RSS FeedPrisoner’s copyright
Inmate rights are a lost cause for an average politician. If anything, legislators are more likely to push for harsher sentences, more hurdles to parole, and less money for rehabilitation. Of course, history knows prisoners who survived jail through spirituality or by creating works of arts. But one Canadian court case shows that the state may deprive prisoners even of their rights to intellectual property created in the slammer.
John Hawley was sentenced to ten years in prison for armed robberies committed in his mid-twenties. After he was released on parole, John started a “successful commercial art and design studio in Toronto” (Hawley v. Canada, [1990] F.C.J. No. 337). When he served a part of his sentence in Frontenac Institution, a minimum security prison, he created a large painting entitled “Mount Whymper.” This work of art became the subject of a lawsuit he brought against the federal government claiming copyright in “Mount Whymper.”
The Federal Court denied his claim. It found that John was an employee of the Crown at all material times. The judge looked at some of the traditional factors showing supervision and control of John’s work by the prison authorities. He found that John had a work supervisor and that he painted as part of his prison employment. Section 13(3) of the Copyright Act is unambiguous in denying an otherwise strong protection of the creator in cases of works produced in the course of employment. The employer is the IP owner, period.
But was John really a federal employee? According to the court, if you’re in prison, you are, at least for the purposes of IP ownership. It ultimately doesn’t matter that your employment is forced and that your spare time is artificially limited and controlled. To quote the judge: “Frontenac Institution policies, as found in similar institutions, provide only circumscribed conditions under which an inmate can profit or gain from his own labours exerted during leisure hours.” It looks like the flip side of prison rehabilitation is coerced federal employment and consequent government ownership of any works of art created by the inmate.
Oscar Wilde wrote De Profundis in gaol. Aleksandr Solzhenitsyn composed poems in the Gulag. If they did it in Canadian correctional institutions, would our federal government claim copyright in their works too?
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The Canadian census debate—a background
On June 26, 2010, Canada Gazette published an Order in Council dated June 17, 2010. The order contained questions for the 2011 Canadian census. The short document that would normally be of interest only to statisticians caused a national debate—not because of what it contained, but because of what it lacked. 53 detailed questions sent to 20% of the population in the past were not in the government’s order. Only seven or so questions previously put on the short form will be sent to Canadians next year.
The Canadian government runs a census of the population every fives years on the authority of the federal Statistics Act (s. 19(1)). Under this statute, it is the job specifically of Statistics Canada to “take the census of population of Canada” (s. 3(c)). The Statistics Act gives the federal cabinet the power and discretion to appoint and remove the Chief Statistician of Canada (s. 4(1)). He and his office are not independent. The Chief Statistician must carry out his duties “under the direction” of the designated minister, which is currently Minister of Industry Tony Clement. Section 7 of the Act empowers the minister to set “rules, instructions, schedules and forms” for Statistics Canada, including for taking a census. Section 21(1) requires the federal cabinet to prescribe census questions by order in council. That is exactly what the cabinet did on June 17 causing the Statistical Society of Canada to criticize the scrapping of the long form.
The Act also empowers the minister to authorize voluntary surveys (s. 8). The Minister of Industry apparently used this power to introduce the voluntary National Household Survey to be taken at the same time as the census. According to Statistics Canada, the Survey will contain questions from the scrapped long census form, but precise questions are not yet available.
Answering statistical questions asked on the authority of the Act is mandatory (s. 31) unless they are specifically voluntary under s. 8. Not answering, lying, or not filling out a form are summary offences punishable by a fine of up to $500 or up to three months in jail. Census questions are always mandatory under the Statistics Act, regardless of any additional voluntary surveys the minister may initiate (s. 8). The minister cannot make the census voluntary, but he can manipulate the number of questions. The Act does not require the census to contain more than one question. Presumably, zero questions would make the census impossible and would therefore be unlawful.
Background documents
- Statistics Act
- The 2011 census order in council (includes the census form)
- The letter from the Statistical Society of Canada to Minister Clement (July 9, 2010) [pdf]
- Minister Clement’s statement on 2011 census (July 13, 2010)
- The 2006 census long form [pdf]
- The 2006 census short form [pdf]
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Humans only
If you read Arthur C. Clarke’s 2001: A Space Odyssey or saw the film, you must know who Hal is. Good. Keep that in mind while reading this. So… South Korea “deploys robots to detect and kill intruders.” I don’t want to be a scaremonger by just waving Hal in your face. Let me give you two reasons why robocops, or battle robots, or judge robots for that matter are bad from the legal standpoint.
First, robots follow programs that cannot predict all real-life possibilities. Robots lack that uniquely human ability of discretion. The best a machine can do to emulate discretion is to generate a random number. A grenade-launching machine exercising discretion would be like you loading one round in a revolver, spinning the cylinder, and pulling the trigger. Yes, it is called the Russian roulette. Especially, if you point the gun at your own head or at an “intruder.”
Second, a robot is not accountable. It doesn’t care if you appeal and have its decision overturned. If the reviewing body sends the case to a human for reconsideration why use the machine in the first place? And sometimes, the case will be moot, especially if the robot’s decision involved using live fire.
Law assumes human actors. Our entire legal system and tradition is based on this premise. Law doesn’t micromanage because it routinely delegates to human discretion. Sometimes it doesn’t strike the right balance—as with the law of street protest in Canada, but I’ll go for unsophisticated humans in uniforms over armed robots any day. Human discretion rests on a thick layer of experience, learning, feelings, values, and responsibility. If the state is to make decisions affecting our fundamental rights and freedoms, only its human agents should have this power. No robocops, please.
(Post sponsored by AdviceScene)
Supremacy of God and the Canadian Charter
Did you know that the “supremacy of God” is Canada’s founding principle? Read the Canadian constitution, if you don’t believe me. This is the preamble to the Canadian Charter of Rights and Freedoms: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law …” Recently, a Quebec Superior Court Judge Gérard Dugré relied on these words to stop the Quebec government from blocking one private school’s religious curriculum. This caused secular activists to call for removing the reference to God from our Charter.
Secular Canadians took offence. To them, Judge Dugré’s novel use of the preamble appears to make non-religious Canadians second-class citizens. His ruling may also look like an attempt to cut the ancient Gordian Knot of whether God exists in one judicial stroke. Of course, this cannot be the meaning of the preamble to the Charter. But the words about God do not have to be empty rhetoric ignored by the courts either. A reasonable interpretation of the preamble treats “God” as a power that is superior to the state and that have endowed Canadians with rights and freedoms secure from the state.
I do not know if judge Dugré’s decision is correct. Nor am I trying to answer this question here. But regardless of his ruling, there is a reasonable interpretation of the entire preamble to the Charter.
First of all, the purpose of the Charter is to protect rights and freedoms of the people against the government. This principle should imbue every interpretation of this constitutional document.
One of the fundamental methods of testing legality is tracing claimed powers and freedoms to their source. Many state agents’ powers come from or are allowed by the sovereign—the federal parliament or provincial legislatures. Police powers, for example, come from statute or are allowed by statute because they pre-existed legislative intervention. No state power can exist without parliamentary consent or an explicit constitutional grant. Even “Crown prerogatives” such as international relations powers exist only until legislatures wish to withdraw them.
But people are not agents or creatures of the state. We pre-date the state.
To reserve some freedoms to the people, to protect them from the overarching sovereign, and to ensure the legality of freedoms, you need a source other than the sovereign itself. Otherwise, the sovereign would be free to take freedoms back from the people. This source cannot be the state, it cannot be a person, and it cannot be a corporation. The humanity have always imagined a source of power and freedom completely independent of the state. It’s been called different names but a common one in English is God. Why not? It’s good enough to symbolize the idea that fundamental human rights and freedoms are not a gift from the sovereign. We have them by birth or naturalization, or symbolically as a gift from “God.”
Second, to emphasize the idea that the state and our legislative sovereigns cannot expropriate the independent rights and freedoms of the people, a concept of supremacy is necessary. Not only is the source of our freedoms and rights independent from the state, it is also supreme to the state. This concept leaves not a shred of doubt about any ability of the government to repossess our freedoms.
For these two reasons, “Canada is founded upon principles that recognize the supremacy of God.” It is to protect our freedoms and rights from state intrusion, which is exactly the purpose of the Charter. The rule-of-law part is equally critical, because unless there is an institution that deeply believes in these principles and holds the state in check, the words alone are not worth much. Thank God for the independent judiciary and the independent legal profession. Yes, essentially: thank God for lawyers.
According to the Black’s Law Dictionary (8th ed.), a preamble may help interpreting its enclosing document. The dictionary cites Den v. Urison, 2 N.J.L. 212 (1807), a New Jersey case: “… in case any doubt arises on the enacting part, the preamble may be resorted to to explain it, and show the intention of the law maker.” If our courts turn to the preamble of the Charter to inform their interpretation of that document, they should treat the words “supremacy of God” not in a religious sense but as an affirmation of Canadians’ rights and freedoms secure from and independent of the government.
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Ottawa shoots itself in the foot in the Khadr case
There is a dramatic development in the Khadr story. A Federal Court judge ordered the government to do something about Omar Khadr, and the government has seven days to comply. Justice Zinn handed down his judgement three days ago, on July 5, 2010, so if we are still a country of the rule of law we should hear from Ottawa around Monday or Tuesday. Although the judge didn’t order the government to ask the US for Khadr’s return, his repatriation may be the only logical outcome of the chain of events that Justice Zinn set off in Edmonton on Monday.
Omar Khadr, a Canadian citizen, is the last Western citizen remaining in Guantanamo Bay. The US authorities allege he threw a grenade that killed a US soldier in an Afghan firefight in 2002 when Khadr was 15 years old. In Guantanamo, he was subjected to physiological techniques to facilitate interrogation. The US denied Khadr the usual legal process rights. Canadian officials interrogated Khadr in Guantanamo and turned the findings over to the Americans. The Supreme Court of Canada (SCC) ruled that the Canadian government breached Khadr’s rights to fundamental justice by participating in the tainted US process against Khadr. SCC left it to Ottawa to choose a remedy for the breach of Khadr’s rights.
In response to the SCC decision, the federal government sent a diplomatic note to the US Department of State asking that evidence from Canadian interrogations be excluded from proceedings against Khadr. The US essentially refused.
No doubt the federal government believed the diplomatic note discharged its duty to Khadr flowing from the government’s breach of his rights. Not so fast, said Khadr’s lawyers. According to them, Ottawa’s decision to send the note concerned Omar Khadr’s fundamental rights as a Canadian citizen. The government was about to affect Omar’s liberty and possibly survival, when it chose to send the note instead of asking for his repatriation. Government decisions affecting an individual to this extent require at least some notice and an opportunity to be heard. These are principles of natural justice and procedural fairness. Justice Zinn agreed.
He held that the federal government breached Khadr’s procedural fairness rights when it failed to give him notice of its decision and to let him make written submissions in response. Khadr’s lawyers had specifically asked federal lawyers for notice and a chance to make submissions before the government made its decision. They didn’t receive any response to this request.
So the government breached Khadr’s constitutional rights again. Justice Zinn held that since the diplomatic note had no effect, it did not cure the first breach. He ruled that the federal government would have to try something else, this time with notice and an opportunity for submissions from Khadr’s lawyers—to remedy the second breach. But since the diplomatic note proved ineffective, the government may not resort to it again. It will have to propose another remedy. That is what Justice Zinn ordered the government to do within seven days—to propose a new remedy of the original breach of Khadr’s s. 7 rights. Of course, the government would have to comply with procedural fairness requirements in proposing this new remedy. After receiving the government’s notice of proposed new remedies, Khadr’s lawyers will have further seven days to make written submissions. Then as soon as “reasonably practicable,” the federal government is to act on its chosen remedy.
The curious aspect of this case is that if the government had respected Khadr’s procedural rights in making its original decision to send the diplomatic note, this case would probably not even have come up. The Americans would dismiss Canada’s note, and Khadr would be left in Guantanamo without any legal recourse in Canada. But since Ottawa had breached his rights once more in making its decision to send the note, it found itself pushed up against the wall in court again—this time without the option of sending a lip-service letter to the US. And what remedies other than a request for repatriation can the federal government come up with now to get Justice Zinn off its back? I am not sure there are any. And whatever your position on Khadr, the federal government has only itself to blame.
(Post sponsored by AdviceScene)
The law of street protest in Canada
The events of the G20 weekend in Toronto raised important legal issues and exposed gaps in our law. Are street protests legal and when can the police break them up? Can the police have special powers when world leaders are in town? How did we go from guaranteed freedoms of expression and peaceful assembly to a third-world style detention centre for protesters and police “kettling” of citizens at Queen and Spadina? What is the law of street protest in Canada?
The starting point for any analysis is the guaranteed freedoms of expression and peaceful assembly in sections 2(b) and (c) of the Canadian Charter of Rights and Freedoms. We start here because these freedoms are secure from any government body, including the federal parliament and provincial legislatures.
There is no absolute freedom of assembly in Canada. First, the Charter itself limits it by guaranteeing only “peaceful” assembly. That’s why the government can restrict certain kinds of assembly that it considers not peaceful. Such restrictions do not infringe on the Charter freedom of assembly unless the courts disagree with the government’s interpretation of what’s “peaceful.”
Second, the Charter freedom of peaceful assembly is guaranteed only “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (s. 1 of the Charter). It means legislative acts or judge-made common law in Canada can limit even peaceful assembly, but they must have very good reasons. Legislative acts include federal and provincial laws and regulations as well as municipal by-laws.
Only law can limit a Charter right. A police officer cannot limit a Charter right on his or her own initiative without any authority in law. When the police break up a street protest, they can do it either because the protest is not peaceful or because law prohibits the protest for a good reason acceptable in a free and democratic society. Police officers may not break up a protest in any other circumstances. If they do, these officers will be breaking the law. But in Canada, it’s hard to tell when officers break the law for the following reason.
Laws regulating protests in Canada give the police a lot of discretion in deciding, first, what assemblies are peaceful, and second, when peaceful protests are not allowed. Police discretion contradicts the values of accessibility and precision that gave rise to the s. 1 requirement that limits on Charter rights be prescribed by law. The idea is that citizens should have a “reasonable opportunity to know what is prohibited” (Peter W. Hogg, Constitutional Law of Canada, Student Ed. 2007 at p. 798)—that’s accessibility of law, and that officials must not engage in discriminatory and arbitrary breaches of rights—that’s precision of law.
But in R. v. Hufsky and R. v. Ladouceur, the Supreme Court held that as long as police discretion comes from law, it meets the s. 1 standard of “prescribed by law,” even if the discretion is unfettered. So completely random stops of cars authorized by an anti-drunk driving law are capable of s. 1 justification, but pulling over a car merely on a hunch as in the recent landmark case of R. v. Harrison cannot be justified by s. 1 because it is not prescribed by law.
There are five types of law that regulate street protests, and all of them give enormous discretion to the police. First, s. 63 of the Criminal Code prohibits “unlawful assembly,” which it defines as “three or more persons” gathered in a way that causes reasonable people in the neighbourhood to be afraid that the assembly will either disturb the peace tumultuously or provoke others to do so. This provision apparently complies with the Charter guarantee of “peaceful assembly” because words “disturbing the peace” and “tumultuous” imply that the assembly is not peaceful.
Second, s. 31 of the Criminal Code gives the police a general power to detain people for “breaching the peace.” The result is that street protests that breach the peace may be dispersed. The breach of peace arrest power seems to restrict the freedom of assembly without infringing on the Charter’s guarantee of peaceful assembly. Again, the police have discretion in deciding what is a breach of the peace.
Third, municipalities can pass by-laws prohibiting street protests that are not peaceful because they interfere with interests merely local in nature. For example, a by-law may prohibit excessively loud protests. It’s unclear if such prohibition fully respects the Charter, where the word “peaceful” may have a more dramatic sense than merely something touching on city noise by-laws.
Fourth, the police can use their ancillary common-law powers to regulate protests (in Ontario, see s. 42(3) of the Police Services Act). At common law, the police have powers that are necessary to discharge their duties. One of the duties of the police is to preserve the peace. If it is necessary to restrict a street protest to preserve the peace, the common law gives this power to the police. Again, apparently such police restriction would not infringe on the freedom of peaceful assembly, and again the police has tremendous discretion.
Finally, municipalities, provincial legislatures, and the federal parliament and respective cabinets can pass laws, regulations, and by-laws restricting the freedom of peaceful assembly, but only for a good reason. For example, it may be reasonable and democratic to prohibit protests in residential areas after 11 pm, in construction zones, on highways, or inside courthouses or secret military installations. If protesters challenge such law, the government will have to justify it under s. 1 of the Charter.
In a 1978 pre-Charter case Dupond v. City of Montreal, the Supreme Court upheld a city ordinance prohibiting street protests. The court cited the following English law dictum: “A claim on the part of persons so minded to assemble in any numbers, and for so long a time as they please to remain assembled, upon a highway, to the detriment of others having equal rights, is in its nature irreconcilable with the right of free passage.” After the Charter, it is not clear if municipalities still have the power to prohibit street protests.
The word “peace” is a common thread in all the laws that regulate street protest. These laws either give the police powers to preserve the “peace” at its discretion or ignore the peaceful nature of the protest for other arguably higher goals.
When the police boxed citizens in at Queen and Spadina for hours, they could invoke any of three sources of authority to break up protests disturbing the peace: s. 63 of the Criminal Code, breach of the peace provisions of the Criminal Code, or common law ancillary powers to preserve the peace. All three would require the police to make a judgement that the protest was not peaceful. Since the statute delegates this judgement to the police or recognizes its common-law authority to make that judgement, the courts would likely defer to the police expertise to decide what is peaceful and what is not.
The police could also rely on a statute that allowed it to disperse even peaceful protests. According to witnesses, some officers cited the Public Works Protection Act (PWPA) when they detained citizens on the street. That law does limit the freedom to peaceful assembly in places designated as public works, and it would probably be justified under s. 1. After all we don’t want protests in a courthouse or maybe within the G20 fence. But justifying the mass detention at Queen and Spadina, which was hundreds of meters from the G20 fence, by the PWPA is futile. And it’s clear the police didn’t need the PWPA authority there as they had plenty of discretion under other laws.
The bottom line is our courts and legislatures have consistently failed to set out rules for police engagement of street protests. The statutes are either drawn in broad terms like “tumultuous” and “peace” or simply avoid regulating protests by deferring to broad police powers at common law. Canada is not a police state—far from it. Our ideal is the rule of law and protection of civil liberties. But just like with ideals, we shouldn’t take our eyes off frightening possibilities. In a police state, armed agents of the state are free to limit freedoms and rights as they please. Their discretion is completely unfettered, almost like the discretion our laws grant to the police in dealing with street protests.
Our police forces are professional, highly trained, and generally honest. But it is not their job to determine the content of the Charter freedom of peaceful assembly. Provincial legislatures and the federal parliament must step in and give clear guidance to the police when they can break up street protests. The police can make mistakes and may have its own institutional interests that are not necessarily the same as the public interest. The people have a right to clear notice of what is lawful, and we all have a fundamental freedom of peaceful assembly. Our legislators must set out with much greater precision what the police powers are in regulating street protests.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
The legality of G20 police cordons in Toronto
Toronto is a changed city this weekend. Various police forces have cordoned off a big part of downtown searching and checking IDs of those wishing to enter. We in Canada are not used to ID checks and car searches on public streets. Canadians are usually free to walk in public areas, and the police cannot stop people and force them to show ID or even answer questions without a good reason to suspect them of a crime. When a big part of a crowded and bustling city becomes off limits, many people will probably wonder if G20 is worth it. Many lawyers will perhaps ask a different question: does the police have the power to cordon off downtown Toronto. The answer is yes.
The simplest and shortest explanation is in s. 10.1(2) of the Foreign Missions and International Organizations Act (FMIOA), which charges the Royal Canadian Mounted Police (RCMP) with the security of “intergovernmental conferences” in Canada. Section 10.1(2) of the act expressly grants the RCMP the power “to take appropriate measures, including controlling, limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstances.” The Integrated Security Unit that includes the RCMP is responsible for securing G8/G20 events. The RCMP’s role is “the Summit site and surrounding areas,” so presumably it is the RCMP that has cordoned off a part of downtown Toronto. It has a statutory power to do so.
An Act of Parliament grants the RCMP this power to cordon off streets. That ends the real-life analysis. But imagine there was no law like that or imagine the Toronto Police tried to cordon off a few blocks in Toronto. Would the police still have the cordon-off power? This is an interesting theoretical question because many police powers do not come from statute, and it’s important to know when the police exceed their authority. The FMIOA doesn’t apply to Toronto police, and Ontario’s Police Services Act and City of Toronto Act don’t grant the cordon-off power to the Toronto Police Service. (The FMIOA presumably allows the federal government to delegate RCMP’s cordon-off power to other police services (s. 10.1(4)), but let’s pretend it’s not the case.)
In Ontario, police powers come not only from statute (express acts of the provincial legislature or the federal parliament) but also from common law (courts’ judgements). Police existed before any act of parliament incorporated it, and during that period courts had the final word on police powers. When legislatures recognized police powers under statute, sometimes they continued police powers that existed at common law. Under s. 42(3) of the Police Services Act, “[a] police officer has the powers and duties ascribed to a constable at common law.” This provision allows the courts to continue to adjudicate police powers not expressly granted by the legislature.
When Canadian courts resolve a dispute in which a complainant questions the existence of a police power, they apply the Waterfield test, named after an English case that explained police powers at common law (also known as the ancillary police powers). A court applying this test would see first if a police action interfered with personal liberty or property without statutory authority. If yes, the court would see if “(a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.” (R. v. Waterfield [1963] 3 All E.R. 659 (C.C.A.) at 661). Basically, at common law the police can do anything necessary to discharge their lawful duties as long as the use of their powers is justified.
Judicial precedents guide us as to what is justified. For example, in Knowlton v. R., a 1975 Supreme Court decision, the court held that cordoning off the sidewalk in front of a hotel hosting a foreign leader is justified. A photographer who tried to break through the cordon was arrested and charged with obstruction of police. Part of the reason for closing the sidewalk was a previous assault on this foreign leader in another Canadian town. This and the fact that everyone knew about the widely publicized assault helped the court conclude that the cordoning off was justified even if the police didn’t explain their legal authority to the photographer. The court held that the photographer should have known the police had a duty to protect the foreign dignitary in these circumstances. The photographer also had a chance to get his pass but missed it.
I haven’t heard of a court case that looked at something on the scale of G20 events in Toronto, but Knowlton gives us some idea what a court would say. It would emphasize the history of violence at such events and the massive publicity reaching probably every resident of Canada. Closing off the downtown core is not the same as blocking a sidewalk but the number of dignitaries is many times higher and it’s common to believe that the world is less secure today than 35 years ago. The courts would likely defer to police judgement on the size of the cordoned area given the courts’ relative ignorance of operational security issues. The reasoning will be similar to the rationale behind s. 10.1(2) of the FMIOA. The police would tell the courts that cordoning off a chunk of downtown Toronto is necessary to protect foreign leaders and keep order and the way they do it is justified. The court would likely accept that.
Presumably, if cordoning off passes the Waterfield test, it will also be justified under s. 1 of the Charter. (I am not going into detail on this, but see R. v. Clayton, 2007 SCC 32 for a related discussion.) Of course, unless a court finds that we have a Charter right to freely go downtown, s. 1 won’t even come up.
I am not happy with the G20 summit’s impact on Toronto. It will hurt downtown businesses (except hotels), cause traffic chaos, and bring clashes between the police and protesters. Having to show ID and submit to searches to move around your own city is a sacrifice of our liberties and it simply looks bad in a democracy. Walls separating city quarters are notorious in history, and we probably don’t want any resemblance here. But the police likely have full legal authority to cordon off streets for the G20 summit, and any challenge to such cordons should be not legal but political.
(Post sponsored by AdviceScene)
What can the mayor of Toronto really do?
Toronto will go to the polls to elect its mayor on October 25 this year. There is a lot of media interest in mayoral candidates and scandals surrounding some of them. The incumbent mayor, David Miller, also attracted media attention and intense feelings among both his supporters and detractors. But is the mayor’s job really that important? What actual powers does the mayor of Toronto have? If we look at the law, the answer is rather surprising. Despite all the attention, the mayor of Toronto doesn’t decide much, and the city’s governance is mostly in the hands of the city council and ultimately the provincial legislature.
The word “Toronto” has two meanings: a place and a corporation. The second meaning refers to the organization that governs the city. This organization is a special corporation created by Ontario legislature through the City of Toronto Act. As a creature of statute, the city has only powers granted by the province. The same statute grants powers to the mayor and to the city council and authorizes the city council to delegate its powers to the mayor. That’s why to get a general idea of the mayor’s powers, you need to review both the City of Toronto Act and city council by-laws.
The city, the mayor, and the city council must exercise their powers within the limits set by Ontario legislature. All three owe their existence to provincial statute and can be abolished by provincial statute. The 1997 ruling in East York v. Ontario confirmed that municipalities do not have an “autonomous” constitutional status and are subject to the will of provincial parliaments. In that case, a group of Toronto residents and some of the municipalities making up the Metro Toronto area challenged amalgamation of cities around the old Toronto into the megacity where we live today. Their challenge failed and the appeal was dismissed.
In 1994, the Supreme Court ruled that the city of Vancouver may not boycott Shell for its cooperation with the apartheid South Africa. The Court’s majority decided that such boycott was not for a municipal purpose as set by British Columbia legislation, specifically the Vancouver Charter, which is the equivalent of the City of Toronto Act. These cases show that municipalities and their mayors are subject to provinces’ will and must act within the authority given by provinces.
The word “mayor” appears only five times in the City of Toronto Act. The statute grants the mayor only two roles: the head of the city council and the “chief executive officer of the City.” In the first role, the mayor’s powers are “to preside over meetings of council so that its business can be carried out efficiently and effectively; to provide leadership to council; to represent the City at official functions; to carry out the duties of the head of council;” and to give the council certain information and recommendations. As the city’s CEO, the mayor must “uphold and promote the purposes of the City; promote public involvement in the City’s activities; act as the representative of the City both within and outside the City, and promote the City locally, nationally and internationally; participate in and foster activities that enhance the economic, social and environmental well-being of the City and its residents.”
The powers of the highly-contested mayor’s office appear almost ceremonial. The mayor doesn’t control the police, cannot influence legislation in his jurisdiction as Premiers or the Prime Minister can, and cannot issue executive orders. And the mayor doesn’t run the city’s operations: it’s the city manager’s job.
The mayor does have one truly great power, but only in emergencies. The City of Toronto Act allows the city council to delegate its legislative authority in limited circumstances. Under Chapter 59, Article VI of the Toronto Municipal Code, the mayor takes over the council’s legislative authority in emergencies. That’s what happened in 1999, when then mayor Mel Lastman called in the Canadian Forces after a massive snowfall in Toronto blocked ambulances from reaching patients.
All in all, Ontario legislature leaves it for the city council to govern Toronto. The council is like a corporate board of directors and the city manager’s office is like managers of a corporation. The mayor can’t do much without the council or the city manager. But the nature and the powers of the mayor’s office certainly make for a lot of publicity, which probably explains why there is so much hoopla over Toronto mayor’s elections this fall.
Pulat Yunusov is a Toronto civil litigation lawyer.
(Post sponsored by AdviceScene)
The stakes of copyright reform
Not many government bills cause so much debate as C-32—the legislation to amend Canada’s Copyright Act—introduced on June 2, 2010. One of C-32’s most contentious innovations is a complete ban on bypassing digital locks on electronic content. James Moore, a federal Minister, said that C-32 offered “a common-sense balance between the interests of consumers and the rights of the creative community.” But his opponents believe Moore’s “common sense” will empower copyright holders and take away traditional rights of consumers.
C-32 is not the first attempt to revise Canada’s Copyright Act. The most recent reform effort began during the previous federal government in 2005. C-32 predecessors, Bills C-60 and C-61, died as a result of a collapsed government and a dissolved parliament. Many opposed the reforms, and Michael Geist, a University of Ottawa law professor, became an intellectual leader of the protest movement.
The government has said the current law is outdated. One letter sent to constituents mentioned that “Canada has been placed on piracy watch lists and our intellectual property protections are compared with those of countries like China, Russia and Dubai.” The government justified the reform by the need to comply with international treaties that it signed on behalf of Canada. There are also allegations that the Canadian government acted under pressure from the US government and the copyright lobby.
This reform will decide issues that ultimately concern everyone. Copyright is an exclusive right to copy or distribute a work. The flip side of someone’s copyright is everyone’s duty to respect it by not copying or distributing the copyright holder’s work without permission. Pretty much any original product of human expression is a work protected by copyright, including movies, music, books, and even your emails.
Copyright’s prohibition on copying would be draconian if some exceptions didn’t exist. Traditionally, “fair dealing” is one. The law has entitled us to copy parts of someone’s work for criticism, review, study, or similar activities. Just like copyright is a right of content owners against content consumers, fair dealing is a right of consumers against owners. Quoting from books, showing films clips, playing song excerpts, photocopying a few pages from a journal are essential to the development of arts and science and to our self-reflection as a society. If we can’t copy anything, we can’t spread information, and curbing the flow of information with constant payments to copyright holders will curb ideas and free expression. Fair dealing is important, and it is our right.
Copyright owners’ or their partners use technological protection measures (TPMs) to limit our right to fair dealing. They can encrypt their content so we can’t copy it. Most DVD films are an example. Owners can use proprietary formats that only sanctioned technology can access. Amazon does it with its e-books, which only Amazon Kindle can open. Hardware makers can restrict their devices to accept only permitted content. Apple screens each and every iPhone application before allowing it into its App Store.
You would expect the law to protect our traditional rights to fair dealing in those cases. And in some countries, to take the example of mobile phone locks, the law regulates or prohibits this practice. But in most countries, including Canada, the law doesn’t stop copyright owners or their partners from locking content or devices up. Such locks would make the right to fair dealing meaningless if circumvention technologies didn’t exist. They allow consumers to bypass digital locks on electronic content.
The big deal about C-32 is that it bans circumvention under penalty of fines or jail. Not only does C-32 ignore TMPs’ gutting of fair dealing rights, but it also punishes those using circumvention for fair dealing. C-32 turns consumers’ fair dealing rights into privileges granted at copyright owners’ discretion. If owners choose to unlock their content, fair dealing is possible. If they use TPMs, it’s not. If C-32 is passed, the independent statutory right to fair dealing will cease to exist.
Some people use circumvention to make illegal copies of movies, music, software, etc. But to choke a long-established right because the entertainment industry loses profits is an overkill. Go after illegal distributors, strengthen enforcement of existing laws but don’t give the copyright lobby powers to regulate fair dealing. Do we as a society want to give so much control over information flow, and by extension essentially over thought and expression, to an industry group?
(Post sponsored by AdviceScene)
The problem with electronic books
I love my Kindle. I love this thin, light tablet that I can read both at the desk and in bed. I love the ease of getting new books, and I love when the fresh issue of The New Yorker downloads itself. I have read more books in the last year because of the Kindle, but I also paid more for books that I otherwise would have borrowed from the library. On the balance, I think ebooks are great and the way of the future, but we must watch out for some problems with those ebooks that use closed, proprietary formats.
Regardless of format, ebooks have some compelling advantages over traditional printed books. First, ebooks can last infinitely. With printed books, it is entirely conceivable that a rare, out-of-print edition will simply disappear because its physical form is weak and vulnerable to wear and destruction. Ebooks are easy to back up. The cost of making each additional copy is practically zero. Ebooks after all are computer files like Word documents or JPEG images. That’s why ebooks are also enormously portable. A thousand-volume paper-based library is to a thousand ebooks as an elephant is to a pet lizard. The publishing costs are also much lower for new books because authors create them in an electronic form, and there is no need to typeset them or to buy thousands of pounds of paper to print them. There is also no need for expensive brick-and-mortar stores with a large sales staff. Ebooks are sold or given away for free online. This is especially handy if a single corporation dominates your country’s printed book market. In fact, anyone can publish an ebook online potentially reaching millions at a relatively miniscule cost. Finally, think of all the trees ebooks save.
But there are serious problems with ebooks, mostly when they come in closed, proprietary formats. A closed format means that its owner (e.g. a book distributor like Amazon) controls what you can do with the book. The proprietary format owner can hide the details of how the format works making it more difficult to build alternative ebook readers. For example, opening Word documents with non-Microsoft software is not as perfect as opening them with Microsoft Word. But most text editors are equally good at manipulating plain text or HTML files, which are open formats. The ebook format owner can enforce its control with the law (e.g. patents) or technology (e.g. encryption). In some jurisdictions, it is also unlawful to circumvent encryption of proprietary-format media. Amazon protects many of the books it sells with such technology also known as Digital Rights Management (DRM).
Because many ebooks have closed formats, publishers appear to license books to readers rather than sell them. It’s easier to control use of a licensed electronic product than of printed, physical books. We can’t easily share proprietary-format, protected ebooks. You can’t just email an ebook you bought from Amazon to your friend. Amazon locks each protected book to the Kindle of the person who bought it. Your friend can’t read your ebook on his or her Kindle. It’s also harder to overcome regional restrictions. Before, if a publisher sold a book only in the US, you could still bring it to Canada. Now, publishers can make it harder through DRM. Publishers can also use DRM to control libraries or to exclude them from certain books completely assuming some books are available only in electronic format. You can’t easily photocopy a page from an ebook if it’s in a closed format. Of course, if it uses an open format and it’s not DRM-protected, you can copy any text from the book anywhere and any number of times taking full advantage of its electronic nature. In some cases, if the book is in a proprietary format, the publisher or distributor can even delete your book remotely. The closed format and the need to protect digital content also strips most buyers of their anonymity. You cannot buy a book online anonymously. Usually, the book distributor has a record of every book you purchase. This could chill freedom of thought in a future where all ebooks are in a closed format because people would hesitate to buy books seen as dangerous to their reputation.
Finally, closed formats live only as long as their corporate owners. As I was enjoying The Black Swan on my Kindle last night, I wondered what would happen to my copy if Amazon were to go under. The reading device would eventually break down, and its battery would stop functioning even sooner. I would still be able to read the book with Kindle software on my Mac, but if Amazon disappeared, its software would eventually stop working on future computers. At the end, I would be left with a useless file that no one can read. It’s not a huge loss for a $10 book, but what if I invested $10,000 in proprietary-format ebooks? What if some books are available only electronically and only through a single distributor in the future? Is it so far-fetched? Or is it far-fetched that a large bookseller could vanish one day? With closed, proprietary ebook formats, we could end up with a single point of failure in not so distant future endangering our investment in books and our literary heritage.
(Post sponsored by AdviceScene)
Against assisted suicide
A few days ago the Canadian House of Commons rejected an assisted suicide bill. The proposed legislation would allow doctors to help terminally ill patients or people in unrelenting pain to end their lives. Currently, doctors or nurses or anyone else who helped someone die would be liable to murder or manslaughter charges and perhaps civil damages. Very few jurisdictions in the world authorize assisted suicide, which seems to be a “victimless crime.” The recent failure of this bill in Canada is a good opportunity to review reasons why society denies us an inalienable right to control our own death.
The dying person certainly has an interest in the right to end own life. First, suicide would stop unimaginable suffering. Second, the debilitating suffering is an affront to the patient’s dignity. Third, the dying person may want to accelerate the transfer of his or her property to the heirs. Fourth, the patient desiring suicide may wish to spare his or her loved ones the mutual torture of the situation. Finally, the patient may want to cap his or her health care bill. That of course is not very relevant in Canada unless your province refuses to pay for a life-saving cancer drug.
Not all public interest is against the dying person’s wish. Respect for private will and the freedom to choose is an important part of the Western way of life. But the difficulty here is that dying patients and people in unrelenting pain may have lower decision-making capacity so the society must take extra steps to ensure it understands the will of the patient correctly and that the patient is capable of forming decisions.
Generally, all issues that the society has with assisted suicide are rooted in the overarching interest to protect human life. Death is irreversible, so the risk of mistake is unacceptable even if the risk is small. The harm from assisted suicide based on a mistaken conception of the true will of the patient is enormous. People in great suffering are vulnerable and may have a lower capacity to make decisions or to communicate their true will. It is reasonable to speak of a slippery slope where we take less and less precautions or where our precautions are not enough in harder cases, which we cannot recognize. That path will take the society to where it may kill people who do not really want to die but simply cannot tell us about it.
That’s why, incidentally, the death penalty should be abolished: unless we can guarantee guilt, every time we kill a convict we risk killing an innocent man. Unless a convict’s life is less valuable than a patient’s, our highest duty to preserve life must make any risk of unjustified killing, including in the death penalty, unacceptable.
Another slippery slope argument is that the society will be seduced into tolerating more relaxed requirements for assisted suicide to lower the high cost of caring for the dying. The flip side of this argument is that we should prohibit assisted suicide to protect our standards of caring for the dying.
Our society is extremely complex and it is far from perfect. We make mistakes all the time. Sometimes, politics, ideology, or emotion influence decisions that should be exclusively technical. The risk of killing a dying patient who may not really be willing to die is too high given our paramount social duty of preserving life. Besides, modern science can certainly come up with means of reducing or eliminating suffering on the death bed, if not push the death farther away. Authorizing assisted suicide (just like authorizing the death penalty) is not a good idea.
(Post sponsored by AdviceScene)
Cloud computing tips for lawyers
Cloud computing is one of the best technologies we’ve had in the last decade. It gives us mobility, versatility, security, and powerful ways to manipulate our data. It’s also cheap. Because it’s rooted in the Internet, some express legitimate concerns with cloud computing, mostly centred around data security and privacy. Lawyers may be particularly cautious to deploy clients’ data in the cloud because of lawyers’ unique responsibilities and duties. But a careful look at cloud computing shows that it’s safe for both the general public and lawyers. Its benefits greatly outweigh its costs and some of its features are so compelling, time-saving and economical that every lawyer should be considering cloud computing.
Cloud computing means keeping and processing your data online. For example, in Gmail, you read and write email in your browser’s window, but Google’s servers take care of storing, sending and receiving messages for you. Google Docs lets you do the same thing but with word processing. Ufile.ca handles your tax returns. Amazon S3 gives you unlimited file storage in Amazon data centres. All social media sites like Facebook, Twitter, LinkedIn, Youtube, Flickr, etc. are also examples of cloud computing. Whenever you delegate data storage and processing to a third party that grants you online access, you do cloud computing. “Cloud” means that the specific physical server on which the provider keeps and processes your data is obscure to you. All you care about is the Internet address of the provider and your own access credentials. Into the “cloud” goes some input, and out of the “cloud” comes some output. That’s how it works.
Benefits of cloud computing are enormous. I can think of ten: 1) you can access your data anywhere with an Internet connection; 2) you don’t have to troubleshoot or upgrade any software other than the access application, which is usually your browser; 3) instead of paying large sums for desktop software and its upgrades, you get a free or low-subscription-fee cloud service; 4) you subcontract data storage to professionals; 5) the cloud can give you a regular, frequent, and professional backup solution; 6) cloud services can come with search and data crunching capabilities that are unparalleled simply because of the massive cloud computing infrastructure; 7) cloud backup services can automatically keep previous versions of your data in a way that is unmatched again because of inadequacy of your home or office infrastructure; 8) the cloud can protect your data from undesired jurisdictions or it can keep the data in specific jurisdictions; 9) the cloud makes it easy to share any part of your data with chosen parties and to control their access; 10) the cloud lets you tap into social networks of billions of people.
But some have legitimate concerns with the cloud. And lawyers are among those voices as members of the legal profession have unique responsibilities and duties. There are two main attributes of cloud computing that cause people to worry. First, you appear to lose control over your data’s physical location. And second, you expose your data to the Internet apparently swarming with hackers (“cracker” may be a better word), spies, thieves, and viruses. All alleged issues of privacy, security, and reliability stem from these two things. Often, critics assume that keeping data and applications on home or office computers is a safe alternative. This assumption is probably the biggest fallacy in the cloud computing debate. Let’s review some solutions to issues associated with cloud computing. Read more
