Canadian law

LawNews

Chelsea Manning is a former U.S. Army intelligence analyst. She leaked thousands of military and diplomatic documents to WikiLeaks about civilian deaths and the abuse of detainees by the Iraqi forces under American supervision during the Iraq War.

She was arrested back in 2010 when she was known as Bradley Manning. In 2013 she was convicted of six breaches of the Espionage Act, though she was acquitted of the charge of Aiding the Enemy.

For her crimes, Manning was sentenced to thirty-five years in prison. She served seven years before (now former) President Obama used his powers of presidential clemency to commute her sentence in 2016. Despite the commutation, when Chelsea Manning attempted to visit Canada this past Monday, she was denied entry.

At first glance, denying Manning entry into Canada feels absurd. Yes, she was convicted of a crime, but her sentenced was commuted.

That’s like a pardon, right? She should be allowed into Canada, right?

Unfortunately, it’s a lot more complicated than that.

The issue of whether or not convicted criminals are admissible to Canada is where the subjects of criminal and immigration law cross. For the purposes of this article, we’ll focus primarily on convicted criminals from the United States who attempt to enter Canada.

Fortunately, Chelsea Manning herself generously posted on Twitter a copy of the letter she was given upon being denied entry by Canadian border agents:

The letter says that she was denied because of paragraph 36(1)(b) of the Immigration and Refugee Protection Act, a federal law that defines admissibility and inadmissibility to Canada.

Article 36 of the law refers specifically to inadmissibility based on serious criminality. Some of the criteria under which someone would be considered inadmissible to Canada on grounds of serious criminality include:

  • Being convicted in Canada of a crime with a maximum jail term of ten years or
  • Being convicted of a crime outside of Canada that, if committed in Canada, would have resulted in a custodial sentence of at least ten years or
  • Being convicted of an indictable offense in Canada or
  • Being convicted of at least two indictable offenses not arising out of a single occurrence or
  • Being convicted of an offense that would have been considered an indictable one in Canada

Chelsea Manning was denied entry into Canada because as per the letter she received, her conviction made her inadmissible.

The crime she was convicted of  – leaking classified government information under the American Espionage Act – has a Canadian equivalent: treason. Under the Canadian Criminal Code, the maximum penalty for treason is life imprisonment. As the rules state, if the crime you were convicted of abroad would carry a sentence of ten or more years in jail if you’d committed it in Canada, you’re inadmissible for entry into the country.

Canada and the United States generally do not recognize each other’s pardons.

An American pardon does not mean a conviction will be invisible to border agents. Though the information they find will likely indicate the pardon and might tell border agents that the person has rehabilitated themselves, it’s no guarantee they’ll get into Canada.

Chelsea Manning did not receive a pardon from Barack Obama, her sentence was commuted.

A pardon would mean her crime was forgiven and it would be as if she’d never committed it.

According to the US Department of Justice which handles requests for presidential clemency, a commutation of a sentence does not change the fact that a person was convicted of a crime, nor does it imply innocence, or remove any barriers a person would have as a result of their conviction.

All a commutation does is reduce the person’s sentence, either partially or completely. In the case of Chelsea Manning, she served seven years in prison instead of the thirty-five prescribed by her sentence.

Manning may be out of jail, but the other consequences of her criminal conviction remain.

That said, Chelsea Manning has promised to appeal the decision of Citizenship and Immigration Canada, but she will have a tough road ahead. Her crime is considered “serious criminality” under Canadian law, and according to the Immigration and Refugee Protection Act, there is no way to appeal a decision of inadmissibility on grounds of serious criminality.

According to Buzzfeed, a source close to Manning said she would appeal on the grounds that there is really no equivalence to the US Espionage Act in Canadian Law or the law of other countries besides the US.

There is, however, a way to pre-empt a potential refusal at the Canadian border for criminality reasons.

Citizenship and Immigration Canada has a process called “Criminal Rehabilitation” that allows foreign nationals with criminal convictions to apply for individual criminal rehabilitation allowing them to enter Canada. It should be noted, however, that even if Manning had filled out such an application, she would not currently be approved due to its selection criteria, which requires that at least five years have passed since the completion of her sentence.

Travel of any kind can be a nuisance, but it is doubly so if you come a long way only to realize you’re being barred from your destination due to a past criminal conviction. Annoying as they are, some argue that rules regarding criminality and admissibility to Canada are essential to national security. Others, like Canadian free speech attorney Jameel Jaffer, who spoke with The Intercept on the subject, feel there is no way Manning could possibly pose a threat to Canadian security.

Chelsea Manning is a hero to some and a traitor to others. The issue with her coming to Canada seemed not to do with her crimes, but with the fact that she was convicted. She may be able to come Canada some day, but for now it looks like she’ll have to wait five years.

CultureLaw

The notion of pardons has made headlines recently with the Orange President’s pardoning of former Arizona Sheriff Joe Arpaio.

Arpaio is involved in a racial profiling in a case in which his patrols targeted and imprisoned Latinos in an attempt to crack down on illegal immigration. He was ordered to stop but Arpaio told his subordinates he planned to continue business as usual. He was convicted of contempt of court and facing six months in jail…

That is until the Orange Racist decided to pardon him on August 27, 2017.

This article is not about the fact that the US President, Arpaio, and the US Attorney General are clearly America’s senile, racist grandpas who should have been left in nursing homes ages ago…

It’s about pardons and will look at how pardons work in the US and Canada. For the American model, I’ll focus on the Presidential Pardon as that is the one the Orange President is most likely to abuse as the Russia scandal unfolds.

Record Suspension in Canada

In Canada, a pardon is formally called a “record suspension” and despite what many think, it does not wipe your slate clean of any crimes you were convicted of in the past.

A record suspension means that your criminal record will be kept separate from your other criminal records. That means it will be removed from the Canadian Police Information Centre (CPIC) database and won’t come up on a search. The purpose of this is to allow those convicted of a crime that have successfully rehabilitated themselves to reintegrate into society by opening up educational and employment opportunities they would not otherwise have access to.

Criminal record suspensions are governed by the Criminal Records Act. Though it only applies to records kept by federal organizations, most provincial and municipal criminal justice bodies will also restrict access to a federally suspended record once informed that a suspension has been ordered.

As per the Act, the Parole Board of Canada (“the Board”) has exclusive jurisdiction and “absolute discretion” to order, refuse or revoke a record suspension. Anyone convicted of an offense under Canadian law can apply to the Board for a record suspension, but there are a few catches.

First, you cannot apply for a record suspension until a certain time has elapsed after the expiration of your sentence. If your sentence was more than six months long or your fine greater than five thousand dollars, or if you were dismissed from the Canadian Forces – army, navy, or air force – and detained for a period of six months or had a punishment of over two years as per the scale of punishments set out in the National Defense Act, you must wait ten years before applying for a record suspension. If the offense was punishable on a summary conviction – a lesser type of penalty in which the maximum punishment is five thousand dollars or six months in prison – or is an offense other than those covered by rules for servicemen, you must wait five years before applying for a pardon.

It should be noted that there are some types of offenders who are ineligible for a record suspension regardless of how much time has elapsed since their conviction and sentence. People who have been convicted of sexual offenses towards minors as well as the trafficking of minors are usually ineligible for record suspensions. There is, however, an exception to this rule, and this where the Parole Board’s discretion comes in.

A person convicted of the above offenses can apply for a record suspension but will only get it if the Parole Board is convinced that the former offender was not in a position of authority towards the victim nor was the victim in a situation of dependency on the offender at the time of the offense. In addition, the Board must also be convinced that the offender did not use violence, coercion or intimidation against the victim. The offender also needs to be less than five years older than the victim.

It’s not just people who commit sex crimes against kids who cannot get a pardon in Canada. Any person convicted of more than three offenses prosecuted by indictment in which they were sentenced to two years or more in prison are also ineligible without exception.

If you successfully get a record suspended, it does not erase the conviction or the record of it. It simply sets it aside and can be revoked or cease to have effect if you’re convicted of a new crime, found to “no longer be of good conduct”, found to have lied, provided misleading information, or hidden info on your application, or if you weren’t eligible for a pardon when you applied. If you were convicted of a sex crime against minors but managed to get a record suspension under the Parole Board’s discretion, your file will still be flagged under the CPIC in the off chance that you try and volunteer or find a job working with a vulnerable group such as the elderly or children.

Pardons in the US

In the US, the Constitution grants the president the power to “Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”. That means that he can pardon just about anyone for any criminal offense. As in Canada, the pardon can be used only for criminal offenses.

With a pardon, the president forgives the commission of the offense. According to the US Supreme Court, pardons can be issued at any time “after [the commission of an offense], either before legal proceedings are taken, or during their pendency, or after conviction and judgment”.

It is customary for the President to grant pardons based on the recommendations of the Department of Justice (DOJ), which is charged with reviewing applications for presidential clemency. Their standards for assessing applications are according to the applicant’s post-conviction conduct, character, and reputation, the seriousness of the offense and how recently it was committed, the offender’s acceptance of responsibility for the offense and sense of remorse and atonement, “the need for relief” and official reports and recommendations. It should be noted however that the president is under no obligation to follow the DOJ’s recommendations nor can the DOJ restrict the president’s power to pardon under the US constitution.

Sheriff Joe Arpaio

In order for a pardon to work, a warrant of pardon must be physically delivered to the person granted it. The recipient then can either accept it or reject it. If it is rejected, the courts cannot force the person to take it.

Unlike in Canada where the record is simply set aside, a presidential pardon has the effect of ending the punishment and “obliterates both conviction and guilt which places the offender in a position as if he or she had not committed the offense in the first place”.

Though presidential pardons appear absolute, there are many legal experts in the US challenging this because of Sheriff Arpaio.

Protect Democracy, an activist group fighting the President’s violations of legal norms recently sent a letter to the DOJ arguing that the pardon was granted in violation of its limits set out in the constitution. The group argues that the Constitution of 1787 is limited by later amendments including the Fourteenth Amendment guaranteeing equal protection before the law, and the Fifth Amendment guaranteeing due process.

In Arpaio’s case the Fifth Amendment comes into play because his actions leading to the conviction routinely violated Americans’ right to due process before the law and that in order to enforce this rule, the courts must be able to restrain government officials breaking them.

Whether the challenge succeeds or not remains to be seen, as there is no legal precedent for doing so.

As a rule, pardons do more good than bad. They allow people who made mistakes they’ve atoned for to move on and become productive members of society. As in anything, there is a danger when the power to pardon is absolute and vested in only one person, especially when that person is a senile, racist, whining misogynist.

It will be up to the American people and especially American jurists to recognize that what happens with Arpaio will be one more step in determining whether they are truly committed to democracy and rule of law or have resigned themselves to rule by an incompetent dictator.

CultureLawQueer

Montreal Pride is upon us and with it the sights and sounds of people celebrating sexual diversity in an environment that is supposed to be safe and welcoming. Though in Canada we pride ourselves at our enlightenment on issues of sexuality and gender identity, we have still have a long way to go. Before we can move forward, we need to look at our past.

This article will look briefly at the history of LGBTQ struggles in Quebec and Canada, conduct a quick overview of current legislation, and do its best to present a picture of the status quo and what needs to be done to make our country safer and more inclusive.

During the British colonial period, homosexuality, known as “buggery” or “sodomy” was punishable by death. In 1861, the law was eased a bit and the penalty was changed to ten years to life in jail. Anti-gay laws almost always targeted men and the language of laws was kept intentionally vague in order to give huge discretion to law enforcement.

Starting in 1890, gays were generally charged with “gross indecency”, and between 1948 and 1961 changes to the Canadian Criminal Code were made, creating the categories of criminal “sexual psychopaths” and “dangerous sexual offenders”. Instead of persecuting rapists and pedophiles, the changes were disproportionately used to target gays. In addition, Canadian immigration law considered homosexuals an inadmissible class of immigrants.

The gay rights movement in Canada didn’t really gain momentum until the 1960s, when George Everett Klippert, a mechanic from the Northwest Territories, admitted that he was gay and had sex with men. In 1967 he was charged with “gross indecency” and sent to prison indefinitely as a “dangerous sexual offender”.

His conviction was sadly upheld by the Supreme Court of Canada.

While Klippert was rotting in jail, the British government opted to decriminalize certain homosexual acts. Taking a cue from our Mother Country, Pierre Elliot Trudeau, at the time Justice Minister for Prime Minister Lester Pearson, began pushing the omnibus bill, a bill that would amend the Criminal Code to decriminalize homosexual sex, legalize contraception, and increase access to abortion. When asked about it, Trudeau told the press:

“It’s bringing the laws of the land up to contemporary society I think. Take this thing on homosexuality. I think the view we take here is that there’s no place for the state in the bedrooms of the nation. I think that what’s done in private between adults doesn’t concern the Criminal Code. When it becomes public this is a different matter, or when it relates to minors this is a different matter.”

The bill passed in 1969, and two years later, Everett Klippert was released from prison.

In 1977 Quebec passed its Charter of Human Rights and Freedoms, a quasi-constitutional bit of legislation and the first of its kind to openly ban discrimination on the basis of sexual orientation. Applicable to both private and public parties, the law bans discrimination in access to public spaces, contracts or refusal to enter into them, housing, and employment on the basis of many grounds including sexual orientation. The Quebec Charter also grants equal recognition, and bans harassment, and the distribution of discriminatory notices, symbols, or signs.

In 1978 Canada’s immigration laws were modified so homosexuals are no longer inadmissible.

In 1992, the ban on gays in the military was lifted. A few years later, in 1999, the Supreme Court of Canada ruled that same sex couples are entitled to the same benefits and under the same obligations as opposite-sex couples for the social programs they contribute to.

In the summer of 2005, Paul Martin’s government successfully passed Bill C-38, the Law on Civil Marriage, allowing same sex couples the legal right to marry. Attempts by Conservatives to reopen the marriage debate have failed and continue to do so to this day.

Over the years the Canadian Criminal Code has evolved to include “sexual orientation and gender identity or expression” in its definition of hate crimes. The inclusion of gender identity or expression is a recent addition by Prime Minister Justin Trudeau.

Hate crimes include public incitement of hatred, advocating genocide, and willful promotion of hatred, which carry penalties ranging from six months to five years in prison. In addition, sentencing guidelines for the courts now include the obligation to consider aggravating circumstances that could add to a sentence, including evidence that the crime was motivated by bias, prejudice or hate based on factors that include sexual orientation or gender identity or expression.

As it stands, life for Canada’s LGBTQ people is far from perfect. Many members of the LGBTQ community are still denied access to proper health care in Quebec and people are still being fired for being gay or transgender. Though the election of the orange bigot and the rise in hate crimes south of the border has bolstered support for LGBTQ groups, it has also given hatemongers in Canada the confidence to be more open in their hate.

Some Montreal institutions have to deal with homophobia in their recent past. Several groups have been calling on the City of Montreal and the Montreal Police (SPVM) to apologize for violent raids on gay clubs and parties in the 70s, 80s and 90s and just this year Projet Montreal City Councillor Richard Ryan and his party joined them. The raid on Sex Garage in 1990 was what sparked the movement that would ultimately lead to Montreal Pride.

Quebec launched initiatives in 2013 to fight homophobia, however queer people are still glared at in public for simply being themselves. Unfortunately, the one law that would firmly entrench LGBTQ rights – our constitution – still does not include protections for them, and partisan politics and the Quebec notion of us vs them where the rest of Canada is concerned will keep these protections from ever happening.

Protections for LGBTQ people are there but they could be a whole lot better.

This Pride, let’s do what the haters hate most – be out and proud and open and fabulous, while still firmly pushing for those changes Canada so desperately needs.

LawNews

At the end of May it came to light that Karla Homolka, the Barbie of the Ken and Barbie Killers, was volunteering at her kids’ elementary school in NDG. Outrage erupted with some saying that Homolka was entitled to her privacy at least for her children’s sake, while others said that the nature of her past crimes should disqualify her from ever being around children.

For those of you unfamiliar with Homolka’s story, Karla and her husband Paul Bernardo went on a rape, torture, and murder spree in the early nineties. Her victims were all underage girls – Leslie Mahaffy, age 14, Kristen French, age 15, and Tammy Homolka, Karla’s own sister, age 15. Karla and her husband were eventually caught in 1993 and in exchange for a plea deal, she sold out her husband who is now serving life without parole.

In order to get this plea deal, she had to rat on Bernardo and convince the prosecution that she was a hapless pawn in his plan to rape, torture, and kill. Some time after the deal was struck a tape surfaced of the crimes demonstrating that Homolka was not only not a victim of Bernardo, but was a willing participant in the crimes.

She was released from prison in 2005.

This article is not just about Karla Homolka, though there should be no question that while her kids are certainly entitled to their privacy, she who raped, tortured, and murdered three girls should never be trusted around other people’s children.

This article is about our parole system.

Parole is a kind of conditional release from prison in which an offender can serve out the remainder of their sentence in the community.

The rules regarding parole in Canada are governed primarily by the Corrections and Conditional Release Act and the Canadian Criminal Code. The purpose of the Corrections and Conditional Release Act is to ensure that prisons are safe and humane and by assisting in the rehabilitation and reintegration of offenders so they can become law-abiding citizens.

The Act’s section on parole starts with reiterating that the purpose of any kind of conditional release is to ensure a just and safe society by making the best decisions regarding the timing and condition of release in a way that will best suit this purpose and the goal of rehabilitation.

The Parole Board of Canada (PBC) is the federal body with almost exclusive authority to grant parole. The Act allows for provinces to set up their own parole boards for offenders sentenced to two years or less, though only Quebec and Ontario currently have them.

The PBC can not only grant parole, but can also revoke it, or cancel a decision to grant it.

The Parole Board has to base their decision to grant parole on several factors including “the nature and gravity of the offence, the degree of responsibility of the offender, information from the trial or sentencing process and information obtained from victims, offenders and other components of the criminal justice system, including assessments provided by correctional authorities.”

Their decisions also have to be consistent with the protection of society.

Parole is granted only if the Board is convinced an offender will not pose a risk to society by re-offending if released from prison before their sentence is up, and if the release of said offender will actually facilitate the protection of society via their rehabilitation into a law-abiding citizen.

There are two types of parole in Canada.

Full parole means a person can finish out their sentence in society provided they obey certain conditions designed to keep them from re-offending and report regularly to a parole officer. Offenders in Canada automatically become eligible for parole by serving one third of their custodial sentence, with the exception of those sentenced to life without parole. Those offenders are only eligible after a number of years specified in their sentence.

Day parole means an offender can work or participate in community activities but have to go back to prison or a sort of residence at night. As per the act, an offender is typically eligible for day parole when they reach the date of eligibility for full parole.

Once a person is released and have completed their parole, they can theoretically get on with their lives, but that’s not as easy as it seems. Ex-cons often have difficulty reintegrating into society, and these difficulties often lead to recidivism. Fortunately, there are legal protections in place for former offenders. The Quebec Charter of Human Rights and Freedoms, which applies to both private and public entities in Quebec, forbids discrimination, stating:

“No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence.”

The question at the end of the day is does criminal rehabilitation work?

*Eve, who served four months for conspiracy to traffic narcotics and has since been pardoned, thinks that likelihood of rehabilitation depends a lot on the character of the offender and that the system is ineffective in determining who is a danger. She believes that Karla Homolka got off too lightly but accepts it because it resulted in Paul Bernardo’s life sentence. Though she pities Homolka’s children, Eve thinks that like any pedophile, Homolka’s crimes mean she’s not entitled to her privacy.

Rape, torture, and murder are three of the most heinous crimes there are. Any rate of recidivism for these kinds of crimes is cause for alarm, so while most ex-cons like Eve deserve to have their crimes forgotten, Karla Homolka most certainly does not.

*Name changed for privacy reasons

LawNewsPolitics

On June 1st, 2017, Premier Philippe Couillard announced that the time has come to reopen the constitutional debate in Quebec. The response across much of Quebec and Canada was: WHY?

As it turns out, the announcement is merely a confirmation of a promise Couillard made in 2013 when running for leadership of the province. Back then he boldly said he planned to get Quebec to sign the constitution by Canada’s 150th anniversary. As it stands, Quebec has never signed the Canadian constitution. In order to understand why, we need to go back in time.

(The story is a long one, so apologies to any history buffs who feel that vital information is missing.)

Before 1982, Canada’s constitution remained in London and only the British government could amend it. However, the act of getting permission from Great Britain became a purely symbolic act as Canada and other former British colonies asserted their independence. All Canada had to do was ask the British to amend their constitution and the crown would rubber stamp their request. Nonetheless, in the late 1970s and early 80s, Prime Minister Pierre Elliott Trudeau, father of our current prime minister, came up with a plan to bring Canada’s constitution home.

Trudeau’s plan consisted of repatriating the constitution, modifying it by entrenching his charter of rights, what we now know as the Canadian Charter of Rights and Freedoms, and establishing an amendment formula. In order to do so, he got provincial leaders together, one of whom was the father of the Quebec Sovereigntist movement, René Lévesque.

The goal was to get the provinces to agree to Trudeau’s plan. At the same time, the Prime Minister put the question of what was allowed to the Supreme Court in a case we now know as the Patriation Reference.

The Supreme Court had to answer many questions, but the main one was whether Ottawa was bound by law to get the consent of the provinces to amend the constitution. The Court said no.

Quebec wanted recognition of itself as a distinct society, a veto over constitutional amendments, as well as an opt out clause that would allow provinces an out of certain aspects of the constitution with some kind of compensation so they would not have to pay for any federal actions that were not in their interests. Lévesque and Quebec were denied, and the constitution was repatriated and entrenched without Quebec’s consent.

Two more attempts were made to get Quebec to sign the constitution, but both failed. As it has never consented to the current constitution, Quebec remains bound by it only because it remains part of Canada.

With Couillard’s announcement came the release of a two hundred page document outlining his government’s vision for Quebec and its place in Canada. The document cannot be called a plan because it sets no timeline for Quebec to sign and no step by step procedure his government would want to use.

The document has a lot of words, but says nothing of value.

It asserts the Quebecois identity as “our way of being Canadian” but when it comes to identifying the people of Quebec, the text limits them to four groups: French speakers, English speakers and the First Nations and Inuit. Allophones such as the Jews, the Greeks, the Italians, Eastern Europeans and the Asian communities who helped to build Quebec are almost completely left out.

The only time Allophones are mentioned in the text is in the context of “interculturalism” and “integration” which, when put together, sound dangerously like assimilation. Since Quebec policy treats Allophones as potential Francophones by making their children go to French school, this is hardly surprising. The text also fails to address the growing problem of Xenophobia in Quebec, which begs the question as to whether the document’s definition of the English Speaking Quebecois refers exclusively to white English-speakers in the province.

What Couillard’s document does do is reiterate what Quebec wants from a relationship with Canada as party to the constitution:

  • Recognition of the Quebec Nation
  • Respect for Quebec’s areas of jurisdiction
  • Autonomy
  • Flexibility and asymmetry
  • Cooperation and administrative agreements
  • Shared institutions

This is all sealed together with the assertion that Quebec’s “full and complete participation in Canada” must come from a “concrete and meaningful recognition” of the province as “the only predominantly French-speaking state in North America and as such, heir to a rich and unique culture that must be protected, supported, and developed.”

Couillard’s plan to reopen the constitutional debate has been met with mixed feelings.

Bloc Québecois leader Martine Ouellet acknowledges that it’s a political move but welcomes it as an opportunity to reopen discussions about Quebec sovereignty. Though the Parti Québecois has decided to put aside the issue of sovereignty for the time being, leader Jean-François Lisée commended Couillard for acknowledging the need to address Quebec’s place within Canada. Prime Minister Justin Trudeau has more or less said it’s not a topic to be reopened, while Amir Khadir, an MNA for Québec Solidaire, claims it’s a ploy by the Couillard government to deflect attention from the scandals surrounding the Premier and his party.

It is Khadir’s interpretation of Couillard’s move that seems the most plausible. A simple Google search of Couillard’s name with the word “scandal” will reveal much about the shortcomings of his government. There is everything from the arrest of deputy-premier Nathalie Normandeau for corruption, to Quebec Health Minister Gaetan Barrette’s mismanagement of our health care system and Barrette’s defensive victim-blaming, to the police surveillance scandal, to the Bombardier executive bonus scandal available to learn about online. With his government up for reelection next year, there is much Couillard needs to deflect attention from.

Let’s not take the bait, and keep our eyes where they belong: not on a can of worms that should not be opened, but on the government holding the can opener.

LawMediaNews

Until the recent election of the Orange racist misogynist, the public seems to have had mixed feelings about the press. On the one hand, people use it as a means of achieving justice via social pressure and shaming when our legal system fails them. On the other hand you have people unreasonably targeted in the court of public opinion thanks to the press and social media, ruining their lives before the courts can decide their innocence, liability, or guilt. On top of that, news websites are covered with politically or corporate sponsored pieces masquerading as real news that claim to be offering sound advice and information when they’re really just pushing products or agendas no one needs.

It is in this new age of juggling fake vs. real news that we as a society need to take a serious look at what real journalism is, and the laws and ethics of those who practice it.

The simplified definition of journalism is the occupation of a diverse bunch of people who write, edit, and distribute electronic, print, and audio visual material on subjects of public interest. People think of journalists as strictly doing the news, but most news websites have everything from the news, to animal sob stories, to entertainment stuff, to insight on fashion and tech trends to ranty editorial pieces.

That said, though the press is universally recognized as playing an important role in any healthy democracy, there is little in Canadian law explicitly protecting its members. Journalists are widely considered to be the watchdogs of our democracy, calling bullshit and demanding justice before everyone else, but there’s no special law guaranteeing their rights.

Most of the rights of journalists come from the Canadian Charter of Rights and Freedoms. In Quebec, the Charter of Human Rights and Freedoms and the Civil Code, and in the rest of Canada, case law.

In the Canadian Charter of Rights and Freedoms, we have article 2(b) which guarantees freedom thought, belief, opinion and expression, including freedom of the press for everyone.

In the Quebec Charter, we have sections 3 and 9. Section 3 is a lot like 2(b) of the Canadian Charter in that it protects freedom of opinion and expression. Section 9 protects our right to the non-disclosure of our confidential information.

Last but not least in Quebec, we have civil law, written into our Civil Code and Code of Civil Procedure. The rule is that any evidence found to be obtained under circumstances that violate someone’s fundamental rights and freedoms can, to a certain discretionary degree, be rejected by the courts.

Journalists’ fight to protect their sources is one of the more frequent issues that come up before the courts, forcing our justice system to define the rights of the press outside of any definitive legislation.

In 2010 in Globe and Mail v. Canada (Attorney General), the Supreme Court was asked to come up with a way of deciding under what circumstances a journalist should be made to reveal their source.

Anonymous sources are extremely important for societal watchdogs as it allows them to get information from people in circumstances where their job, their reputation, or their lives would be jeopardized by publicly sharing the information themselves. On the other hand, you have the right of the authorities to know where important information is coming from in order to successfully resolve a criminal investigation, and the right of lawyers to have access to information and people in order to successfully defend their clients against criminal charges or lawsuits.

The Supreme Court in Globe and Mail used the Quebec Civil Code and the Canadian and Quebec Charters to come up with the following test as to whether a journalist should be made to reveal their source:

First, one must ask if the evidence resulting from making a journalist answer questions that could reveal their sources would be relevant to the case. If the answer is yes, the courts must consider the following four factors about the anonymous source:

  1. The relationship must originate in a confidence that the source’s identity will not be disclosed
  2. Anonymity must be essential to the relationship in which the communication arises
  3. The relationship must be one that should be sedulously fostered in the public interest
  4. The public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth

In addition to those rules and tests, you have the criminal code and the rules regarding civil liability.

Hate propaganda, public incitement of hatred, and promoting genocide are all criminal offenses in Canada.

If someone causes you damages such as those that could cost you your wealth or livelihood, damages that negatively affected your health, or damages that caused you psychological problems, you are allowed to seek reparations for those damages. People in Canada have successfully sued journalists and media companies for damages because their actions ruined their reputations and/or violated their right to privacy.

Outside the law, the press tends to regulate itself. Lobby groups like the Fédération professionnelle des journalistes du Québec put out codes of ethics for the profession that set out the rules they all should follow. This includes no plagiarizing, making sure to put out accurate information, and making clear distinctions between their personal opinions and the facts they present.

In an age where politicians feel free to accuse the press of undermining democracy, media literacy is more important than ever. We have a responsibility to keep our eyes open for the thinly veiled sponsored pieces and the ranty conjecture masquerading as fact.

Journalists who expose this to us are more important than ever and we need more rules to protect them. Politicians may not like reporters, but without them there’d be no democracy, and no one would know who they are. As Oscar Wilde once said:

“The only thing worse than being talked about, is not being talked about.”

Let’s keep the press free, so they can keep talking.

* Featured image by Pete O’Shea via Flickr Creative Commons

LawNewsPolitics

On March 23, 2017, M- 103 on “Systemic Racism and religious discrimination” passed in the House of Commons. The motion was introduced by Iqra Khalid, a Liberal MP from Mississauga Ontario and is considered to be Canada’s anti Islamophobia motion, though it has little worth beyond its symbolism.

The motion met opposition on both sides.

On the one hand you had white supremacists using the good-old “slippery slope” argument in which they claimed that passing the motion was one more step towards forcing Canada under Sharia Law. On the other side you had liberal Canadians – secular and religious, white and people of colour – decrying the gesture as being frivolous.

The motion is not a law.

The motion uses convoluted wording demanding that the government “condemn Islamophobia and all forms of systemic racism, and religious discrimination” when the motion has no power to do so. Believed to be a politically motivated act to get some pats on the back in wake the Quebec City Mosque massacre, the motion is also completely redundant.

Canada has a lot of protections against discrimination, and they’ve been in our legal system at least thirty years.

First, there’s the Canadian Charter of Rights and Freedoms, the brain child of the late Prime Minister Pierre Elliot Trudeau when he repatriated our constitution from Great Britain in 1982. The Canadian Charter is entrenched in our constitution, which means that it has primacy over all other laws in Canada and any law deemed to be incompatible with it can be struck down.

The Canadian Charter lists our fundamental freedoms which include those of conscience and religion, of thought, belief, opinion, and expression, and freedom of peaceful assembly and association. It also contains our legal rights to life, liberty, and security of the person, and to equal protection before law without discrimination based on race, sex, national or ethnic origin, colour, religion, sex, age, or physical disability.

The Charter only applies to government entities which include everything from Citizenship and Immigration Canada to public schools to hospitals. If a law is discriminatory, the Canadian Charter allows us to go to court to seek redress for the discrimination. Once one side proves the violation it’s up to the government to prove that the law is within reasonable limits as per the Charter’s main failsafe that allows legislation to survive in spite of itself because the ends justify the means.

Then there’s the Quebec Charter of Human Rights and Freedoms.

Enacted in the 1970s, the Quebec Charter applies to both private and public entities. The Quebec Charter prohibits discrimination based on race, sex, colour, pregnancy, sexual orientation, civil status, age, religion, political convictions, language, ethnic or national origin, social condition, disability and the use of any means to ease it.

The Quebec Charter not only prohibits harassment based on those grounds, but also has provisions against discrimination in everything from access to public spaces, employment, and housing. It also prohibits the distribution or publication of notices, symbols, or signs authorizing discrimination. People whose rights have been violated as per the Quebec Charter can also seek redress via the courts and the Quebec Human Rights Commission.

Last but not least, we have the Canadian Criminal Code.

The Criminal Code has laws about hate propaganda and public incitement of hatred. Publicly advocating for genocide could result in a prison term of up to five years. Publicly inciting hatred and willfully promoting it in a circumstance other than in a private conversation could result in up to two years in jail.

Perhaps the most significant way our Criminal Code punishes hate crimes is via its sentencing guidelines. When the court must determine the sentence of an offender, it must consider a bunch of aggravating circumstances in order to decide whether to give the maximum or not. The first of these aggravating circumstances is:

“evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,”

Since our laws already punish hate crimes, what is it that the federal government could do to further fight racism and discrimination?

Here are a few ideas that would have greater impact than any frivolous motion at a time in which Canada’s visible and religious minorities are asking for more than symbolic acts to prove the government will protect them.

First, the federal government should make transfer payments to the provinces for education conditional in part on the inclusion of a history or social studies course at the primary or secondary level about Canada’s different cultural and religious communities and their contributions.

It is widely acknowledged that racism is a learned behavior. Education is the key to enlightenment and such a course could prevent kids from becoming hate mongering adults while giving provinces the funds to create the curriculum and fix existing courses that leave people other than the French and English out of Canadian history.

The federal government should also demand that the Implicit Association Test be mandatory for law enforcement as part of their entrance exams.

The Implicit Association Test was created by Harvard University and is useful for determining people’s hidden biases against, for example, a particular ethnicity or gender. Any candidates shown by the test to have strong prejudices against a particular group should be made to undergo training about the groups they’re biased about as a condition for their admission to law enforcement. This would help to tackle racial profiling and police brutality and weed out some of the racists from law enforcement.

Candidates for judicial appointments should be subjected to the same test as a condition of their appointment. Strong negative biases would result in mandatory training as a condition of their appointment. This would not only help with discrimination towards religious or visible minorities, but would also prevent judges like former Judge Robin Camp from ever hearing a rape trial.

Last but not least, the federal government could increase its support for organizations that actively fight discrimination. The Center for Research-Action on Race Relations would be a good one to start with.

Talk, like that in Motion 103, is cheap. The need for symbolism is over. It’s time the government took real action against hate.

CultureLawWeb & Tech

On March 15, 2017 the US Department of Justice announced that they were laying charges against four people accused of hacking four hundred Yahoo email accounts in 2014. Two of the accused are Russian intelligence officers and a third was in the US but has since fled to Russia. The fourth is one of our own, Hamilton native Karim Baratov, age 22.

Baratov has been roasted by media and law enforcement because he openly flaunted his love of luxury items online. When people asked how he could afford these things, his reply was that he was providing online services.

In the court of public opinion, it sounds like Baratov is guilty of the crimes he’s accused of, even though “online services” could mean everything from sexy video chats to tech support.

This article is not about Baratov. He is currently in jail awaiting his bail hearing in April and plans to fight his extradition to the US where he would face charges of conspiring to commit computer fraud and abuse, conspiring to commit access device fraud, conspiring to commit wire fraud and aggravated identity theft.

This article is about how we address hacking in Canada.

It should be said right off the bat that not all hacking is illegal. One of the definitions of hacking is writing computer programs for fun, which is not illegal if the programs are harmless.

The other definition of hacking is the one most people are most familiar with, which is the act of getting into a computer illegally.

Though it’s never called hacking in the Canadian Criminal Code, the section dealing with the crime is the one used to address mischief. That’s right; the laws against hacking are in the same place you find the law punishing leaving flaming bags of poop on doorsteps on Devil’s Night.

The crime of hacking in Canadian law is called “Mischief in relation to computer data” and is defined as willfully:

  • Detroying or altering computer data
  • Rendering computer data meaningless, useless or ineffective
  • Obstructing, interrupting or interfering with the lawful use of computer data
  • Obstructing, interrupting or interfering with a person in the lawful use of computer data or denying access to computer data to a person who is entitled to access to it.

The punishments are the same as for any other kind of mischief crime. If the act put a life in danger, you’re liable to spend life in jail. If the crime caused damages worth five thousand dollars or more, it’s an indictable offense with a maximum sentence of ten years in jail or a summary conviction which would mean six months in jail or a five thousand dollar fine. If the value of the damage was less than five thousand dollars, you’re facing either a summary conviction or an indictment with up to two years in jail.

Like many crimes, hacking is often done with intent to commit other crimes like fraud, theft, and unauthorized uses of credit card data. A person guilty of hacking could therefore also be found guilty of additional crimes, some of which – like fraud – carry stiffer penalties than mischief.

Canadian law also holds a person responsible if they counseled or made it easier for someone else to commit a crime and they can face the same penalty as the perpetrator who actually did it. They can also face those penalties if they knew or should have known the crime could be committed as a result of their actions or lack thereof.

Though Canadian governments have been criticized as being ill equipped to tackle computer crime, the government seems to be doing its best not only to protect itself from cyber-attacks but also to teach us to protect ourselves.

In 2010, the Harper Government launched the Cyber Security Strategy outlining a long term national plan to deal with computer crime. The website getcybersafe.gc.ca was created by Public Safety Canada and is full of guidelines for ordinary citizens and businesses with the goal of keeping Canadians safer by increasing awareness of common online threats and how to fight them. The Canadian Anti-Fraud Center was created by a joint effort by the RCMP, Ontario Provincial Police, and the Competition Bureau to fight mass marketing fraud online and is regularly updated with information regarding popular scams.

Technology is advancing at a greater pace than ever and our governments are trying to catch up to protect the victims. The problem with their initiatives is that they seem to place most of the pressure to protect against cybercrime on potential victims, which could lead to victim-blaming even in cases where, due to age or infirmity, a person may not be tech savvy enough to take every precaution. Their plan needs work to put the onus back on law enforcement to protect against cyber-crime back on those charged with protecting us, but at least it’s there.

CultureLawNews

In movie treason trials, a person facing a cruel, usually male, judge and screaming prosecutors is accused of betraying their country while they plead innocence and national loyalty. Sometimes the trial will end in a hanging, other times it will end by firing squad, and still others end with electrocution. Rarely is the accused set free.

In real life, treason cases are a lot more complex.

Despite the enhanced vigilance of Canadian and American law enforcement in the face of terrorism, people are rarely prosecuted for treason.

Since Canadian and American criminal laws have their roots in the British legal tradition, it’s time to look at how we and our southern neighbors define the crime and how it should be prosecuted.

In Canada, treason is defined in our Criminal Code.

There are two types of treason: regular, called simply treason and high treason.

High treason is defined as committing one or all of the following acts if you are a Canadian citizen:

  • Killing or attempting to kill the Queen (Canada’s de jure head of State) or causing bodily harm leading to her “death or destruction”
  • Maiming, wounding, imprisoning, or restraining the Queen
  • Making or Preparing for War Against Canada
  • Assisting an enemy at war with Canada or assisting any armed forces Canadian forces are fighting regardless of whether those armed forces are at war with Canada

Treason is defined by one or all of the following acts:

  • Using force or violence to overthrow the Canadian government or the government of a province
  • Communicating “without lawful authority” scientific or military information or sketches, plans, or documents of a scientific or military character that you knew or ought to have known could be used by an agent of another state against Canada
  • Conspiring to commit the above and manifesting an intention to go through with it via an overt act
  • Conspiring to commit high treason and manifesting an intention to commit it by an overt act. Conspiring with a person to commit treason is considered an overt act.

The law not only defines the crime itself and the penalties, but also who can be convicted of either kind treason and under what circumstances.

According to the Criminal Code, the rules on treason apply to Canadian citizens.

A crime of high treason can be committed while in or outside of Canada, as can acts of regular treason.

A conviction for high treason carries the penalty of life in prison.

The penalty for regular treason is a bit more complex.

If you’re convicted of using force or violence against Canadian government or province with the intent to overthrow it, it’s life in prison. The penalty is the same for communicating military or scientific information, documents etc. knowing or having ought to know that they could be used by another country or even conspiring to do so and manifesting intention to carry it out by an overt act while Canada is at war with that country. If you communicate or conspire to communicate this stuff when Canada is not at war, the penalty becomes a maximum of fourteen years in jail.

The penalties for treason are heavy in Canada as in most countries, so the rules of evidence and procedure are extremely strict in these cases.

Proceedings against people accused of violent attempts to overthrow the government have to take place three years or less after the alleged crime was committed. For overt acts of treason, the words of information expressing the overt act have to be laid under oath before a justice within six days of the alleged overt act, and a warrant for the person’s arrest has to be issued within ten days of that.

There can be no conviction for treason on the evidence of only one witness unless that witness’ testimony is corroborated my material evidence.

Only two people in Canadian history have been tried and convicted of treason.

The first is the Métis leader Louis Riel, who was hanged in eighteen eighty five.

The lesser known, Kanao Inouye aka the Kamloops Kid, was responsible for interrogating and torturing Canadian Prisoners of War in Japanese occupied Hong Kong during the Second World War. He was convicted of war crimes and sentenced to death by a British war crimes court, but his lawyer successfully appealed on the grounds that Inouye was a Canadian citizen and therefore could not be considered a war criminal. Inouye was instead tried for treason and hanged by the British Hong Kong Supreme Court in 1947.

In the United States, the laws regarding treason are similar. As the nation was born in defiance of the British Monarchy which had been known to charge people of the crime willy nilly, the crime of treason is clearly and strictly defined in the US Constitution.

Article III, section 3 of the constitution defines treason as:

“…levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

As in Canada, the rules for a conviction on the charge of treason in the US are strict. American law requires the testimony of two witnesses to the crime or a confession in open court to convict someone of treason.

As in Canada, convictions for treason are rare. Most civil war veterans, for example, were granted amnesty by the US government instead of facing treason charges. In some cases, such as that of Iva Toguri D’Aquino, the trials and investigations were corrupt and ultimately resulted in presidential pardons and apologies.

The penalty for treason in the US can be imprisonment or death.

With the implications of treason so heavy, it’s no wonder people are rarely charged with the crime. However, with the revelations of the Orange Administration’s willful conspiring with the Russian government to corrupt their elections and push an agenda hurting the American people, the only question left is whether law enforcement in the south will grow a pair and prosecute those clearly guilty of the crime.

CultureLaw

The holidays are finally over.

It started for most of us with a nerve-racking family dinner and ended with a New Year’s Eve party where we drank away the stress of having to spend too much time with our relatives. Many of us spent the eve of the New Year drunk and partying and it’s likely that at least a third of us engaged in some kind of behavior that night that we now regret. Most of this is not blackmail-worthy, but in a world where lives are ruined by crimes like revenge porn, it’s important to know what laws are in place to protect us.

Revenge porn is the publication of explicit images, videos, or films of a person without consent in a situation where the victim would have a reasonable expectation of privacy. Though revenge porn at its root is used to cause the victim distress, it’s often redistributed by some porn sites for commercial gain.

Fortunately, Canadian law is on it and has been working to tackle this crime.

Before 2014 the people in Canada who distributed intimate photos or videos of others without their consent could only be charged under the Criminal Code’s provisions on voyeurism, extortion, obscene publications, criminal harassment, defamatory libel, and in some cases child pornography. Unfortunately these laws have very specific requirements to get an indictment and conviction.

For example, extortion requires that the intimate material be used as a threat to force the victim to do something. Criminal harassment requires that the conduct make the victim fear for their safety or the safety of a loved one.

Sometimes charging people under these offenses worked, and sometimes it did not.

The people who drove Rehtaeh Parsons, a Halifax teen, to suicide in 2013 were charged with the distribution of child pornography. Parsons hung herself after photos of her being sexually assaulted by four boys circulated through her school resulting in texts and Facebook messages calling her a slut and soliciting her for sex.

Though none of the boys who assaulted her were charged with rape due to insufficient evidence, two of her attackers who filmed her later pled guilty to child pornography charges and were put on probation. Many agree this is hardly a sufficient punishment for people who drove an innocent young woman to her death.

Fortunately in 2014 the Canadian Criminal Code was amended to include article 162.1 regarding the unlawful publication of intimate images without consent.

It defines intimate images as a photo, film, or video where the victim is nude, exposing their genitalia, anal region, or breasts or is engaged in explicit sexual activity in circumstances where a person would have a reasonable expectation of privacy. A trip to the bathroom to use the toilet or shower is an obvious example of circumstances where most people would have a reasonable expectation of privacy.

The new law says that everyone “who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty.”

That means that it doesn’t matter whether the person transmitting the image or video intended to cause the victim harm. All the crime requires is that the person knowingly made the material available and they either knew or were aware of the possibility that the image or video was taken without the victim’s consent and distributed it anyway.

Those guilty of this offense are looking at a maximum prison term of five years. Or if they get a summary conviction, a maximum of six months in jail and/or a two thousand dollar fine.

The law limits the kinds of defenses one can use against such a charge. The motives of the accused are considered irrelevant. The only way to get out of a charge under this law is to either prove you didn’t do it, or prove that your conduct somehow served the public good but did not go beyond the minimum required to do so.

This defense was clearly added to the law to protect journalists and investigators in the execution of their professions. A journalist who snaps and distributes a photo of a politician with a sex worker when the politician is anti-prostitution could find himself charged under this act, but could conceivably argue that his actions were for the good of the public and not excessive.

If criminal charges are not laid in the face of the distribution of a person’s intimate images, in Quebec you can always sue the distributor.

The Quebec Civil Code (“the Code”) guarantees the individual right to privacy and protects people from invasions of their privacy without their consent.

As per the Code, the following are particularly considered invasions of privacy:

  • Entering your home and taking something
  • Intentionally intercepting or using your private communications
  • Appropriating and using your voice or image while you are in a private place
  • Keeping your private life under observation by any means
  • Using your name, image, likeness, or voice for any purpose other than the “legitimate information of the public”
  • Using your correspondence, manuscripts, or personal documents

If your privacy is violated in this way resulting in physical, material, or psychological damages, you can sue the perpetrator. The catch is that lawsuits are costly and invasive and it would mean going public with the extent of the violation you experienced.

The laws in Canada regarding revenge porn and privacy are not perfect, but they’re there. In 2017, let’s protect ourselves and keep the scum of society in check.

LawNews

On October 13th, 2016, Lou Dobbs, anchor of the Fox Business Network’s show Lou Dobbs Tonight, posted a link to the home phone number and address of Jessica Leeds on Twitter. Leeds is one of many women openly accusing Donald Trump of sexual assault shortly after a video surfaced of him bragging about his habit of pawing women without their consent.

The post was eventually deleted, though whether that was done by Twitter, Fox, or Dobbs himself is unclear, and it was already too late. The post was shared at least eight hundred times before it disappeared from Dobbs’ Twitter feed. When he was called out on what he did, his apology was nothing short of pathetic, Tweeting simply:

“My Retweet, My Mistake, My Apology to Jessica Leeds,” the subtext being that the only thing he is sorry for is that people called him on it.

This article is not about Lou Dobbs.

It is not about the fact that his tactics prove him to be nothing but a poor journalist. If Dobbs is resorting to posting Jessica Leeds’ home address and phone number in order to incite Trump followers (who are known for their violent behavior) to attack and threaten her into silence, it is because he is incapable of refuting her claims with researched facts. It is not about the fact that he has helped turn Trump’s campaign into the ugliest in history.

This is not about him. He, like the Republicans’ offensive excuse for a presidential candidate, has had enough attention.

doxing-flandersThis is about doxing.

Doxing is the publishing of the personal information of an individual on the internet, usually without their consent, in order to cause the victim distress, fear, embarrassment, and shame.

According to Danielle Citron, law professor at the University of Maryland and author of Hate Crimes in Cyberspace, the victims of doxing are primarily young women who are stalked online with threats of rape and sexual humiliation with the intent of silencing them and forcing them offline. It is a tactic commonly employed by Men’s Rights’ Activists (MRAs) who do it to anyone criticizing their fight to have raping women legalized worldwide.

One MRA who visited Montreal and was publicly shamed for tarnishing our city with his presence has encouraged the practice among his followers in an attempt to scare off his critics. When he himself was doxed, he suddenly became against it, at least for himself.

Though Canada has no specific law criminalizing doxing, our existing laws fill this void just fine when you think about what the act entails.

People post home addresses, phone numbers, credit card information, and private email addresses with the intent that someone other than them will see it and steal, harass, and threaten death, rape, or worse.

Fortunately, in Canada we have section twenty two of the Criminal Code which says that anyone who counsels someone to commit an offense is considered party to said offense. That means that if you encourage someone to commit a crime, you are considered as guilty of the crime as the person who actually did it even if they did it in a way other than the one you recommended. That also means that you are subject to the exact same penalties.

Let’s say you post a woman’s home address on social media and say that she should be raped. That night someone sees your post and goes and rapes her. If the rapist convinces the authorities that they got the idea from your social media feed, you might be charged with rape and face the same five or fourteen year prison sentence (depending on the degree of violence involved) as the rapist.

If you post a person’s private email address and phone number and encourage your followers to make death threats, rape threats, or threats of bodily harm, and they do it, you’ll be looking at the same eighteen months to five years as the people making the threats.

In order to get the same penalty, the prosecution would have to prove beyond a reasonable doubt that you actively and willfully sought to encourage people to commit the crime and that you knew or ought to have known that a crime was likely to be committed as a result of your encouragement.

The laws to punish doxers are already in place. The only thing protecting doxers is police indifference. Reddit Moderator Blake Hebb, for example, had a lot of trouble convincing the authorities to investigate when he was doxed and harassed in 2015.

But hope is not lost.

In the June 2015 ruling of the Provincial Court of British Columbia in Regina v. BLA, a seventeen year old received a custodial sentence of sixteen months plus eight months supervision after he doxed, harassed, threatened, and “swatted” (tricking emergency services and police to send responders based on a false report) female gamers who refused his demands to chat with him and show him their butts.

The laws to fight doxing are there and the authorities are slowly beginning to enforce them. It is up to us to make sure they keep listening. That means reporting every incident and making a big stink if the police and RCMP are dismissive.

Contact the press and shout it from the rooftops if you have to. No more letting predators hide behind their computers unpunished while they get others to do their dirty work. If they encouraged and made it easier for someone to hurt you, threaten you, destroy your property, kill your pets, or steal from you, they are just as guilty as the ones who did it and should be punished the full extent of the law.

CultureLawNews

On September 27th, 2015 Marco Muzzo, the 29 year old son of one of Canada’s wealthiest families and heir to a billion dollar estate killed four people in a drunk driving accident in Vaughan, Ontario. The victims were Daniel Neville-Lake, age 9, Harrison, age 5, Milly, age 2, and their 65 year old grandfather, Gary Neville.

At the time Muzzo was drunk and returning home from a family weekend partying in Miami, Florida. He was driving an SUV at 85 km/h when he slammed into a minivan killing all inside.

Muzzo pled guilty to all charges. The Crown asked that Muzzo be sentenced to between ten and twelve years for his crime, something unlikely to happen given his family’s wealth and prestige. Muzzo will be sentenced on March 29, 2016.

But this isn’t about the difference between the rich and poor in Canada’s criminal justice system. It’s not about how whites and non-whites are treated differently by a system that claims to be unbiased. We know the criminal justice system treats the white and wealthy better.

This article is about drunk driving.

Canada’s drunk driving laws fall under the Canadian Criminal Code which sets out the rules defining criminal behavior and its penalties across Canada. According to article 253, anyone operating a motor vehicle while their ability to operate it is impaired by drugs or alcohol is committing an offense.

If it’s a first offense and no one was hurt, the sentence is a fine of no less than a thousand dollars. For a second offense in which no one was harmed, the punishment is no less than thirty days in prison. For every subsequent offense, the penalty is a minimum of a hundred and twenty days in jail. The maximum sentences in these cases can range between eighteen months and five years in prison.

Marco Muzzo (right) leaves the courthouse (image: Canadian Press)
Marco Muzzo (right) leaves the courthouse (image: Canadian Press)

The sentence for drunk driving is far greater if someone other than the driver is hurt. If your drunk driving results in bodily harm to another person, you’re looking at a sentence of up to ten years imprisonment. If your blood alcohol level is higher than the legal limit and the accident resulted in bodily harm to another person, you could also be looking at a maximum sentence of ten years.

If your drunk driving resulted in the death of another person you’re looking at life in prison. The same applies if your blood alcohol level was above the legal limit when the accident killing the other person occurred.

If you’re an alcoholic or a drug addict and a medical report says you’re in need of rehab, the law allows for some mercy from the courts, which can discharge a person on the condition that they undergo treatment for the addiction.

If you’re operating a motor vehicle – in motion or not – and you’ve got more than eighty milligrams of alcohol in your system for every hundred milliliters of blood, you’re considered to be above the legal limit. The authorities will figure this out through a breathalyzer test and they can do it if they have “reasonable grounds” to suspect you have alcohol or drugs in your system and drove in the past three hours.

They can also make you do a physical coordination test. Fail the test and the officer can request urine and blood samples to confirm or refute their suspicions. If you refuse to provide the requested samples you’re committing an offense for which the penalty varies depending on the severity of the accident.

If you knew or ought to have known that your operation of the vehicle resulted in an accident causing death and you refuse to do a breathalyzer test or provide any requested samples, you’re looking at the same sentence as if you were convicted of killing someone while driving drunk. The same goes if you refuse to provide samples when you knew or ought to have known that your impaired driving caused bodily harm.

If your blood alcohol level was above one hundred and sixty milligrams of alcohol in one hundred milliliters of blood at the time of the offense, the court will consider it an “aggravating circumstance” which could add to your sentence.

The rules regarding sobriety and legal blood alcohol limits are extremely problematic.

They set a standard without taking into account certain biological facts.

Like the fact that men and women digest alcohol differently.

Men are able to drink more than women not only because their larger size means more blood and less body fat, but also because they have a higher concentration of an enzyme called dehydrogenase which breaks down alcohol in the system. Women on the other hand are generally smaller, have more body fat, less dehydrogenase and experience hormonal changes more often resulting in a lower alcohol tolerance.

There is also the size factor to consider. A larger, heavier person is going to be able to handle a lot more alcohol than a smaller, skinnier one. That’s not only science, it’s common sense.

Everyone is different when it comes to alcohol’s effects. Some of us have higher tolerances, some lower, and there are others who are more affected by alcohol due to the medications they are taking. There are plenty of drugs, over the counter and prescription that warn consumers not to use them with alcohol mostly because the medicine will reduce their tolerance.

Canadian law sets one standard for determining guilt for some drunk driving charges even though the prohibited blood alcohol level is not a fair indication of impairment. The laws in place were most likely chosen by experts who convinced legislators that it was the only objective way to prove a driver was drunk. The problem is that technology has yet to come up with a better test, so for now it’s best to err on the side of caution and avoid alcohol altogether when driving.

If you drive, drive dry.

* Featured image by James Palinsad via Flickr/Creative Commons

NewsPolitics

Those who read my blog posts on the federal government will know that there is a certain theme that seems to re-occur in many of them. This theme can basically be summed up as the sad history of American meddling in what is regarded by any self-respecting country as their internal business.

In the same vein, we have the tragic case of Marc Emery, Canada’s legendary Prince of Pot. Emery has been serving his sentence in a US prison for the past three years for various conspiracy charges (including money laundering, distribution of an illegal substance, etc.).

Ever since those HEADY days (sorry, I couldn’t resist) that Emery, a libertarian crusader for the legalization of pot, opened his head shop in Vancouver back in ’94, he has been persecuted relentlessly by Canadian authorities, often on behalf of our morally conflicted (see 2012 legalization of the herb in Oregon & Colorado), drug obsessed neighbours to the south. Emery is just one of many victims of US hysteria over the massive amount of BC Gold that crosses their shared porous border (often illegally) with Canuckistan.

Last week on Parliament Hill, a handful of brave MPs (though not Justin, sadly) took a public stand in solidarity with Emery (Marc’s politically engaged wife Jodie organized the rally) called upon Public Safety Minister Steven Blainey to sign his extradition papers so that Emery can serve the remainder of his sentence here in Canada, closer to his family and friends. But since we are dealing with the same pro-US right-wingers who extradited him to the U.S. in 2010 to defend himself against this farcical case in an American courtroom in the first place, no one is holding their breath.

The irony is that Emery’s so called crimes (he freely admits that he sold seeds through the mail all over the US but maintains that virtually all the profits went towards his international campaign to legalize it) were never serious enough for the Canadian law to intervene, until they faced growing pressure from Uncle Sam (specifically the Drug Enforcement Administration) to turn him over to the gringos. In effect, we are looking at an egregious legal double standard here folks.

There can be little doubt that Emery’s arrest was motivated by politics more than anything else based on what the Yank police were saying about the case at the time  (read the DEA’s statement on his arrest). This isn’t just a grave miscarriage of justice, in other words, it is a question of Canada’s legal obligation to respect the rights of its own citizens and ensure that it protects its own legal sovereignty against growing infringement by the US, even if that means upsetting that elephantine State we live next to.