On June 28, 2012 the federal government gave royal assent to a new law that expands the power for ordinary Canadians to make a citizen’s arrest, and that streamlines the provisions regarding defending oneself and one’s property.
So what exactly are these changes, and what do they mean for the average Canadian?
The new law, Bill C-26 (also known as the “Lucky Moose Bill” – more on that later) amends s.494 of the Criminal Code of Canada. Under the old law, ordinary citizens could only arrest someone if they found a person actually committing a criminal offence. This requirement for the offender to be caught red-handed is what had been the stumbling block in a widely-publicized 2009 case out of Toronto. In that case, David Chen, the owner of the Lucky Moose Food Mart (there’s the link!) spotted a man coming towards his store and recognized him as having previously stolen some plants. Chen and two employees chased the accused, caught up to him a short distance away, grabbed him, tied him up, and threw him into their delivery van so that they could hold him until the police came. Instead of being hailed as heroes, however, Mr. Chen and his employees found themselves arrested and charged with assault and forcible confinement (they were ultimately acquitted, although only after first refusing a plea bargain that sought to have them admit to lesser charges).
Under the new law, Mr. Chen would likely fare better. The new law allows citizen’s arrests not only while the offence is being committed, but within a “reasonable time” after the offence if the citizen making the arrest believes “on reasonable grounds” that it is “not feasible” for police to make the arrest. In short: there will now be more latitude in the manner and timing of making citizen’s arrests, as long as the actions in question are seen by the courts as being “reasonable” under the circumstances. However, law enforcement must still be contacted as soon as possible afterwards.
The new legislation also pulls together a number of Criminal Code provisions that dealt with the defence of personal property. More specifically, the new law allows those who are in “peaceful possession” of property to take reasonable steps to protect that property from persons entering the property when they are not allowed to do so, or from stealing or damaging that property. Again, the actions taken must have been reasonable in the circumstances.
The next question that arises is, naturally, what does “reasonable” in the circumstance mean? Although there is no definite answer to that question, the new law does set out a list of factors which the court may take into account in determining what is reasonable. These factors include: the nature of the force or threat; whether weapons were involved, whether the threat was imminent; the role of all parties involved in the incident; the prior relationship of all the parties if any; the age, size and gender of the parties; and the proportionality of the response.
The result: this is not a carte blanche for vigilantism, but, hopefully, it will help make us all safer and result in fewer victims finding themselves facing criminal charges.
Remember, though: keep it reasonable!
For information regarding the reasoning behind the new law, see the legislative summary.
Teachers Talk LawNow – Corporate Social Responsibility
LawNow magazine is an incredible resource for teachers. Each issue offers engaging articles about law in language suitable for students. Teachers Talk LawNow is a series of lesson plans for teachers based on these articles.
LawNow Articles:
- What is Wrong with Corruption? – Peter Bowal and Christopher Bowal
- The Ethics of Corporate Social Responsibility- Janet Keeping
- Lessons Learned from the British Petroleum Disaster – Jeff Bone
- International Corporate Political Corruption: the Case of Niko Resources Ltd. – Peter Bowal and Joshua Beckie
- Chevron Corp. v. Naranjo: Goliath’s Global Anti-Enforcement Injunction against David – The Court, an initiative of the Osgoode Hall Law School.
These articles provide the opportunity to explore a wide range of topics including transnational corporations, environmental law, government regulation, and free market economies. The articles can be approached from a variety of perspectives. For example, they can be studied within the context of globalization or with a greater emphasis on economics. The articles could also be used to create a unit in language arts that concludes with a persuasive essay.
Jigsaw Activity
1. Divide students into five groups and provide them with one of the articles listed above. Each group will create a summary of their article based on a guiding question drawn from your lesson objectives. For example:
- What are some of the undesired consequences of free markets and how can governments, corporations, and companies limit them?
- What relationship, if any, does economic and political globalization have with corruption?
2. When the groups have finished their summaries assign the members of each group a number between one and five. Create new groups using these numbers. Students will then teach their new group about the article they helped to summarize.
3. When the group activity is complete, students will then work independently on a writing assignment. The guiding question from the beginning of the lesson can be used as the topic for a formal essay.
Extension Activities
The project could also be supplemented with a film study. Some suitable documentaries with similar themes include:
- Bananas!;
- Capitalism a Love Story;
- The Corporation; and
- Food Inc.
What exactly is a “constitutional exemption”?
A few days ago, we posted about the BC decision (“the Decision”) that struck down the law against assisted suicide. In that post, we mentioned that Gloria Taylor had obtained a “constitutional exemption.”
So what exactly is a constitutional exemption, and where exactly does a court get the power do that? For that, we have to go back to the Charter and the Constitution Act, 1982.
We start with section 52 of the Constitution Act, 1982, which states that: “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This is what helped the court strike down s.241(b) of the Criminal Code in the first place. However, in the Decision, the court went on to say that s.241(b) would continue to have force and effect for one year. So: s.241(b) is of no force and effect, but, it kind of is, for a year. Clear as mud, right?
This inconsistency then butts up against a different provision of the Charter, namely section 24. Section 24 of the Charter states that: “anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” In other words: if you bring a Charter case and you win, the Court can give you any remedy (i.e.: solution) that fits the case. That could be almost anything, depending on the case. For example: financial compensation, an old job back, or the right to be released from jail.
In this case, given that the law will still have “force and effect” for one year, Ms. Taylor would not be given the remedy she asked for (which, let’s face it, is the only remedy that will make any difference to her). For one whole year, it would still be illegal for a doctor to help her commit suicide. She could still be denied the choice she was seeking at the end of her life.
So – the compromise. We will let Ms. Taylor do it (this is being appealed by the federal government), but no one else (unless they, too, get a constitutional exemption).
Such compromises have been reached in other situations, although many people might not realize that that is what has occurred.
For example: Insite, the Vancouver Safe Injection Site. When Insite was opened in September 2003, it was originally awarded a three-year exemption under section 56 of the Controlled Drugs and Substances Act (CDSA), for scientific and research purposes. This was then temporarily extended a few times. However, the federal government refused to allow Insite to operate past July 2008. As a result, the non-profit society which operated the site brought a court action claiming, amongst many other things, that the drug possession and trafficking provisions of the CDSA (section 4(1) and 5(1)), as they applied to the Insite location, were unconstitutional, because they violated section 7 of the Charter (which guarantees that “everyone has the right to life, liberty and security of the person”). The argument was essentially as follows:
- sections 4(1) and 5(1) of the CDSA apply to possession and trafficking for every purpose without discrimination or differentiation;
- the Insite location is a health care facility with a goal to save lives and treat addiction;
- because s.4(1) and s.5(1) of the CDSA impose an absolute and unqualified prohibition on controlled substances, it prevents access to this health care facility (i.e.: Insite) that reduces or eliminates the risk of death from an overdose and the risk of infectious disease, by persons who are ill with an addiction, thereby violating the right to life and security of the person;
- because users of Insite risk incarceration while seeking health care services, the right to liberty is also violated; and
- because s.56 of the CDSA (which refers to exception for science) should not relied upon as a remedy for a Charter violation.
The judge agreed and declared that s.4(1) was inconsistent with section 7 of the Charter. Naturally, the federal government was given time to rewrite the provisions in order to bring them in line with the Charter, and in the meantime (until June 30, 2009) the law remained in force and effect. In order to be able to continue its operations during this time, and during the appeals processes, Insite was granted a constitutional exemption. The case went to the Supreme Court of Canada (SCC) in 2011, and now, Insite is back to operating under an exemption of s.56 of CDSA. The reason? The SCC found that sections 4(1) and 5(1) of the CDSA are not unconstitutional (i.e. they are ok and can stand as they are). However, the federal government’s act of denying Insite a continuation of the s.56 exemption was in violation of s.7 of the Charter [see paragraph 156 of the SCC decision].
Interestingly, however, the exact extent of the use of constitutional exemptions has not been clearly defined, and there are those that argue that its legal foundation remains precarious.
As an interesting example: mandatory minimum sentences (“MMS”s) in criminal cases. The most topical case on this issue is R. v. Ferguson, which was heard by the SCC in 2008. In that case, Michael Ferguson, an RCMP officer, was accused of shooting and killing a detainee during an altercation with that detainee in a cell at an RCMP detachment. At trial, Officer Ferguson was convicted of manslaughter, a crime that carries a four year mandatory minimum sentence pursuant to s. 236(a) of the Criminal Code of Canada. However, Mr. Ferguson argued at trial that a four year sentence violates section 12 of the Charter, which states that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” But instead of arguing that s.236(a) should be struck down, he asked for a constitutional exemption (i.e.: the 4 year minimum sentence would continue to apply, just not to him). His reasoning – “the minimum sentence prescribed by Section 236(a) of the Code is grossly disproportionate to the particular circumstances of this case.” The SCC did not agree with him. Amongst many other things, the court found that constitutional exemptions for MMSs intruded on the role of Parliament by granting discretion to sentencing judges that they were not meant to have. This about it: the whole point of MMSs is to take away judges’ discretion to make sentencing decisions based on the circumstances of each individual case: if courts start to grant constitutional exemptions, they are taking back that discretion…something they can only really do if the law in question is generally unconstitutional (which was not argued here).
So… are constitutional exemptions now only available in cases like Ms. Taylor’s? That is, as an interim measure when a claimant requires relief from an unconstitutional law while law-makers examine the options for replacing that law (i.e.: where there has been a “suspended declaration of invalidity” under s. 52 of the constitution)? Hard to say. It will be interesting to see where Canadian law goes with this one.
Fascinating stuff, isn’t it, our constitution!
Is assisted suicide now legal?
Not surprisingly, this is a question that we at CPLEA have been asked quite a bit lately.
On June 15th of this year, the British Columbia Supreme Court struck down Canada’s laws against physician-assisted suicide on the basis that it is unconstitutional. In the case in question, Gloria Taylor, a woman suffering from ALS (also known as Lou Gehrig’s disease) asked to be allowed to have a doctor help her commit suicide before she became incapacitated. In making its finding of unconstitutionality, the court also gave Ms. Taylor a constitutional exemption to seek that medical assistance.
So what exactly does all of that mean?
Let’s start with the question of constitutionality. The Canadian Charter of Rights and Freedoms, which is part of the Constitution Act, 1982, protects the people of Canada from certain actions of governmental bodies. More specifically, governments (federal, provincial or municipal) are not allowed to treat people (either through a law or through any other action) in any way that violates the rights and freedoms set out in the Charter. One of these rights (section 15) is the right of every person to be “equal before and under the law” and to have “the right to the equal protection and equal benefit of the law without discrimination” based on various factors. One of these factors is “physical disability”. This is the provision that was applied in this case.
In a nutshell, the reasoning is as follows:
- suicide itself is not illegal;
- as a result, able–bodied people are able to commit suicide (i.e. there is no law that stops them from doing so);
- however, some disabled people are legally prohibited from committing suicide (i.e. those who might need help because they can’t physically do it themselves). The law in question is section 241(b) of the Criminal Code of Canada (“s.241(b)”);
- as a result, disabled people are not equal under the law (i.e. the law specifically prohibits them from doing what able-bodied people can);
- under section 15 of the Charter, that in equality that is not allowed.
The result: s.241(b), the law that says that it is a crime to help someone commit suicide, is unconstitutional and is therefore, “struck down”. What that essentially means is that it is as if s.241(b) is simply crossed off the books – it is as if it does not exist.
So that means the terminally ill can all ask doctors for help, right? Wrong.
Often, when a law is declared unconstitutional, the court has to give the government some time to deal with that fact. Think about all the systems in place, all the official literature on the topic, websites etc. It takes time to prepare for changes in law. Not to mention, the court needs to give the government time to appeal the decision, if it so chooses (and this one already has been). Imagine the back and forth and back forth that could happen throughout the appeal process if law kept being struck down, and maybe reinstated, and struck down again…etc, etc. In this case, the government was given one year to get its affairs in order. For that year, the law remains in effect.
However, leaving it at that would not help Ms. Taylor very much. Not letting her decide her own time of death after she had won her case would not make much sense. As a result, the court granted Ms. Taylor a “constitutional exemption.” This is for her and her alone. In other words, it allows the law to remain in effect (for the one year, as planned), but gives Ms. Taylor the remedy she was seeking. In other words, Ms. Taylor is now free to find a doctor to help her commit suicide (for now anyway, but that is being appealed too). If she does, and that doctor does so during the year that the law technically remains in effect, that doctor will be exempt from prosecution under s.241(b) of the Criminal Code.
So the answer is: no, assisted suicide is not yet legal…unless you are Ms. Taylor.
If you want to read the whole BC decision, it can be found here.
New Issue of LawNow Magazine: Corporate Social Responsibility
The latest issue of LawNow Magazine looks at Corporate Social Responsibility.
Margo Till-Rogers writes in Online Law Column: Resources about Corporate Social Responsibility:
“The concept of corporate social responsibility (CSR) draws together social, environmental and economic concerns with a view to making organizations not only fiscally responsible, but socially responsible. Through community investment, environmental stewardship and ethical employment practices, corporations, government and non-profit organizations demonstrate their commitment to good corporate citizenship.”
Canadian businesses operating around the world are discovering that corporate social responsibility is not only the right thing to do, but also can be good for business!
Our feature articles this issue look at the issue of corruption and the complexity of the ethics of corporate social responsibility. Our contributors dissect three examples: the British Petroleum disaster, the case of Niko Resources Ltd., and the Chevron Corp. vs. Naranjo.
The unique special report looks at where the limits of the law are tested. In “Which Passport Should I Take to the Olympic Games?”, Hilary Findlay discusses legal issues that will arise with new drug testing standards in place for the 2012 Olympics. “Human Trafficking: A Call for Reform” looks at the reality of human trafficking within Canada, and specifically in Calgary, and summarizes research on what has been done and how the law can help counter this terrible crime. Finally, we have “What Ever Happened to… Jim Keegstra”, an example that freedom of expression is not absolute and the content of one’s expression can be criminal. The article also explains how criminal law may be a poorly suited instrument to achieve social control.
Our usual columns round out the issue, including “Employment Law: Avoiding Conflict – 6 steps to keeping the peace”, and Rosemarie Boll’s follow-up to her column in the last issue, “Family Law: Opening Closed Doors – The Downside of Suing your Abuser”.
See the Table of Contents or the Full Issue.
Off-Road but still In-Bounds
Canada Day long weekend can be the perfect time to let loose, and off-roading on an ATV can be the perfect way to do it. But ATVs can be dangerous and there are rules regulating their use. So what are these rules, and what do you need to know before off-roading in your area?
Hunting down information on ATV regulations can be tricky, in part, because the laws governing ATVs vary across the country. For this blog post, we’re going to focus on two levels of government that regulate ATV use in Alberta: the provincial government with the Alberta Traffic Safety Act, and municipal governments with local bylaws. Sometimes the local bylaws will mirror the provincial legislation but sometimes they will not. So what you can do in a city may be different from what you can do in a provincially controlled area.
Definitions are important when it comes to legislation and bylaws. ATVs are known by several different names like quads, off-road vehicles, and off-highway vehicles. However, the definition often used in legislation is “Off-Highway Vehicles” or OHVs.
First off, it is important to know whether you will be riding on private land or public land because the regulations often differ between the two. For example, the Alberta Traffic Safety Act states that a driver can operate an OHV on private land without a license, registration, or insurance. However, if the driver wishes to scoot around on any designated public land then they must have all three.
OHV use is often restricted on public land. The Alberta Traffic Safety Act restricts OHV use on all highways. Their definition of a highway includes any street, road, lane or alley and adjacent sidewalks and ditches. This includes private highways that are ordinarily used by public vehicles.
Some municipalities have chosen to blaze their own trail and have passed bylaws allowing for OHV use on municipal highways. The County of Wetaskawin passed a bylaw in 2010 allowing for OHVs on highways if used for farming, and in 2012 they passed a bylaw for OHVs on highways if used for recreation.
There are also areas of public land that are specifically designated for OHV use such as the “Timeu Creek OHV Recreation Area” which is 40km north of Barrhead.
Knowing where you can ride is only half the battle. The other half is knowing the rules of riding. The rules of riding will often differ between provincial legislation and municipal bylaws. For example, there are no provincial regulations regarding passengers on OHVs but municipalities, like Breton, often have bylaws that limit passengers to the amount the OHV is designated to carry.
Alberta is one of only two provinces without mandatory helmet laws, but some Alberta municipalities have passed their own helmet laws. This includes Parkland County, where the driver and all passengers are required to wear a helmet while on a highway or in a park within the County.
This is only a brief overview of some of the OHV regulations found in Alberta, and it important to take a look at the links provided for further criteria if you will be riding in any of the areas I’ve mentioned. But no matter where you’re going, you should take a look at the Alberta Traffic Safety Act and check with the municipality where you will be riding for any bylaws. You can do this by checking the municipality’s website for bylaw information, or by calling their local Police or RCMP detachment for information. Make sure that you are clear on where you can ride and what rules you have to follow while riding. That way you won’t have to worry about drifting outside the law’s boundaries while enjoying summer sun.
Even More Stuff I Wish I'd Known Yesterday
After I wrote the blog post “Stuff I Wish I’d Known Yesterday,” which was about writing demand letters, I received a few questions. A lot of the questions were the same, so before I find myself repeating “that is not what I meant at all. That is not it, at all” I thought a follow up post would be appropriate. (Free bookmarks to anyone who can identify the quote without using google.)
Let’s go back and think about when you may want to use a demand letter: you did something with someone else, something bad happened, and now you want the other party to do something to fix it. That’s it. If we were to go back to the example of the debt, then basically the situation is this: you loaned money, the other guy didn’t pay you back, and now you want him to pay you by a certain date.
Problem 1
You should not send a demand letter as a first step to getting your money back. Try to talk with the other party first and see if you can come up with an agreement. Sometimes it is true that you can catch more flies with honey than you can with vinegar. A demand letter isn’t a first resort; it’s something you use after you’ve tried being a nice and haven’t gotten anywhere.
Problem 2
Don’t include details that are not important. This is not a confessional; stick to the facts that are relevant, and leave out the stuff that isn’t. What usually matters is that you loaned $500, not that you gave all that money in $20 bills.
Problem 3
Don’t admit things in the letter. Confession may be good for the soul, but it’s not so good when included in a demand letter. Sometimes, a demand letter can be the first step in going to court. That means that you have to be careful what details you include in the letter. Basically, by writing a demand letter, you are telling the other side “look, this is what I want you to do by this date.” If the other party doesn’t think that they should have to do what you want, then it’s up to them to prove why they shouldn’t. Don’t help them by writing down everything single thing you’ve ever done wrong; let them do their own homework.
Problem 4
That being said, don’t lie. Don’t stretch the truth, don’t mix up details, don’t embellish. Stick to the truth and the relevant facts.
Problem 5
Keep the letter short and sweet. If your demand letter is five pages long, you need to edit. Unless you’re a multimillion dollar corporation, your situation should be able to be summed up in a page or less.
Problem 6
Before you send the letter, think about the consequences. If you are sending the letter to someone that you have an ongoing relationship with (for example, someone from your wife or husband’s family), you have to consider what is going to happen after you put the letter in the mail. Are the consequences worth it for you? What if you are only owed a small amount? Is it worth your time to write it and the money to pay for registered mail or delivery? Before you send the letter, think about the worst case scenario and prepare yourself for that to happen. I suppose you could also prepare for the best case scenario (getting the money right away), but in my experience, and to throw around another cliché: hope for the best and prepare for the worst.
Until next time, enjoy writing your concise, accurate and succinct demand letters. Well, hopefully you don’t have to write more than one (and if you do, stop lending people money).
A "Common Law" Query
Ryan posted about the new Adult Interdependent Relationships publication and we received this question via twitter:
How does one go about signing an AIR agreement? Lawyer?
First of all, how cool is it that we received a question via twitter?? Pretty cool! Second of all, I failed horribly when I tried to answer with 140 characters or less (the annoying lawyer in me took over and wouldn’t stop typing), so we decided to put a post up.
Before you sign an adult interdependent partnership (“AIP”) agreement or other contract, you’ve got to think about why you want to sign that document in the first place.
- Do you just want to make sure that you and your partner are “official” AIPs?
- Do you want to be an AIP of someone you’re related to by blood?
- Do you want to set out what will happen to the house that you bought with your partner in the event that you break up? Do you want to decide what will happen to the cabin that you bought together? What about cars? What about debt that you might collect during the course of the relationship?
If you answered 1 or 2, then the simple answer is you can go to the Adult Interdependent Partner Agreement Regulation. This regulation sets out the exact form that an AIP agreement must take. Use the exact wording that is used in the reg, sign in front of witnesses (witnesses are not required by law, but it’s a really good idea to have them), and you’re good to go. Congratulations, you’re now an AIP. Now go read the Adult Interdependent Relationships booklet to find out what responsibilities and rights you just acquired.
The big “BUT” that you’ve got to realize is that the AIP agreement that you just signed does nothing but make you an AIP. It is NOT a pre-nup or co-habitation agreement. It does not give you any property rights if your relationship ends.
If you answered 3 (or read the paragraphs above and had an epiphany), and you want to protect yourself in the event of a breakup, then you need a different kind of agreement. This type of agreement is often called a co-habitation agreement. There are a few common reasons for entering into a co-hab agreement.
- Property
For married people, there is a presumption that assets and property will be split 50/50 upon marriage breakdown. For AIPs, there is no presumption of equal division. This means that if Bill owned a house and is the only person on title, and Sharon moved in with him and they lived together for 25 years and then ended the relationship, Sharon would not be automatically entitled to receive any interest in the house. By entering into a co-hab agreement, you and your partner can set out what will happen to the house, cars, cabin, investments, etc. if the relationship ends.
- Income
What if one partner earns triple what the other partner does? What if one partner does not work during the relationship? A co-hab agreement can set out what each party expects to happen regarding partner support if the relationship ends.
What should you do if you want a co-hab agreement? You may want to talk to a lawyer. The lawyer can explain to you what is often included in the co-hab agreement, why those terms are included, and draft it for you. While there is no requirement in Alberta for independent legal advice when entering into this kind of agreement, it is a really, really good idea for both partners to have met with separate lawyers to sign the agreement. If you do end up in court, it is more likely that an agreement will be upheld if both parties met with their own lawyers.
If you are concerned about the cost of the co-hab agreement, you can call around to different firms and ask if they have a standard quote. Also, keep in mind that in the long term, having an enforceable co-hab agreement could mean that you save a substantial amount of money.
Before you sign any document with your partner, you should have a frank and candid conversation about what you both expect to happen if the relationship ends. Not all relationships end, and not all people are unreasonable, but it’s best to be prepared. It’s the same as keeping a spare tire in the trunk: you really hope that your car will be able to get you where you want to go, but you’re ready if a tire blows.
New Adult Interdependent Relationships Brochure
The term living “common-law” is often used in everyday language to describe a couple that lives together, with or without children, but is not legally married. The Canadian government recognizes “common law” relationships for income tax purposes, but the Alberta government does not. In Alberta, the phrase Adult Interdependent Relationships (“AIRs”) is used instead of common law.
AIRs are interesting because they can include non-sexual relationships of interdependence. For example two friends or relatives that live together may be considered to be in an AIR if they meet certain criteria.
CPLEA has made a new brochure about AIRs. This brochure answers some of the most common questions people have and provides examples of what AIRs look like. Check it out here
Moving Forward: Legal and Psychological Supports for Victims of Domestic Violence Conference
Space is still available for the Moving Forward: Legal and Psychological Supports for Victims of Domestic Violence Conference on April 24, 2012. This event is co-hosted by the Centre for Public Legal Education Alberta and Community Initiatives Against Family Violence.
Are you a social worker, community worker or lawyer who works with victims of domestic violence? The conference will provide an opportunity for you to increase your knowledge of legal issues and community supports, build relationships with other professionals, and to reflect on your practice.
For more information on the conference or to register, visit: http://ciafv.com/event/moving-forward.