff and 25,000 volunteers will welcome about 7,000 athletes and team officials from 80 countries for a total of 144 Olympic and Paralympic medal events, covered by 10,000 media personnel to 3 billion worldwide television viewers. Capital costs to build venues for the 2010 Winter Olympics in Vancou-

ver are close to $1 billion. The tab for security will be another $1 billion. Operating costs alone for the Games will approach $2 billion, raised primarily through private sponsorships and rights. Moreover, these are the less expensive Winter Games, staged during one of the deepest recessions in modern history.

Sponsorship Financing Marketing the Olympic brand has been controversial. Some say the Olympic Games are now like all other large over-commercialized sport events. Others say that local and national governments invest and risk much in competing for and hosting the Games. The International Olympic Committee (IOC) spurned corporate sponsorship until about 40 years ago. But the modern Olympics are expensive. The arrival of television and lucrative advertising markets opened the field to international sponsors seeking to associate themselves with the upbeat Olympic brand. The 1984 Summer Olympics in Los Angeles generated a record surplus of U.S.$225 million by selling exclusive sponsorship rights. The IOC moved in to develop the Olympic brand and control these international

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sponsorships with The Olympic Program (TOP) in 1985. TOP sponsorship costs U.S.$50 million for four years. International and domestic tiers of Olympic sponsorship have developed. The IOC negotiates and manages broadcast rights and the TOP worldwide sponsorship program. It distributes most of this marketing revenue, up to a $1 billion per year, to national organizations in its network to support staging the Games and promoting sport generally. The IOC assigns to the various National (Canadian Olympic Association) and Local Organizing Committees (VANOC) rights to exploit the symbols, the “Olympic” name and overall brand in order to sell domestic sponsorship, partnership and licensing within the host country. The economic value of the effort depends on how strictly it is enforced so that the benefits of the Olympic sponsorship accrue only to those who pay for it. Sponsors get exclusive global rights to use Olympic symbols for their product category in their promotional material. The IOC remains the central permanent administrative authority for the Games, which holds the copyrights, trademarks and other intangible property of the Olympic movement. The most valuable asset available to the international Olympic movement to generate revenue to mount these Games is its brand. The Olympic brand covers many things, both internationally, associated with the movement, and nationally with the Games at each location. These include the five intertwined rings and flag, the flame and torch, fanfare, creed, poster, Charter, theme, anthem and the Olympic motto Citius, Altius, Fortius, Latin for “Faster, Higher, Stronger”. Each Olympic Games has its own Olympic emblem or mascot, which is an animal or human figure distinctive to the host culture and integrated with the Olympic rings. Vancouver has four mascots (Miga, Quatchi, Sumi and Mukmuk) and the Inukshuk logo called Ilanaaq (friend). All such emblems are the exclusive property of the IOC and cannot be used without its authorization. Many entities would like to have their wares and services publicly associated with the popular Olympics. Since the brand comprises a revenue stream too important to slide into the public domain, the Olympic movement assiduously protects its symbols and usage of the word “Olympic.” It has succeeded in changing names of a rock band (The Olympic Hopefuls), non-profit groups who used the term for their competitive games, and a theatre (Improv Olympic). The “Olympics of the Mind” was forced to change to “Odyssey of the Mind,” and a card game “Legend of the Five Rings” was renamed. In this “pay to play” environment, few have escaped use of the Olympic name without legal consequences.

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The most valuable asset available to the international Olympic movement to generate revenue to mount these Games is its brand. The Olympic brand covers many things, both internationally, associated with the movement, and with the Games at each location. These include the five intertwined rings and flag, the flame and torch, fanfare, creed, poster, Charter, theme, anthem and the Olympic motto Citius, Altius, Fortius, Latin for "Faster, Higher, Stronger".

Exceptions include Olympic Meats and Olympic Paint, which even has a paintbrush in the form of a torch as its logo. The Special Olympics, an international event for people with mental disabilities held every four years in the year after the Olympics, is also unsanctioned. Some of its rules are contradictory. For example, corporate sponsorship is welcome, but is not allowed to name a specific Olympic venue (GM Place will be renamed Canada Hockey Place for the duration of the Games). The commercialization of the Games in the last 25 years may have given cause to the now regular reports of bribery and under-the-table dealing for the Games and even medal outcomes. Let’s examine the Canadian legal experience.

Legal Protection of the Olympic Trademark in Canada The word “Olympic” has uncertain origins. Some say it relates to Olympus, a mountain of Thessaly, fabled as the seat of the gods. Others say it refers to Olympia, a small plain in Elis, also in Greece. The word has no trade in Canada, other than in relation to these well-known quadrennial sporting events, and in particular, because Canada will have served as host of the event three times in 34 years. Most of our Olympic trademark law developed after the 1976 Montreal Olympic Games because the engine of commercialization did not start revving up until 1984. The legacy of public debt from the Montreal Games provides painful evidence of that fact. From the early 1980s, the Canadian Olympic Association (COA) began to use the Trade Marks Act and the courts to protect its family of marks. It challenged several companies for infringing the Olympic trademark in the lead-up to the Calgary Winter Olympics in 1988. Today COA, and its local proxies, such as the Vancouver Olympic Committee (VANOC), enjoy legal status as public authorities. Here are some of the principal cases as well as other initiatives taken to legally fortify the Olympic trademark.

A. Judicial Decisions Konica v. COA The beer maker and record book publisher, Guinness, had for decades published its Book of Olympic Records describing athletic achievements and milestones in the Olympic Games. In 1987, camera and film company Konica Canada Inc. licensed the rights to publish and distribute its own “premium edition” of the Guinness Book of Olympic Records in the run-up to the Calgary Olympics. Many other companies had used the Guinness Book in similar promotions for over a decade. Konica used promotional packaging including a free copy of the book and three rolls of Konica film shrink-wrapped together, with both the large, prominent title of the book and the film’s label displayed outward. In Canada, Official Marks in the Trade Marks Act are granted a higher level of trade-mark protection than a regular trade-mark. These super trademarks secure the work and reputation of “public authorities” such as governments, the military, the Red Cross, the United Nations, the Queen, and others by setting apart their marks from trade and business. These public authorities can merely use and give notice of the adoption of an Official Mark, thereby pre-empting any access by private parties for any purpose without proof of injury. If COA could establish its public authority status, it would obtain an advantage to protect its marks and derive maximum economic benefit from them. In 1980 it gave public notice of the adoption and use of the word “Olympic” as an Official Mark. The Court found COA to be a public authority on the three-part test: • it had a duty to the public; • there was a significant degree of government control; and • its profits benefited the public. COA obtained an injunction against Konica shortly before the 1988 Olympics in Calgary. The publication and distribution of the book with “Olympic” in its title constituted the unauthorized use of the Official Mark. Even operating in good faith under licence with Guinness, who had long produced the books, could not overcome COA’s intervening rights to this Official Mark. Konica was using “Olympic” under

A form of freeloading, “ambush marketing” is generally a way for companies to promote and advertise themselves to suggest that they are officially sponsoring the Olympics or specific events, when they are not.

licence from Guinness, but without permission from COA. Konica had ordered 125,000 books. It cancelled some of the order, gave away many and was left with a surplus of 22,000 books.

“See You In Vancouver” The SYI Fund is a non-profit organization that assists athletes in raising funds to attend the Olympics worldwide. Since their founding in 1997, it has run campaigns with “See You in Sydney” and “See You in Salt Lake” messaging. The SYI Fund sought to benefit Olympic athletes and wanted to use a name and marks that would associate it with the Olympics. In 2003, the SYI Fund filed for trademarks for upcoming Olympics. These included the “See you in …” for Athens, Torino, Beijing and Vancouver. In August 2004, the COA gave public notice opposing the use of the phrases “See you in Torino”, “See you in Beijing” and “See you in Vancouver.” However, since it could not show it had adopted and used these Official Marks prior to the public notice, the court refused COA’s claim of priority. This case was an example of COA overplaying its hand in its pursuit to control all aspects of the Olympic brand in Canada, even to the point of opposing other charitable efforts. SYI Fund’s income directly benefit Canadian athletes, also a COA objective. Some of that income was squandered by the COA litigation, not to mention goodwill in the cause.

Olympus Optical v. COA In 1983 Olympus applied to register “Olympus”, based on use in Canada for one year. The company retailed tape cassettes, recorders, televisions, cameras and other electronics. COA opposed on the basis that the proposed mark started with the letters “OLYM.” There were 89 other non-COA registrations beginning with these letters. COA’s opposition failed.

Allied v. COA In 1989 Allied sought to register the trade mark “OLYMPIAN,” having claimed to have adopted it in 1977. COA opposed due to its public notice of adoption in 1980. Although Allied was first to adopt the mark in Canada, the Federal Court of Appeal found that COA’s Official Mark priority applied retroactively. Allied lost access to the word. Once a public authority such as COA has given public notice of the adoption of a particular trademark no other entity may register or adopt that trademark, or a similar confusing one.

Olymel v. COA Olymel, a Quebec meat processing company, applied in 1991 to register the trademarks “Olymel”

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and “Olymel & Design” for the meats and other related industry services the company provided. COA opposed. The “imperfect recollection” test was applied. It asked “whether a person who, on a first impression, knowing one mark only and having an imperfect recollection of it, would likely be deceived or confused.” Olymel’s marks were not identical or even resembling COA’s Official Marks. Someone with imperfect recollection of COA’s Olympic marks, upon seeing Olymel’s mark applied to its meat industry would not infer Olymel’s meat and services were associated with COA. The letters “OLYM” did not refer exclusively to COA’s family of marks because there were 143 other cases where these four letters had been incorporated into a mark. The Olymel registration was permitted.

Hipson Between 1980 and 1986, COA gave public notification of many Official Marks, including: Winter Games, Games 1988, ‘88, Calgary 88, Hidy, Howdy and the Olympic Torch and Flame. It did not claim “Winter “ ‘88.” In 1985, Hipson, President of Calgary Souvenir Imports Ltd., commissioned the design and manufacture of six different lapel pins representing the Calgary Olympics. In January 1985, COA sent an application to Hipson for a licence under the XV Olympic Winter Games merchandise licence program. They did not receive a reply. COA sent Hipson a letter asking him to stop distributing and selling the lapel pins. All were sold by October. All of the pins had a flame or torch, a white polar bear, the word Calgary, the number ‘88, or the word “Winter”. Hipson said the word “Winter” and the number ‘88 were so common that they were public property beyond the ownership of any authority. Would someone attending the Games and buying souvenirs be confused between Hipson’s wares and those manufactured under COA licence? The court agreed with COA that apostrophizing 1988 created a symbol of the precise XV Winter Olympics event. Although Hipson did not use the word “Olympic” on his pins, the conjunction of symbols and words infringed by too closely resembling the Official Marks. One could not distinguish between Hipson’s pins and official pins manufactured under licence. A permanent injunction was granted to restrain Hipson from making and selling the pins. Since the pins were all sold before the decision, the outcome only ensured that no more pins were made and sold, including by other companies who might have joined Hipson in the unlicenced business.

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The Olympic and Paralympic Marks Act provides indefinite protection for 32 marks and temporary protection for another 34 Vancouver-specific marks and expressions, and any possible translations, until December 31, 2010. Some of the protected words and slogans include: gold, silver, bronze, medals, sponsor, Games, 2010, Sea to Sky Games, “faster, higher, stronger”, Vancouver and “Spirit in Motion”.

Techniquip v. COA COA claims a family of some 40 Official Marks, including representations of athletes and more than 250 trademark registrations of various fanciful pictorial representations of people. Human stick figures are widely found in telephone business directories, magazines, newspapers, public signs and advertising. Techniquip proposed using stick figures of people on its lifeline connectors, safety belts and hooks, harnesses, cable grips, anchors, and other fall protection equipment. COA opposed on the basis that their marks consisted of similar white stick men on a black background, participating in various sporting events. The Federal Court found several differences and similarities between the stick figures of Techniquip and COA. Both marks were white figures on black backgrounds, with detached body parts. However, the COA background is squared, its figures are in motion, and there are lines and other drawings to indicate movement as well as a particular sport. Techniquip figures are on a rounded background and are motionless. The particular elements in COA’s marks, using human figures engaged in sporting activities, were not ascribed to the Techniquip design which showed an erect, motionless human figure, wearing what is obviously a harness. Accordingly, Techniquip’s stick figures were allowed registration as trademarks.

B. Ambush Marketing A world sporting event offers exclusive sponsorship opportunities amid unlimited marketing possibilities. Expensive sponsorship demands enforcement action to protect exclusivity. Policing the marketplace is increasingly difficult given ingenuity and the many, modern, non-stop marketing channels. The cases we have reviewed invoked the Olympic brand specifically and directly. Yet there are countless imaginative ways to deliberately create a subtle marketing association with the Olympics without paying for a COA licence. A form of freeloading, “ambush marketing” is generally a way for companies to promote and advertise themselves to suggest that they are officially sponsoring the Olympics or specific

events, when they are not. Their inventive wording or imaging does not violate trademark law; yet timely invocation of the Olympic Games enhances their own business profile and sales. Therefore, ambush marketing can be used by competitors of an official sponsor to garner positive commercial attention for themselves. They try to associate with the Olympics without making the significant financial investment in sponsorship. This unfair business practice dilutes the value of what the sponsors are paying for, misleads consumers and over-saturates the official brand. Examples would be a non-sponsor advertising “I love Vancouver” during the Winter Olympics; purchasing broadcast times immediately before or after Games events; sponsoring broadcasts without officially sponsoring events; sponsoring an individual athlete; and showcasing Olympic giveaways, posters, and good luck advertisements to athletes. It is difficult to know who is an official sponsor and who is not when all businesses allude to the Games. The IOC mandated COA to protect its Olympic brand in Canada and the financial investment of official sponsors. To address ambush marketing, a federal statute was enacted in 2007 to deal specifically with the Olympic marks. The Olympic and Paralympic Marks Act provides indefinite protection for 32 marks and temporary protection for another 34 Vancouver-specific marks and expressions, and any possible translations, until December 31, 2010. Some of the protected words and slogans include: gold, silver, bronze, medals, sponsor, Games, 2010, Sea to Sky Games, “faster, higher, stronger”, Vancouver and “Spirit in Motion”. The Act empowers COA and VANOC to oppose marketing that undermines official sponsorship. Any promotional activity that has the effect of misleading the public into thinking that the activity is approved or licensed by the COA is illegal. An injunction can issue without proof of harm. Since this legislation potentially constrains corporate expression relating to a matter of public interest, it could be subject to challenge under the Charter. Until then, it represents another attempt by Canadian law to facilitate COA control over the Olympic brand.

C. Trademarking the National Anthem In late 2008 VANOC claimed “With glowing hearts” (Des plus brillants exploits in French), lyrics from the national anthem, as trademarked mottos for the 2010 Olympics. It stated that it would only challenge usage of the lines in ambush marketing contexts. Our national anthem can be generally used by anyone as it is in the public domain.

D. Other Special Olympic Legislation In October 2009, the Government of British Columbia proposed to give municipalities the power to enter private property to seize signs thought to be “anti-Olympic” during the 2010 Games. The Vancouver Charter was amended to allow fines of up to $10,000 and imprisonment for up to six months for sign and bylaw violations.

Conclusion A lesser known principle of the Olympic movement is to “oppose any commercial abuse of sport and athletes.” The Winter Olympic Games in Vancouver 2010, and the Paralympic Games during the month following, are major events for private business interests.With the speed and reach of modern telecommunications, and the national scope of the host effort, infringements anywhere in the country are as serious as those next door to the venues. This is why VANOC maintains a prominent section on the Games’ official website entitled “Protecting the Brand” and why it challenges unauthorized business affiliations with the Games. It has a legal duty to protect the exclusive rights it has been entrusted with by the IOC and that it has granted to its marketing partners. The Olympic Games have had to adapt to the changing social, economic, political and technological realities of the modern era. The growth of the mass media and the Internet has created both an opportunity and a challenge for the commercialization of the Games. The law goes a long way to help the IOC, COA and Official Sponsors. Nevertheless, the law and its enforcement are cumbersome and COA will find it time-consuming and costly to monitor and litigate every incident of infringement and ambush marketing. Michael Phelps, the most decorated Olympian, famously understated, “I always thought, it would be neat to make the Olympic team.” Businesses can also make the Olympic team. But to accept that important “take part” invitation in the Creed, business must play under Olympic rules. Peter Bowal is a Professor of Law at the Haskayne School of Business at the University of Calgary in Calgary, Alberta and Thomas D. Brierton is an Associate Professor at the Eberhardt School of Business at the University of the Pacific in Stockton, California.

January/February 2010

School's In

The Olympics and the Law Lorine Sweeney

Part One To the Student: In the following inquiry you will examine how Olympic athletes are affected by governing rules and laws. The Question Overarching Question: What Olympic rules or laws have had the most effect on Olympic athletes?

Possible Sub-questions: 1. Have there been changes in Olympic rules or laws that have benefited participating athletes? How? Why? Is there a need for further refinement? 2. Is there a need for new laws that will benefit athletes? Why? What will the benefits be? 3. Are there rules or laws that hinder the spirit of Olympic competition? What are they? How can they be changed? What will be the ramifications if they are eliminated?

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The Task Your class is going to share student opinions about Olympic laws that affect participating athletes! You will examine rules and laws that govern Olympic competition and, in a format of your choice, decide on an audience and present your opinion in answer to the overarching question.

Planning Your Inquiry Examine the Question: • Brainstorm facts you might know or think you know about Olympic laws or rules that govern participating athletes with classmates or your teacher. • Jot down some questions relating to what you might want to find out. • Examine the above question and possible sub-questions. Note which sub-question you might like to choose for a focus, or draft your own question.

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List Possible Information Sources

Outline a Plan for Your Inquiry

List possible sources for finding out information. • Websites: Try searching in Search Engines such as Google Advanced Search • Directories such as Librarians’ Index at

In point form, explain what you plan to do for your inquiry. For example, tell • what your focus might be (you may change this focus as you learn more in your research); • what your presentation might look like; • where you will try to find information; and • who your main audience might be.

http://lii.org

• School Library Catalogue • Newspapers • Other

Reflect About Your inquiry Identify the Audience and Presentation Format List what presentation format interests you. Think about your strengths. • In what format would you best be able to convince your audience? • Are you one who learns best by reading, viewing, or listening? • Do you like to tell or show when you are teaching others? • Do you have computer or drama skills that could be used in your presentation? • Examine possible presentation formats at the end of the assignment.

Discuss Evaluation • Examine the suggested evaluation rubric at the end of the assignment. • Discuss with your teacher any areas that confuse you or areas you would like to change. • Write a sentence or two that demonstrate your understanding of your evaluation criteria.

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Examine your attitude about the inquiry. Are you motivated to actually say something meaningful to an audience? Are you interested in being part of the overall presentation? If you choose a format and question meaningful to you, you will enjoy this experience!

Possible Presentation Formats Look at formats for your presentation. Use the following ideas as suggestions only. Also, think of combining one or more formats. • Oral: interviews, debates, monologue, song, story theatre, podcast, you-tube presentation • Written: blog, advertisement, editorial, pamphlet, newspaper article, essay • Visual: folding screen, diagram, logo, photo essay, posters • Kinesthetic: collection, dance, demonstration, mini-centre, mobile

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Suggested Evaluation Student

Level 4 Excellent

Criteria Demonstrates understanding of Olympic legal issues that might affect athletes

3 Proficient

2 Adequate

1 Limited *

Provides pertinent information that addresses the question.

Provides relevant information that addresses the question.

Provides appropriate information that addresses the question.

Provides trivial information that addresses the question

Makes insightful connections to the issue.

Makes meaningful connections to the issue.

Makes simplistic connections to the issue.

Makes vague and/or unrelated connections to the issue.

Depending on focus, demonstrates critical understanding of benefits, problems and/or solutions to issues pertaining to Olympic laws & athletes.

Provides perceptive critical understanding of benefits, problems and/or solutions to issues pertaining to Olympic laws & athletes.

Provides logical critical understanding of benefits, problems and/or solutions to issues pertaining to Olympic laws & athletes.

Provides basic critical understanding of benefits, problems and/or solutions to issues pertaining to Olympic laws & athletes.

Provides critical understanding of benefits, problems and/or solutions to issues pertaining to Olympic laws and athletes.

Communicates information

Communicates information in a compelling manner to engage the audience.

Communicates information in a purposeful manner to interest the audience.

Communicates information in a straight-forward manner that generally holds the attention of the audience.

Communicates information in an ineffective manner that does little to sustain the attention of the audience.

Insufficient/ Blank * No score is awarded because there is insufficient evidence of student performance based on the requirements of the assessment task.

When work is judged to be limited or insufficient, the teacher makes decisions about appropriate intervention to help the student improve.

January/February 2010

LawNow

Part Two: Olympic Flag and Logo Competition Directions You are an athlete competing in the event: “Rules and Laws Governing the Olympic Flag and Logo.” You are really hoping to be on the podium receiving a well-deserved medal! In order to be a medal winner, you must correctly answer at least eight of following ten questions:

According to the Olympic Charter: 1. When displaying a multi-coloured Olympic symbol, the five colours of the rings must be a. Blue, black, yellow, green, red b. Orange, blue, yellow, green, purple c. Yellow, brown, green, red, blue d. Black, white, red, yellow, green 2. The rings in the Olympic flag are interlaced from a. Top to bottom b. Right to left c. Left to right d. Alternately from left to right and from right to left 3. The Olympic flag may be flown a. With a slight border depicting any of the ring colours b. With a double border of black c. With either a small border or no border d. With no border e. Any of the above 4. An Olympic flag that flies at the Olympic Games must be a. Smaller than any participating country’s flag b. The same size as the host country’s flag c. Larger than any other flag flown at the Olympic Games d. Any of the above 5. Olympic flags flown in the main stadium and in all other venues placed under the responsibility of the Olympic Committee are a. Hoisted during the opening ceremony and lowered during the closing ceremony of the Olympic Games b. Hoisted during the opening ceremony and lowered when each event is completed c. Hoisted at various times depending on the beginning date of the competition d. Hoisted at the discretion of the host city

6. The Vancouver Olympic Committee from January 1, 2005 through December 31, 2012 has a. Custodianship of the Olympic brand b. Exclusive Canadian marketing rights to the Olympic brand c. An obligation to fulfill Canada’s commitment to protect the Olympic brand d. All of the above 7. “Ambush marketing” can be defined as a. Marketing that benefits from false association with the Olympic movement without paying money to secure official sponsorship rights b. False marketing of an athlete’s abilities c. Marketing the Olympic flag for personal benefit without permission from the Olympic Committee d. Marketing that reaps benefits from the Olympic movement by creating a false or unauthorized association with the movement e. Both a and d f. All of the above 8. The Canadian Olympic and Paralympic Marks Act helps ensure that the Canadian commitments to the IOC are upheld. The Act focuses on a. Advertisements that use words and phrases associated with the Games b. Clothes that use logos or pictures associated with the Games c. Sports that use Olympic logos before the official Games begin d. Businesses that use Olympic logos for profit 9. The Olympic brand is the property of a. The International Olympic Committee b. The World Sports Federation c. The Olympic Sports Federation d. The Olympic Legal Society 10.The Olympic brand includes a. Only the Olympic logo b. Olympic logos and all names associated with the Olympics c. The Olympic flag and anthem d. All the names, phrases, marks, logos and designs related to the Olympic movement

January/February January/February 2010 2010

Special Report on Marriage

I Do, I Do, and I Do Again: Questions Arising from Bountiful

Robert G. Harvie

Polygamous relationships – should they be legal? Should the law permit a man to have two or more wives or, for that matter, a woman to have two or more husbands (polyandry)? This question was to be put before a court in British Columbia. However, recent events have dictated that we may have to wait a little longer to test the judicial waters. Charges were laid against Winston Blackmore and James Oler, setting up a constitutional review of the Criminal Code of Canada prohibition of polygamy, Madame Justice Sunni Stromberg-Stein dismissed the charges on September 23, 2009. Justice Stromberg-Stein found that the B.C. Attorney General had overstepped its authority when it appointed a third special prosecutor after the first two recommended against such a prosecution. on the basis that a conviction was unlikely based upon constitutional grounds.

January/February 2010

What would the result likely have been? Well, the first two prosecutors retained by the B.C. Attorney General advised that there was a poor likelihood of success based upon constitutional grounds – the suggestion being that the charges could not stand the scrutiny of the Canadian Charter of Rights and Freedoms. This may be a not-so-subtle hint as to things to come. For many Canadians, the idea of our Charter being used to allow for polygamous relationships might seem antithetical. The concept of polygamy itself suggests subjugation of women and female children who are brought up to be asked to accept the right of a man to have multiple wives. How can the Charter be used to condone such a situation? Well, the question of polygamy is a tough one, and to begin at the beginning, section 293 of the Criminal Code of Canada provides:

For many Canadians, the idea of our Charter being used to allow for polygamous relationships might seem antithetical. The concept of polygamy itself suggests subjugaton of women and female children who are brought up to be asked to accept the right of a man to have multiple wives. How can the Charter be used to condone such a situation?

“(1) Every one who (a) practises or enters into or in any manner agrees or consents to practise or enter into (i) any form of polygamy, or (ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii), is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.” Seems straightforward enough, no? You can’t be married or enter into a “conjugal union” with more than one person at the same time. Who could argue with that? Well, oddly enough, some support of the polygamous argument comes from the recent efforts of our courts to assure equality and freedom of discrimination for homosexuals and legal recognition of homosexual unions. In seeking to protect one disadvantaged group in society (homosexual persons), we may have, arguably, opened the door to allow for risk of harm to another disadvantaged group – women and female children.

How is this? Well, although the Supreme Court of Canada has never formally ruled on the obligation of the state to affirm same-sex marriages, cases on point from lower courts, particularly EGALE Canada Inc. v. Canada (Attorney General) decided in 2003 by the British Columbia Court of Appeal, and Halpern v.

the courts have acknowledged that neither traditional religious principles nor even the broader community were entitled to “override the reasonable expressions of will of the marital parties themselves.”

Toronto (City) decided in 2002 by the Ontario Divisional Court, led the way. These cases eventually became the basis upon which the federal government passed legislation permitting the recognition of samesex marriage in Canada. In the EGALE case, the Court looks at the history of marriage in Canada and the development of societal attitudes towards same-sex relationships. Curiously, the Court points out that up until 1969, as with the current laws regarding polygamy, same-sex relations between consenting adults also constituted a criminal offence. In coming to its decision, the B.C. Court of Appeal in EGALE noted that much of the evidence brought before it was of questionable use. At paragraph 35, the Court comments that: “The parties and the interveners also filed affidavits by individuals having expertise in various fields, including individual and comparative religions, history, anthropology, ethics and law, sociology, gender studies, linguistics, lesbian and gay studies, theology, education, economics, and philosophy. Those affidavits include opinions on such topics as the history of marriage; whether same-sex marriages have ever been recognized within societies; if so, whether same-sex marriages have ever represented a norm within those societies; the beliefs of various religious groups with respect to marriage in general and samesex marriage in particular; the potential consequences within specific religions, and within society generally, if same-sex marriages are recognized at law, etc. While these affidavits were enlightening, several overstepped the boundary between opinion evidence on a matter in issue, and advocacy for a particular result.”(emphasis added.) In fact, the Court dismisses almost entirely any utilitarian argument regarding the construct of marriage as being based upon the need to procreate, and in fact, goes on to illustrate the sweeping changes made to the concept of marriage in general: “In the early part of the twentieth century, sweeping new laws were passed to govern marriage formalities, divorce, alimony, marital property, wife abuse, child custody, adoption, child support, child abuse, juvenile delinquency and education of minors, among other subjects. Such sweeping legal changes had several consequences. Marriages became easier to contract and easier to dissolve. Wives received greater independence in their relationships outside the family. Children received greater protection from the abuses, and neglect of their parents, and greater access to benefit rights. And the state eclipsed the church as the principal external authority governing marriage and family life. The Catholic sacramental concept of the family governed principally by the church and the Protestant concepts of the family governed by the church and broader Christian community began to give way to a new privatist concept of the family whereby the

January/February 2010

wills of the marital parties became primary. Neither the church, nor the local community, nor the paterfamilias could override the reasonable expressions of will of the marital parties themselves.” (emphasis added) The significance of this reference cannot be overstated. While not central, perhaps, to the determination of the legality of same-sex marriage, it is still evident that the courts have acknowledged that neither traditional religious principles nor even the broader community were entitled to “override the reasonable expressions of will of the marital parties themselves.” As if to hint at things to come, the Court goes further, again quoting from Halpern, pointing out that: “… the functional distinction between the rights of the married and the unmarried has been narrowed by a growing constitutional law of sexual autonomy and privacy. Homosexual, bisexual, and other intimate associations have gained increasing acceptance at large, and at law.”(emphasis added.) Consider these comments as now applied to the criminalization of polygamous relationships. No doubt, one of the fundamental arguments to be advanced will be the potential for abuse and domination of female family members in such relationships. However, in answer to those concerns, I would point out the following: • Firstly, it should be noted that in determining the entitlement of same-sex relationships to be protected against discrimination, the courts did not rely on any examination of the degree to which those relationships were or were not beneficial to the broader society or to the parties themselves. As such, it is suggested that courts should not get into a weighing of the “cost/benefit” of such relationships to the parties or to society as a whole. In fact, the cases suggest much the opposite: that parties should have autonomy to form relationships and “marriages” that may or may not equate with traditional or Judeo-Christian concepts of marriage. • Secondly, and perhaps more importantly, it could as easily be suggested that many fundamental religious beliefs in even our mainstream churches also lend themselves to notions of female subjugation, from Catholicism to mainstream Mormonism, or to fundamentalist Muslim faith. We may go so far as to take notice that intimate relationships of any type statistically increase the likelihood of a woman being subjected to abuse. What then? Can our courts truly decide which religions and what forms of associations are worthy of Charter protection based upon a statistical cost/benefit analysis of the welfare of the members of that group? Certainly that can’t be the case.

January/February 2010

Section 15 may provide further protection for those who will no doubt argue that the criminalization of polygamy and the refusal to recognize polygamy amounts to a prohibited form of discrimination.

Following up on the last point, beyond the broad arguments in favor of personal autonomy free of interference and discrimination by the state, our Charter, specifically section 15, also entitles us to freedom from discrimination based upon religion, race, and country of origin. Recognizing that polygamy may arguably be considered a tenet of religious faith or at least cultural identity, not only for fundamental Mormons but also many Muslims and traditional African cultures, section 15 may provide further protection for those who will no doubt argue that the criminalization of polygamy and the refusal to recognize polygamy amounts to a prohibited form of discrimination. Clearly, the courts have accepted the shift towards allowing consenting adults to form relationships that work for them free of interference, and in fact, free of discrimination from the State. This is the fundamental basis of the EGALE and Halpern decisions. Those decisions do not in any manner seek to pass judgment on the relative merits of homosexual relationships, and, it is submitted, if the courts are consistent, then some of the opinion from Halpern, referred to in EGALE, may require that the courts take a similar view regarding polygamous marriage. Provided the parties are consenting adults, it is difficult to imagine how the courts will allow the prohibition against polygamy in our Criminal Code to stand in light of their reasons regarding same-sex relationships. As Pierre Trudeau said back in December of 1967, “there’s no place for the state in the bedrooms of the nation,” adding that “what’s done in private between adults doesn’t concern the Criminal Code.” Clearly, the reasoning of the Courts in EGALE and Halpern resonate with this sentiment, and it is submitted, without passing judgment one way or the other, that the private decisions of consenting adults are likely to be accorded the same protection when they decide to have relationships of three or more. To quote Bob Dylan, another sixties-era icon, “The times they are a changin”. Robert G. Harvie is a lawyer with the firm of Huckvale Wilde Harvie MacLennan LLP in Lethbridge, Alberta.

Special Report on Marriage

Polygamy, Freedom of Religion, and Equality:

What Happens When Rights Collide? Linda McKay-Panos and Brian Seaman Polygamy, a type of matrimonial union where a person has several concurrent spouses, is illegal in Canada. According to s. 293 of the Criminal Code, anyone who practises or enters into a polygamous union, or who is a party to any ritual or agreement of any kind that purports to give effect to a polygamous union, is guilty of an indictable offence and liable to a prison term of up to five years. Well, oddly enough, some support for the polygamous relationships have reportedly been the norm for decades. In the rather eponymously named community of Bountiful, over a thousand people live in accordance with the precepts of their religion, one of which is that a man will enjoy an eternal celestial afterlife along with the many “celestial wives” he marries while living and the children he fathers with them. Bountiful is home to adherents of the Fundamentalist Church of Latter Day Saints (FLDS), a breakaway sect whose roots lie in mainstream Mormonism. The founders of the FLDS seceded from the Mormon religion in the latter part of the 19th century after Mormon church elders formally renounced polygamy as a pre-condition to the admission of Utah as a state into the United States

of America. Bountiful is the only FLDS community in Canada, but there are several similar polygamous FLDS communities scattered throughout the United States and Mexico with the majority of the estimated 55,000 adherents residing in the United States. Law enforcement authorities in Utah and Arizona, where many of the FLDS faithful reside, have pursued charges arising from polygamist practices over the years with a track record that has not been marked by much success. Among other problems that have arisen for prosecutors is the probative issue of dealing with reluctant, even hostile, witnesses, that is, women and children refusing to testify against their husbands and fathers. This reluctance to co-operate with lawful authorities has been identified as a tacit policy known among the FLDS faithful as “keep sweet,” meaning “keep quiet about the practices of the group and do not co-operate with the evil outside world.” (For a detailed account of life within a polygamous family in Bountiful, read Keep Sweet: Children of Polygamy (Dave’s Press:2004), which tells the story of Debbie Palmer, a former polygamous spouse who left Bountiful many years ago with a few of her children. Also, see “Bust-up in Bounti-

January/February 2010

ful,” www.cbc.ca/fifth/bustupinbountiful.) Then there is the non-legal issue of bad public relations optics; the intensive media scrutiny once the police move in to make their arrests and take children into protective custody. The largest and most dramatic example of prosecution occurred in 1953 when the State of Arizona moved against an FLDS community called Short Creek, arresting everyone in the community with the exception of five adults and the community’s 236 children. The children were taken into protective custody by the state’s child welfare authorities and placed in foster homes for the next several years while the legal process against their parents played out. Eventually, state prosecutors reached an agreement with 26 adult males who agreed to plead guilty to “open and notorious co-habitation” in return for one-year periods of probation. The children were eventually returned to their parents, and the incident proved to be a public relations disaster for the state governor, who lost his office in an election in the event’s aftermath. Aside from the difficult evidentiary issues that arise in prosecuting polygamy, there is also the fact that a person charged with violating the anti-polygamy provision of a criminal code could assert freedom of religion as a defence. This assumes that polygamy is an article of the accused person’s religious faith, which it certainly is for the FLDS faithful. Freedom of religion in Canada is a right embodied in section 2(a) of the Canadian Charter of Rights and Freedoms. However, as a growing body of judicial decisions has established since the Charter’s inception in 1982, no right – including freedom of religion – is absolute. In cases where rights of different people are in conflict, two key principles have emerged from decisions of the Supreme Court of Canada (Dagenais v. Canadian Broadcasting Corporation 1994; Trinity Western University College v. British Columbia College of Teachers, 2001): • there is no hierarchy of rights in the Charter as the document must be read as a whole; and • a balance must be found that respects the importance of both sets of rights. With reports of FLDS children receiving substandard education and underage girls being married off to male church elders twice or even three times their age, the observation that is begging to be made is that notwithstanding an assertion of a right to freely practise one’s religion, the equality rights of children and women within the FLDS community of Bountiful are not being respected under Charter sections 15 and 28. When the leaders of two rival factions in Bountiful named Winston Blackmore and James Oler were

January/February 2010

However criminal it may be to practise polygamy, there’s a community in southeastern British Columbia where polygamous relationships have reportedly been the norm for decades.

charged with one count each of polygamy earlier this year, hopes were raised among many legal observers and constitutional law experts that the constitutionality of section 293 would finally be put to the test. It was hardly a sure thing, though, that charges would ever be laid at all. The RCMP had conducted an investigation in 2005 and then subsequently recommended that charges be laid. However, various legal experts consulted by the Attorney General of British Columbia gave the opinion that religious freedom would probably be raised as a defence – which would put into question the constitutionality of section 293. Indeed, a special prosecutor appointed in 2007 had even advised that the question of the constitutionality of section 293 should first be referred to the Supreme Court of Canada for a ruling before any charges were laid. However, then-Attorney General Wally Oppal appointed a different special prosecutor instead – one who recommended laying charges. In a petition to stay the charges, counsel for the two accused argued that the Attorney General had acted improperly by engaging in “prosecutor shopping,” and thus had acted unlawfully. In September 2009, a British Columbia Supreme Court Judge agreed, quashing the appointment of the special prosecutor, which effectively quashed the charges of polygamy laid under section 293. [NB: At the time this article was written, the Attorney General was considering appealing the decision.] Unfortunately then, the British Columbia Court never had the opportunity to deal with the substantive issues. It is possible that in the future, a court

However, as a growing body of judicial decisions has established since the Charter’s inception in 1982, no right – including freedom of religion – is absolute.

What is the implication of the Hutterian Brethren case for a future challenge of the anti-polygamy law? In the case of Bountiful, the anti-polygamy law will probably be deemed to violate Charter s. 2(a) because it is a significant interference with a sincerely held belief of FLDS adherents …

will be asked to determine whether the Criminal Code anti-polygamy provisions are unconstitutional. For some current guidance on how a court might proceed to deal with the issue of polygamy and religious freedom, we can look to a recent decision of the Supreme Court of Canada where freedom of religion was at issue. In Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 (Hutterian Brethren), a majority of the Supreme Court of Canada (SCC) found that the violation of freedom of religion caused by the photo requirement in driver’s licences was justifiable under s. 1 of the Charter. The Hutterites in Wilson Colony believe that it is contrary to the Second Commandment (“You shall not make of yourself a graven image …”) to have their photos taken. Until 2003, Alberta’s Registrar of Motor Vehicles granted them an exemption from the photo requirement on religious grounds. According to the government, the exemption was removed and a universal photo requirement was adopted to minimize identity theft arising from the use of driver’s licences. With regard to freedom of religion under Charter s. 2(a), the majority of the SCC, in a brief analysis, determined that the belief was sincerely held and that the law interfered with the belief in a way that was more than trivial. Hence, s. 2(a) was violated. The Court then proceeded to analyze whether the violation of the Charter right could be “demonstrably justified in a free and democratic society” as required under Charter s. 1. Chief Justice McLachlin (speaking for the majority) said, “the negative impact on the freedom of religion of colony members who wish to

Hence, it could be argued that the harm to equality rights of children and women inherent in the practice of polygamy in Bountiful will be accepted by the Court as a pressing and substantial objective sufficient to override their right to freedom of religion.

obtain licences does not outweigh the benefits associated with the universal photo requirement.” The SCC accepted that the primary reasons for the regulation are the enhancement of security, additional efficiency for the police, and possible future harmonization of licensing. What is the implication of the Hutterian Brethren case for a future challenge of the anti-polygamy law? In the case of Bountiful, the anti-polygamy law will probably be deemed to violate Charter s. 2(a) because it is a significant interference with a sincerely held belief of FLDS adherents, that is that males who marry multiple partners will then live for eternity somewhere among the heavens. The Hutterian Brethren case will likely have some impact on the analysis of whether anti-polygamy law can nevertheless be saved by Charter s. 1. First, as with the photo requirement, the anti-polygamy law is legislation passed by the government (rather than government action) and the SCC has indicated that the government should be given deference at least when dealing with “limits on rights in public programs that regulate social and commercial interactions” (Hutterian Brethren). Additionally, in the case of polygamy, it could also be argued that deference should be owed because the government is protecting vulnerable groups (e.g., women and children) as in R. v. Butler, [1992] 1 S.C.R. 452 and anti-obscenity law. Second, Chief Justice McLachlin has indicated that the Court will consider the interests of society over minority rights. Arguably, as practised in Bountiful, polygamy harms women and children, which is not in the interest of society, and thus the anti-polygamy law should trump the minority religious rights. Finally, the majority in Hutterian Brethren is prepared to accept a very broad articulation of the pressing and substantial reason that the photo identity legislation minimizes the risk of identity theft. This was a harm that the Court accepted as limiting freedom of religion. Hence, it could be argued that the harm to equality rights of children and women inherent in the practice of polygamy in Bountiful will be accepted by the Court as a pressing and substantial objective sufficient to override their right to freedom of religion. In sum, if the risk of identity theft was considered sufficient harm to override freedom of religion, should not the risk of harm to women and children’s equality interests also be considered sufficient in the case of polygamy? Linda McKay-Panos, BEd, LLB, LLM is the Executive Director, and Brian Seaman, LLB is a Research Associate with the Alberta Civil Liberties Research Centre in Calgary, Alberta.

January/February 2010

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Special Report on Marriage

Prenups: A Plan for Failure or Simply Smart Planning? Doris Bonora Prenuptial agreements have a bad reputation. They come with the connotation that the couple is planning for divorce and therefore they set the wrong ambience for the wedding. Celebrities sign them, rappers rap about them and lots of jokes are made. Most people think of the prenuptial agreement as being stingy and controlling, so that in a divorce, there would be no division of property. However, often the converse is true. Prenuptial agreements can have very generous divisions of property but, the advantage to the prenuptial agreement is the certainty of the division and the great savings in legal fees because the rules of the game are known in advance. In this article I will focus on marriage but all of the concepts apply to cohabitation agreements for unmarried couples as well. People often speak of the high cost of divorce actions. The high cost has nothing to do with the actual divorce. In Canada, our no fault divorce laws make divorce quite perfunctory after a one-year long separation. The cost often comes in the division of the property. Thus, if the divorce is easy and the division of property is determined by a prenuptial agreement then the costs are greatly reduced. The stress, anxiety and emotion of a divorce are also greatly reduced.

January/February 2010

The Alberta Matrimonial Property Act provides that on separation, a person may take with them what they brought into the relationship and need only divide with their partner the increase in the value of their property. Some couples are generally happy with this division. The problem becomes determining the value of the property that the couple brought into the relationship. A prenuptial agreement has the advantage of including schedules of the property that each person brings to the relationship and thus there is certainty about that issue. If detailed records are not kept and the relationship lasts beyond seven years, the banks

People often speak of the high cost of divorce actions. The high cost has nothing to do with the actual divorce. In Canada, our no fault divorce laws make divorce quite perfunctory after a one-year long separation. The cost often comes in the division of the property.

A prenuptial agreement has the advantage of including schedules of the property that each person brings to the relationship and thus there is certainty about that issue. will not have records and thus it will be very difficult to re-create the net worth of the individuals at the time of the marriage. Much time, effort and legal and accounting fees will be spent trying to determine the net worth of the individuals at the time of the marriage. The prime candidates for prenups are: 1. couples entering into a second marriage who have children from prior relationships and who wish to make sure that their respective children will receive assets on the death of the parent; 2. couples in which one person has a business to protect, especially where there is a desire to pass that business on to the children of the business owner; 3. couples in which there is a disparity in the value of the assets owned by each person; and 4. couples in which at least one person is older and he or she may not be able to recover to provide for retirement if the assets are split. In each of these cases, the couples can be generous with each other on separation or divorce but still achieve the goal of protecting certain assets. Thus, the business owner will say that on separation or divorce, his or her spouse will not be able to claim any portion of the business nor any increase in the value of the business, but that personal assets can be equally split. Successful business owners often have substantial personal wealth and therefore the division of assets may still be generous even though the business interests are protected. Older persons may have saved prudently for retirement. If they had to divide their assets on a divorce, they might not be able to work long enough to recover those assets. Thus, they may wish to protect their RRSPs, RRIFs, pensions and investments but may be prepared to divide interests in their houses and life insurance policies. The ability to satisfy the goals of the couple with respect to the protection of assets and which assets will be divided is only limited by the couple’s imagination. Don’t think of prenups as bad news. Think of them as smart planning. We all buy fire insurance on our houses because that is smart planning. We do not expect our houses to burn down. We prepare the prenup in case of a divorce, not because we plan for divorce to happen.

Columns 37 Not-for-Profit Law Peter Broder Charity Salaries in Perspective.

39 Human Rights Law Linda McKay-Panos Hutterite Brethren, Driver’s Licences, and Charter, s. 1.

41 Criminal Law Deborah R. Hatch Pre-Sentence Custody

43 Employment Law Peter Bowal amd Thomas D. Brierton Jobs as Social Welfare Programs: The Case of H1N1

45 Law and Literature Robert Normey Garcia Marquez’s Undying Support for the Castro Regime

47 Online Law Jodi Lommer Olympics Law Online

Doris Bonora is a partner with the firm of Reynolds Mirth Richards and Farmer LLP and practises in the area of wills, estate planning, estate administration and estate litigation.

January/February 2010

Not-for-Profit Law Peter Broder

Charity Salaries in Perspective In early October, the departure of highprofile Toronto Hospital for Sick Children Foundation president Michael O’Mahoney occasioned yet another press article on charitable sector compensation. Although focusing on fundraisers, the Globe and Mail article cited salary figures of several presidents and C.E.O.s working for national charities. There is no doubt that the salaries of O’Mahoney, his successor, and his colleagues – often in the hundreds of thousands of dollars – provide good fodder for news stories. But, according to the National Survey of Nonprofit and Voluntary Organizations (NSNVO), charities with revenues of over $10 million make up just one percent of the sector. Even of those, very few have staff that can boast the “superstar” status bestowed on O’Mahoney by the newspaper’s headline writers. There is no denying that many institutional charities – universities, colleges, hospitals, and those groups synonymous with a disease or other cause (or the foundations affiliated with them) – are heavyweights in the charity world. They have traditionally enjoyed, or have developed, revenue streams that allow them

to escape the constraints on fundraising that smaller charities face. Organizations that generate large nonreceipted revenues from earned income, government transfers, or gaming aren’t hamstrung by the disbursement quota requirement that they immediately spend 80% of their donations on charitable programming. So, they can run big fundraising operations and pay big salaries. That also means that when things go amiss, they go amiss in a big way. There is a legitimate question about whether some of these institutional charities aren’t approaching the “too big to fail” threshold, and whether revenue models that rely heavily on an outsized fundraising infrastructure are prudent or sustainable. The recent recession has shown the precariousness of high reliance on discretionary giving. However, for editors and reporters, the issue is much more apt to be framed as: does he or she make too much? Perhaps more worrying is that the decidedly modest compensation often received by those working outside the limelight of major institutions, or delivering programming rather than raising dollars, is not deemed newsworthy. It ought to be.

Perhaps more worrying is that the decidedly modest compensation often received by those working outside the limelight of major institutions, or delivering programming rather than raising dollars, is not deemed newsworthy. It ought to be.

January/February 2010

Research both in Alberta and elsewhere in Canada has shown that many funders fail to adequately provide for overhead and other administrative costs when they contract with or make grants to charities. Effectively, this means that revenue from charitable giving cross-subsidizes initiatives that should be self-sustaining. Moreover, governments and other funders frequently enter into agreements for services where there is no provision for the organizational costs associated with either recruitment or severance after the funded project ends. That means that organizations have to absorb those costs. So, though a budget line in a project proposal may state a seemingly reasonable salary, at the end of the day it may overstate the amount a charity actually has available to pay project staff. Another often overlooked aspect of compensation in the charity sector is retirement benefits. The criticisms of underfunded or inadequate pension schemes in the private sector apply, if anything, even more widely and acutely in the charity sector. Currently, the Canada Revenue Agency (CRA) only requires disclosure on the T3010 annual filing of the salary ranges of a charity’s five highest earning full-time employees. The accuracy of these filings has not been systematically tested, but there is certainly potential for charities to avoid even the limited transparency available through this measure by classifying highly paid staff as part-time, or by treating staff as contractors rather than employees. Beyond CRA filings, some charities fall under legislation requiring disclosure of compensation for employees of publiclyfinanced bodies, and some are subject to the more detailed filings on salaries man-

dated under American law because they fundraise in or have other ties to the U.S. So, the press can get their hands on certain salaries. There have been frequent calls for more detailed CRA reporting of salary figures. But while there is undoubted merit in increased transparency to enable the public to determine the reasonableness of the compensation of senior charity executives, those salaries need to be seen in a broader context. That means a hard look at both the nature of the responsibilities of these individuals, given the mandate and scope of their charity’s work, and better consideration of the salary structure within the sector as a whole. Leaving aside the issue of high salaries, if we are to have a sector where people want to make a career, and a sector that attracts innovative and dynamic

Another often overlooked aspect of compensation in the charity sector is retirement benefits. The criticisms of underfunded or inadequate pension schemes in the private sector apply, if anything, even more widely and acutely in the charity sector.

individuals, the other inadequacies of the current model need to be addressed. One only need recall the scathing response to financial institution compensation practices in the wake of the 2008 economic meltdown to understand public attitudes in this area. So, getting the man or woman on the street to appreciate nuances beyond superstar salaries will not be an easy task.

But doing so, not providing material for journalistic potshots, should be the focus of any change to the regulatory regime. Peter Broder is Policy Analyst and General Counsel at The Muttart Foundation in Edmonton. The views expressed do not necessarily reflect those of the Foundation.

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January/February 2010

Human Rights Law Linda McKay-Panos

Hutterian Brethren, Driver’s Licences, and Charter s. 1 In a previous column (“Charter s. 1: A Balancing Act for the Court” 2007 32(1) LawNow), I discussed the challenges faced by the courts when seeking to determine whether legislation that offends a Charter right may nevertheless be saved by Charter s. 1. I used the 2007 case of Hutterian Brethren of Wilson Colony v. Alberta, 2007 ABCA, to illustrate the process the Alberta Court of Appeal followed. Recently, the Supreme Court of Canada dealt with the same issue and, in a narrow majority (four to three), ruled in a different direction from the one taken by the Alberta courts (Hutterian Brethren of Wilson Colony v. Alberta, 2009 SCC 37 ). Perhaps the narrowness of the majority indicates the challenges in applying Charter s. 1. In 2003, the Alberta government amended a regulation thereby eliminating the ability of the Registrar to issue drivers’ licences without photos. Thus, every person who seeks to obtain or renew a driver’s licence must have his or her photo taken. The Hutterian Brethren of the Wilson Colony believe it is a sin to have their photograph willingly taken. They argued that the regulation violated the right to their freedom of religion under Charter s. 2(a) and their right to equality under Charter s. 15(1). In the lower courts,

it was generally acknowledged that the claimant’s Charter rights were violated; the issue was whether the regulation could be saved by Charter s. 1. In both the Alberta Court of Queen’s Bench and the Court of Appeal, the government was not successful in showing that an absolute photo requirement was demonstrably justified in a free and democratic society. The majority of the Supreme Court of Canada disagreed. Again, it was generally acknowledged that the claimant’s rights under Charter s. 2(a) (freedom of religion) were violated; the issue was whether the regulation could be saved by Charter s. 1. Section 1 of the Charter provides “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The basic framework provided for determining whether a law may be saved under Charter s. 1 is found in the1986 Supreme Court of Canada case of R. v. Oakes: • the infringing measure has an objective of sufficient importance to warrant overriding a Charter right; and • the means chosen are proportional to the objective.

Chief Justice McLachlin was convinced that Alberta’s evidence demonstrated ways in which an exemption from the photo requirements would increase the vulnerability of the licensing system and the risk of identity-related fraud.

January/February 2010

In order to determine whether the means are proportional to the objective, the court must ensure that • the means chosen are rationally connected to the objective; • the means impair the right as little as possible; and • there is proportionality between the effects of the infringing measure and the objective. Chief Justice McLachlin (with Justices Binnie, Deschamps, and Rothstein concurring) concluded that the evidence provided by the Province of Alberta established that a universal photo requirement was justified under Charter s. 1. The goal of setting up a system to minimize the risk of identity theft associated with driver’s licences is pressing and substantial. The universal photo requirement is connected to the goal and does not limit freedom of religion more than required to achieve the goal. Finally, the negative impact on the freedom of religion of the Hutterian Brethren members who wish to obtain driver’s licences does not outweigh the benefits associated with the universal photo requirement. First, the Chief Justice held that the limit was prescribed by law. Next, she held that maintaining the integrity of the driver’s licensing system in a way that minimizes the risk of identity theft is clearly a goal of pressing and substantial importance capable of justifying limits on rights. She noted that a collateral effect of a licensing system is that the licences become generalized identification documentation with the attendant risk that they might be misused for identity theft. In addressing the proportionality of the limit, she examined first whether the limit was rationally connected to the purpose. Chief Justice McLachlin was convinced that Alberta’s evidence demonstrated ways in which an exemption from the photo requirements would increase the vulnerability of the licensing system and the risk of identity-related fraud. She noted that the suggestion of stamping “not to be used for identification purposes” on exempt licences would not assist the government in choosing the least drastic means of achieving its objective. The notation might prevent a person from using the licence as a “breeder document” (a document which is used for identification to obtain other iden-

tification documents) but would not prevent a person from assuming the identity of the licence holder and producing a fake document which could not be checked in the photo bank. The Chief Justice weighed the proportionality of the law’s effect by asking, “When one balances the harm done to the claimants’ religious freedom against the benefits associated with the universal photo requirement for driver’s licences, is the limit on the right proportionate in effect to the public benefit conferred by the limit?” She decided that it was impossible to conclude that Colony members have been deprived of a meaningful choice to follow the edicts of their religion. The law did not compel them to take a photo in contravention of their religious beliefs. Rather, it provided that a person who wants a driver’s licence must permit a photo to be taken for the identification bank. Driving automobiles is a privilege and not a right. Thus, the impact of the universal photo requirement is that Colony members will be obliged to make alternative arrangements for transport. Finally, Chief Justice McLachlin concluded that after balancing the beneficial and detrimental effects of the law, the impact of the limit on religious practice is proportionate. In addition, the majority found that Charter s. 15(1) was not infringed. In dissent, Justice Abella (concurred with by Justice Fish) indicated that the harm to the Hutterites, in the absence of an exemption from the mandatory photo requirement, was dramatic and severely compromised the autonomous character of their religious community, while the benefits to the province were, at best, marginal. Over 700,000 Albertans do not have drivers’

While Justice Abella agreed with the majority that the objective was an important one and the rational connection analysis was satisfied, she held that the serious harm caused by the infringing measure outweighed the benefits that the province gained from its imposition on the Hutterites.

licences and are therefore not in the province’s facial recognition database. While Justice Abella agreed with the majority that the objective was an important one and the rational connection analysis was satisfied, she held that the serious harm caused by the infringing measure outweighed the benefits that the province gained from its imposition on the Hutterites. She also held, with regard to proportionality, that the government had not demonstrated that the beneficial effects were “anything more than a web of speculation”. Choosing not to have a driver’s licence or having a picture taken was not a meaningful choice for Hutterites. Further, to suggest that the harmful effects of the policy were minor because Colony members could simply arrange for third-party transportation failed to appreciate the significance of self-sufficiency to the autonomous integrity of the religious community. The mandatory photo requirement was a “form of indirect coercion that places the Wilson Colony members in the untenable position of having to choose between compliance with their religious beliefs or giving up the self-sufficiency of their community.”

Also in dissent, Justice LeBel discussed the Oakes test at length. He agreed with the reasons of Justice Abella. He noted that while religious rights are not unlimited and may have to be restricted in the context of broader social values, they are fundamental rights protected by the Constitution. He agreed that the province had failed to demonstrate that the photo regulation was a proportionate response to the societal problem of identity theft. He noted that the objective of minimizing identity theft was hypothetical and that a small number of people carrying drivers’ licences without photos would not significantly compromise the safety of Albertans. This case clearly demonstrates the complexity of the process of applying the test set out in Oakes for applying Charter s. 1. On a broader note, it does seem to indicate, at least when the government seeks to limit a Charter right, that it may be able to provide “hypothetical” evidence of harm sufficient to justify limiting that right. Linda McKay-Panos, BEd, LLB, LLM is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.

January/February 2010

Criminal Law Deborah R. Hatch

Pre-Sentence Custody As this article is written, Parliament is considering legislation that deals with what credit ought to be given to prisoners who are being sentenced for the time which they have spent in pre-trial or pre-sentence custody. Bill C-25, the ironically named Truth in Sentencing Act, is premised upon what seems a sensible and straightforward idea: for each day an accused person is sentenced to serve in custody, one day in custody shall be served. Proponents of the legislation criticize the fact that presently, judges have discretion as to what credit is given for time spent in custody at remand facilities. A judge can say that an offenderâ&#x20AC;&#x2122;s personal circumstances and the circumstances of the offence for which he is being sentenced justify, for example, a one-year sentence. The judge can then lawfully say that since the accused spent three months in pre-sentence custody, he may be given credit on a two-for-one basis for that time, and he will therefore receive six months credit. He will thus be left with six months to serve in jail.

Many see this situation as unjust and view such a sentence as letting the offender off easily. These views are understandable, as the public is not generally aware of the specific provisions of corrections legislation nor of the conditions at remand facilities throughout Canada. The sentence that an individual will, in fact, serve in custody once sentenced is guided by the Corrections and Conditional Release Act. That Act provides that offenders will typically be released on parole after one-third to two-thirds of their sentences. Time spent in pre-sentence custody does not count towards parole eligibility; hence the term â&#x20AC;&#x153;dead timeâ&#x20AC;?. That is, if an individual received a custodial sentence (assuming, of course, he was found guilty), he would immediately begin serving his sentence, all of which would count towards the date on which he would be paroled. An individual who spends, for example, a year in pre-sentence custody at a remand facility and is then sentenced, will receive no credit towards parole for the time spent in

a remand facility. Consider the chart I have made which provides examples of sentences and credit received by offenders. Bill C-25 will limit the credit which a judge can give to an offender for time served in presentence custody to one for one. In very rare situations, it will permit a judge to grant 1.5 for one credit. This legislation completely ignores the fact that conditions in pre-trial detention centres are dramatically worse than those in facilities where sentenced offenders serve their sentences. Bill C-25 is based on a conception of the two types of facilities as parallel. This conception is incorrect. Prisoners in remand facilities are kept in much more crowded conditions than sentenced prisoners. They are often triplebunked, and individuals must frequently sleep on the floor. The overcrowded conditions have known effects on the mental and physical health of many inmates. Access to health care tends to be poorer in these facilities than in prisons. In addition, prisoners in remand facilities have almost no opportunities to engage in rehabilitative programs, to pursue education, to exercise, or to do other things which might benefit them and the public. Remember that these inmates will return to the public once they have served their sentences. Further, it should not be forgotten that every year, and in every jurisdiction in Canada, inmates who have served time at remand facilities are acquitted and will thus have been punished, not for any offence which they have been found guilty of but instead, for other reasons (such as failing to

Sample Sentence

Time Before Release

End Result

6 months

4 months

1.5 for 1

This legislation will have a much more significant effect on Aboriginal

Provincial Sentence

inmates and the mentally ill as well

Federal Offender Released on Statutory Release Date

3 years

2 years

1.5 for 1

Federal Offender Released on Full Parole Eligibility Date

3 years

1 year

3 for 1

Federal Offender Released on Accelerated Parole Date (Certain Offences)

3 years

6 months

6 for 1

Innocent Person Denied Bail

0 days

6 months

0 for 1

as those in northern (especially rural) communities. It will also have a disproportionately severe impact on the poor.

January/February 2010

appear in court in the past or having committed crimes in the past with respect to which they have already served their sentences). What Bill C-25 will do, if passed, is not only improperly reduce pre-trial credit to a number but, in addition, reduce it to the wrong number. It will tie the hands of judges, leaving them with virtually no discretion to impose the sentence which they see as fair, just, and appropriate considering the offender’s circumstances. Those who have called for legislation such as Bill C-25 have claimed that courts frequently give credit to offenders on a three-for-one basis. This claim, however, is simplistic and inaccurate. In Alberta, three-for-one credit is almost never granted. On the rare occasions where it has been granted, this has been on the basis that the offender, due to very unique and unfortunate circumstances, has endured harsh conditions beyond those which are supposed to be experienced in a remand facility.

This legislation completely ignores the fact that conditions in pre-trial detention centres are dramatically worse than those in facilities where sentenced offenders serve their sentences. Bill C-25 is based on a conception of the two types of facilities as parallel. This conception is incorrect.

It is very significant that in Alberta, Crown prosecutors routinely join with defence counsel in suggesting to judges that credit ought to be granted to offenders for their time at remand facilities on a two-for-one basis. This is because Crown prosecutors, as well as defence lawyers, recognize the very compelling reasons for granting credit for harsh pre-sentence remand custody. This legislation will have a much more significant effect on Aboriginal inmates and the mentally ill as well as those in northern

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(especially rural) communities. It will also have a disproportionately severe impact on the poor. It is not uncommon to see individuals (frequently Aboriginal individuals) who remain in remand centres for months even though they have been granted bail. One of the conditions of their bail is that they post a small amount of cash, often as little as $100 or $200. They are, however, unable to raise that amount of cash to secure their release, so they are forced to remain in remand facilities. Others who have resources or who have families who do not live in poverty will not suffer in this way. Bill C-25 will make no differentiation between this type of person and one who is denied bail outright by a justice of the peace or a judge. In addition to these problems, this legislation will induce inmates who may be innocent to plead guilty. Remand prisoners are already desperate to get out of remand centres due to the deplorable conditions. Some will plead guilty, when they are actually innocent, just to escape to a serving institution where parole provisions will apply and where the conditions are much better. This threatens the integrity of our criminal justice system. A wrongful conviction is a tragedy no matter what the cause. The Government of Canada’s own statistical studies have shown that harsh conditions at pre-trial detention centres do induce guilty pleas. It is for these reasons that this type of legislation should be considered carefully. It may affect us in ways we have not bargained for. Deborah R. Hatch is a lawyer with the firm of Gunn Prithipaul & Hatch in Edmonton, Alberta.

January/February 2010

1. Human Rights and Disability

es Employe only!

Employment Law Peter Bowal and Thomas D. Brierton

Jobs as Social Welfare Programs: The Case of H1N1 There were times when everybody in the house has the flu. You’re cleaning up vomit and it’s 2 in the morning, and you’re wishing there was somebody else there to help you. — Meg Tilly, American actress

The Job as Ultimate Social Welfare Program A job has become the most comprehensive modern social welfare program of our time. For decades, government has obliged employers to ensure the financial, social, and physical well-being of Canadians. This overwhelming transfer of legal obligation to the employer is found in the regulation of human rights, dismissals, unions and collective action, disability, minimum wages, foreign workers, employment insurance, compensation for worker-related injuries, maximum hours of work and minimum rest periods, payroll taxes, leave for holidays, pregnancy, parenthood, family emergencies and annual vacations, safety, pensions, freedom from harassers and bullies, day care, and the concept of vicarious liability, to name a few examples.

When the employment relationship is considered in conjunction with other civil obligations in tort, equity, and contract, and a liberal array of volunteer benefits such as extended health, supplementary insurance, educational upgrading, and employee assistance programs, most employees and their families have their needs covered. Employer-provided social welfare aspects of a job may be legally mandated or offered voluntarily in a competitive market for workers. They come in the form of economic benefits and less pecuniary policies. It should be clear that employer benefits and policies also serve the best long-term interests of the employer by recruiting and retaining the human talent essential to achieve the employer’s profit objectives. One of the best illustrations of the employer’s comprehensive social welfare obligations is found in the current H1N1 flu pandemic. There are four statutory domains of employee protection in the H1N1 context. These provide a broad social welfare model for employers to use in caring for their employees.

One of the best illustrations of the employer’s comprehensive social welfare obligations is found in the current H1N1 flu pandemic. There are four statutory domains of employee protection in the H1N1 context.

January/February 2010

Disability is one of the prohibited grounds of discrimination in Canadian human rights legislation. Since disability is not a fault-based condition, employers must reasonably accommodate the disabled worker in instances where the disability does not affect job performance. It is not clear across Canada whether short-term illness comprises a disability under human rights legislation. In most cases, symptoms of the H1N1 flu endure only a few days – a time period which may be readily covered by most benefits plans. The employer and flu-sick employee will agree that one should not attend work during the illness. Hence, the issue of reasonable accommodation is unlikely to arise. The employer would have no basis to dismiss an employee for this short period of non-culpable absenteeism.

2. Workers Compensation Often the H1N1 influenza will spread through the workplace or as a result of the employee performing the job in other locations. This may entitle affected employees to compensation through workers compensation legislation if the work-related illness continues for an extended, unremunerated period.

3. Employment Standards Employment standards legislation grants various types of job leave to employees if they or their family members take ill. Some provinces require one or more of compassionate care leave, family responsibility leave, sick leave, or personal emergency leave to be given to employees. Others stipulate leave for government-declared emergencies. Each of these types of leave is defined and regulated. The H1N1 influenza outbreak pandemic could be covered by this legislation.

4. Occupational Health and Safety Finally, occupational health and safety legislation compels employers to ensure their workplaces are safe and to take further reasonable measures to protect employee health and safety. Health and safety programs associated with the H1N1 pandemic may be considerable as there are several well-known protocols designed to contain

this virus. At the minimum, most employers should develop and implement policies designed to contain the spread of this virus such as education, vaccination, and hand sanitation.

At the minimum, most employers should develop and implement policies designed to contain the spread of this virus such as education, vaccination, and hand sanitation.

Conclusion The above four categories of employer obligation may all be invoked to address the H1N1 flu outbreak. Canadian governments have teams monitoring this flu and might still enact other legislation to specifically address it. As with other types of legal obligation, including environmental protection, data privacy, and prevention of sexual harassment, employers are advised to establish and widely circulate an H1N1 Influenza Response Policy. This would prepare the organization to not only meet its legal obligations minimally but to continue to operate during the outbreak. The policy, or plan, should create a co-ordination team to educate employees on the H1N1 virus, and to develop risk-reduction measures and

procedures for employees to follow if they experience H1N1 symptoms. The organization must identify alternative work and communication arrangements, such as telecommuting, as well as dealing with other stakeholders up and down the supply chain. Corporate operations must also be maintained, so backup systems and worksites ought to be considered and tested. Canadians do not have much experience in managing pandemics. In many ways, the workplace is the laboratory model for dealing with such threats to society. What we do know is that the broad statu-

tory contours of human rights, workersâ&#x20AC;&#x2122; compensation, employment standards, and occupational health and safety law create a framework of employee protection that addresses this problem. Ultimately, this demonstrates how oneâ&#x20AC;&#x2122;s job, robustly regulated by the law, is one of the most powerful social welfare programs ever devised. Peter Bowal is a Professor of Law with the Haskayne School of Business at the University of Calgary. Thomas D. Brierton is an Associate Professor with the Eberhardt School of Business at the University of the Pacific in Stockton, California.

January/February 2010

Law and Literature Robert Normey

Garcia Marquez’s Undying Support for the Castro Regime Gabriel Garcia Marquez, the Colombian writer, is one of our greatest living authors. His novels One Hundred Years of Solitude, The Autumn of the Patriarch, and Love in the Time of Cholera will live forever. I have been a huge fan of his work since first encountering it in 1975. I thus read with great interest the first major English language biography of this literary magician by Gerald Martin entitled Gabriel Garcia Marquez: A Life. It is a fine biography and recommended for all those interested in learning about Garcia Marquez’s heroic struggle over many difficult, impoverished years to develop his talent and become a first-class novelist. Martin’s biography touches on the writer’s support for the Castro regime in Cuba and the extremely close friendship between Garcia Marquez and the long-time Cuban dictator. He offers some insights into the motivation for Garcia Marquez’s fascination with Fidel. I myself find the ongoing support that the Colombian novelist has provided to the Castro regime and his considerable involvement in Cuban affairs deeply troubling and would like to delve into it. I am aided in this endeavour by Angel Esteban and Stephanie Panichelli’s Fidel & Gabo: A Portrait of a Legendary Friendship Between Fidel Castro and Gabriel Garcia Marquez. It surveys the interviews Garcia Marquez has given over the years about his growing friendship with the charismatic dictator. It is not a particularly penetrating analysis of the relationship.

I would like to have had a deeper consideration of the human rights abuses by the Castro regime, of the censorship and denial of due process and the right to a fair trial, and what precisely Garcia Marquez has had to say about these abuses, both to the world at large, and to Castro and his cronies. My initial reaction of disdain for Garcia Marquez’s friendship and support has upon reflection given way to a more nuanced approach. Yes, he should speak forcefully and publicly in favour of the protection of human rights in Cuba (and elsewhere). He can and should be criticized for not doing so. That being said, it must also be noted that his dream of seeing a democratic socialist government in one or preferably many Latin American nations has not died. Further, his dream of a Latin America liberated from and secure against the U.S.’s high-handed political, military, and covert intervention in the lives of Latin Americans and its economic dominance has caused him to remain a champion of Cuba. It is probably more useful to do our best to understand Garcia Marquez’s position than simply to condemn it. There may, indeed, be a place for dialogue with Cuba rather than placing it in a kind of quarantine. Certainly Canada’s former Prime Minister, Pierre Trudeau, was a strong advocate of dialogue at the political level. He paid a famous visit to Cuba in 1976, recounted in

My initial reaction of disdain for Garcia Marquez’s friendship and support has upon reflection given way to a more nuanced approach.

January/February 2010

the absorbing book Three Nights in Havana by Robert Wright. Trudeau considered it more advantageous to the West to maintain relations with Cuba than to see it settle exclusively in the Soviet orbit. In considering this issue, it is also important to remember the extreme pressures the Castro regime faced from the U.S.: a full economic blockade, numerous assassination attempts, the failed Bay of Pigs invasion, and other efforts to fund and arm expatriates opposed to the regime with the intent of toppling it. These are actions which the U.S. would surely condemn if they were carried out by any other country. The famous fictional account of the United Fruit Company (UFC) massacre of 1928 in Colombia is a helpful starting point for our understanding of the reasons why Garcia Marquez would support the Castro regime from the outset and later become Fidel’s best friend. The account is a pivotal moment in One Hundred Years of Solitude. The novel is a family saga that narrates the story of four generations of the Buendias. The patriarch of the family arrives at a place called Macondo late in the nineteenth century and the reader “begins to experience a hundred years of Colombian history with a mixture of perplexity, obduracy, obsession and black humor.” (Gerald Martin) Jose Arcadio Segundo plays a major role in the unrest leading to the massacre. He and other union leaders protest unfair labour conditions on banana plantations by organizing a strike against the monopolistic company: the UFC. The workers successfully demand that they not be obliged to cut and load bananas on Sundays. More protests and demonstrations are organized and secret meetings are conducted, relating to such conditions as the lack of sanitary facilities and the fact that workers are paid in scrip rather than real money. The peaceful demonstrations are met with harshness from the authorities. Union leaders are rounded up and imprisoned. They are set free after three months, ironically, only because of the fact that the government and the UFC could not reach an agreement as to who should feed them. The matter ends up in the higher courts of Colombia but “sleight-of-hand lawyers” are able to establish that the

workers’ demands lacked all validity, given that UFC did not have, never had had, and never would have any workers in its service because they were all hired on a temporary and occasional basis. A great strike then breaks out leading to atrocious acts of violence by the army, described in chilling terms by Garcia Marquez. As the people of the town of Macondo gather at the station, the army sets up machine guns. A decree is read out giving the crowd five minutes to disperse. When they are unable to do so, a wave of bullets hits them, killing 3,000 people. Jose Arcadio Segundo falls with his face bathed in blood, but miraculously comes to, riding on an “endless and silent train”. He is able to hide out and escape further retribution from the authorities. While the figure of 3,000 deaths is simply the author’s estimate, the events described in the novel have a firm basis in fact. One can certainly appreciate the author’s fury at the tight control and oppression of ordinary Colombians by the powerful Americanowned banana company. The American entrepreneur Minor C. Keith held what has been described as a “pirate’s charter”. UFC owned the plantations and railways and so effectively controlled the towns in the banana zone. It also controlled the local police, politicians, and press. When Garcia Marquez learned of Castro’s overthrow of the vicious, hated tyrant Battista in 1959, he no doubt rejoiced. He was impressed by the fact that Castro, in subsequent years, forged initiatives designed to aid the poor in Cuba including universal free education and subsidized medical care. Further, Castro took on and defeated a succession of U.S. presidents engaged in numerous efforts to overthrow the Castro regime. This was part of a number of interventions by the U.S. government and the C.I.A. in Latin American affairs, involving,

It is one thing to display respect for the ability to resist American domination; however, it is another to continue to support Castro and to refrain from speaking forcefully against the regime’s numerous well-documented human rights abuses. A writer surely has an obligation to promote human rights particularly in a country he perceives to be a beacon of light for other countries in Latin America.

notoriously, the overthrow of the democratically elected government of Guatemala in 1954 and the overthrow of the democratically elected government of Salvador Allende in Chile in 1973. Small wonder that Garcia Marquez would cheer on the efforts of a Latin American leader to take measures to avoid capitulation to the American juggernaut. It is one thing to display respect for the ability to resist American domination; however, it is another to continue to support Castro and to refrain from speaking forcefully against the regime’s numerous well-documented human rights abuses. A writer surely has an obligation to promote human rights, particularly in a country he perceives to be a beacon of light for other countries in Latin America. Garcia Marquez’s approach can be contrasted with that of his one-time friend, the Peruvian writer Mario Vargas Llosa. Vargas Llosa and other supporters of the Cuban Revolution wrote critical open letters to Castro over the treatment of the Cuban poet Heberto Padilla, whose 1968 book of poetry contained lines critical of censorship. A petition sent by Vargas Llosa and others received a harsh response from Castro leading them to break with his government. That was surely the most admirable approach in the circumstances.

Garcia Marquez, on the other hand, did not sign the petition (although his friends mistakenly signed on his behalf) and refused to sign a later open letter. A final word in partial defence of the Nobel-prize-winning writer is that, although he indeed should have publicly challenged Castro and his political allies to live up to the original ideals of the revolution and to international human rights norms, there is little doubt that he has tried to do what he can behind the scenes. He has spoken to Castro and others in the hierarchy and has advocated for the better treatment and release of a number of writers and other prisoners. He has estimated that he has successfully secured the release and the permitted exile of more than two thousand prisoners. He has stated that he knows how far he can go with Fidel. His relationship with Castro and the largely uncritical support of the regime in Cuba is deeply disturbing. However, I think we can work toward an understanding, in part, of Garcia Marquez’s motivation. Further, it must be emphasized that a large number of former prisoners have the writer’s efforts to thank for their freedom and permitted exile. Robert Normey is a lawyer with the Constitutional and Aboriginal Law Branch of Alberta Justice in Edmonton, Alberta.

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Online Law Jodi Lommer

The Rules of the Game The 2010 Vancouver Olympics will provide an opportunity to showcase human strength and achievement while acting as a reminder of our vulnerability. The imminence of the Olympics also encourages consideration of some of the legal issues that surround contemporary sports.

http://archives.cbc.ca/sports/drugs_ sports/topics/1409/ The CBC did an interesting multimedia series entitled “Going for Dope: Canada and Drugs in Sport”, addressing the history of Canada’s athletic drug use back to the 1983 Pan Am Games in Caracas, Venezuela. In fact, doping was such a major issue in the world of Olympic (and professional) sports that a World Anti-Doping Agency was formed in 1999.

www.wada-ama.org/en/ The World Anti-doping Agency (WADA) website has a variety of available information concerning the practice of doping. WADA, funded by the five Olympic regions (Africa, Americas, Asia, Europe and Oceania) has created a World Anti-doping Code (WADC).

www.wada-ama.org/en/ World-Anti-Doping-Program/Sportsand-Anti-Doping-Organizations/ International-Standards/ According to the WADA website, the Code works to bring harmonization among anti-doping organizations in conjunction with five International Standards: • the Prohibited List, • testing, • laboratories, • therapeutic use exemptions, and • protection of privacy and personal information.

January/February 2010

www.wada- ama.org/Documents/World_ Anti-Doping_Program/WADP-IS-PPPI/ WADA_IS_PPPI_2009_EN.pdf New methods of doping and their subsequent detection are also raising issues of compliance with privacy, data protection and human rights legislation. The purpose of the International Standard for the Protection of Privacy and Personal Information (ISPPPI) is to ensure that all parties involved in antidoping in sport adhere to a set of minimum privacy protections when collecting and using athlete personal information, such as information relating to whereabouts, doping controls and Therapeutic Use Exemptions.

www.playthegame.org/news/detailed/ doping-and-legal-rights-4513.html In a news release from playthegame. org, Anti-doping Denmark Chairman Jens Evald, discusses the “whereabouts sanction”, whereby an athlete must be available for one full hour, seven days a week for no-notice drug testing. Questions have arisen about the arbitrary enforcement of this sanction.

cant security challenges. According to their website, the Office of the Privacy Commissioner of Canada, in conjunction with the Office of the Information and Privacy Commissioner of British Columbia and the Vancouver Integrated Security Unit (VISU), have been working to ensure that surveillance and other security measures do not unduly infringe on the rights of participants, workers, visitors or nearby residents. The Office of the Privacy Commissioner of Canada has published a fact sheet detailing proposed security measures and the principles that underpin them, as informed by the Privacy Act, B.C.’s FIPPA, PIPA and a series of decisions handed down in recent years by the Supreme Court of Canada.

www.bccla.org/temp/olympicmain.html The British Columbia Civil Liberties Society is trying to promote free speech and citizens’ rights in the face of the extremely stringent security measures at the 2010 Olympics. This watchdog organization states that the 2010 Olympics must demonstrate Canada’s tolerant, diverse and unique democratic society and the values that guide us, as protected by the Canadian Charter of Rights and Freedoms. The website has identified and listed some anti-free speech activities by the Vancouver Olympics Organizing Committee (VANOC), the Vancouver Integrated Security Unit (VISU) and other government and quasi-government agencies.

www.sportlaw.ca/writings.php www.crdsc-sdrcc.ca/ In 2003 the federal Act to Promote Physical Activity and Sport was enacted, resulting in the establishment of an independent organization to provide a national alternative dispute resolution service for sports organizations. The Sport Dispute Resolution Centre of Canada (SDRCC) is dedicated to providing dispute resolution services, as well as arbitration and mediation when required, throughout the nation in both official languages.

www.priv.gc.ca/resource/olympics/ index_e.cfm As the first major international event held in Canada since 9/11, the 2010 Olympics in Vancouver will present some signifi-

The Centre for Sport and Law is a Canadian consulting company offering services and practical resources on governance, risk management and legal issues. Its archived publications address issues such as gender, equity and discrimination, homophobia, intellectual property and privacy, procedural fairness, and violence in professional sports. It often produces publications in collaboration with other government and non-profit organizations such as the Canadian Association for the Advancement of Women in Sport and Physical Activity (CAAWS). Jodi Lommer is a practicum student from the School of Library and Information Studies at the University of Alberta in Edmonton, Alberta.

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