Why Paralegal and Police Textbooks Need a Canadian Perspective

The internet has had a profound effect on the textbook industry. Many publishers now offer online courses and learning material in addition to ink-and-paper books. The books themselves often take the form of ebooks, which students appreciate for being lighter on their wallets (and backpacks). It’s also allowed smaller publishers to enter the sphere, offering niche textbooks with a Canadian perspective.

Students in Canada benefit from Canadian textbooks, especially in areas like police foundations and paralegal studies. The Canadian legal system different from that of other Commonwealth nations, and working in the law – either in law enforcement or as a legal representative – requires knowledge of the unique characteristics of Canadian society, including the history of injustice in our country.

These are just some of the reasons why educators should choose Canadian police foundation and paralegal textbooks.

Canadian History

Canada is just 150 years old, and its constitution is under 50. Canada’s legal system is unique among Commonwealth countries, incorporating both British common law tradition and French civil law. Britain was the main influence on the Canadian system, but recent decisions have looked to precedent set by the United States and other nations as well. It’s important for police and DDE’s paralegal textbooks to explain how these origins impact the courts today.

Canadian Law

There are huge differences between the Canadian and American legal systems. To start, criminal law is the exclusive jurisdiction of the federal government, with single Criminal Code setting the law in all provinces and territories. But many other areas of law, like traffic, the environment, and human rights, are different across the country.

There are also many significant differences in how the courts operate. For example, many American paralegal textbooks refer to jury trials, which are rare in Canada, and are outside the scope of paralegal practice.

Canadian Society

People often say we’re becoming more and more like our neighbours to the south. While this may be true, Canadian society is still vastly different from that of the United States, and this has a huge impact on our approach to policing. One major difference, of course, is the absence of gun culture and less availability of guns in Canada. Canadian and American police also undergo different training, with American police focusing more on protocol and Canadian police on problem-solving.

First Nations Issues

It’s impossible to overlook how the legal system is inextricably tied to Indigenous issues in Canada. First nations communities are disproportionately represented in the Canadian criminal justice system, and they can face difficulty accessing justice in other areas of the courts.

It’s important that paralegals know the legal issues specific to representing Aboriginal clients, such as how this background can impact sentencing. Police foundation textbooks must address challenges Indigenous people face in the system, including the history of injustices towards these communities and systemic racism in law enforcement agencies.

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Have Your Say On Marijuana Legalization in Ontario

Ontario is asking residents for their feedback on the upcoming legalization of marijuana.

 

Have something to say about marijuana legalization? You’re in luck. The Ontario government is running an online survey on cannabis legalization in the province.

Residents have until July 31, 2017, to share feedback on how Ontario should approach the sale and regulation of marijuana in the province.

So what does the government want to know? And what could it mean? Today, we’re going to take a break from more complex legal stories and discuss they survey section-by-section.

Introductory Questions

The first three questions in the marijuana survey ask:

  • How familiar you are with legalization efforts;
  • How you feel about legalization; and
  • Whether you’ve ever used cannabis (and, if not, whether you plan on trying it once it’s legal).

The last question caught my attention. In addition to gauging the public’s interest and feelings on the issue, the survey could also be used to predict the demand for cannabis once it’s legal.

Minimum Age

Though the federal government’s Cannabis Act suggests people must be at least 18 years old to possess and purchase marijuana, provinces and territories can raise the age if they choose. This part of the survey asks:

  • How strongly you support setting the minimum age to 19; and
  • Which factors are most important when it comes to setting a minimum age: road safety, scientific evidence, preventing young people from buying cannabis illegally, or keeping cannabis out of the hands of children and youth.

Interestingly, the survey includes this tidbit of information:

“Health experts caution that cannabis may impact a person’s developing brain until the age of 25. At the same time, setting the minimum age too high could lead young people to continue relying on the illegal market.”

To me, this is a strong indication the Ontario government plans to set the minimum age to 19.

Location

Provinces and territories can decide where people are allowed to smoke, vape, or use cannabis in other ways. The survey notes there are already laws in place limiting where people can smoke or drink in Ontario, and asks:

  • Whether the government should restrict where people can use cannabis in public places;
  • Whether landlords should be allowed to restrict tenants and condo owners from smoking or vaping cannabis in units; and
  • Same as the above, but in common areas like rooftops and courtyards.

If you answer “yes” to the first question, you’re given the following options for no-cannabis-zones:

  • Areas around schools and child care
  • Places of worship
  • Areas around public buildings
  • Parks and patios
  • Sidewalks
  • Everywhere but private residences

We could see some overlap with landlord and tenant law here in Ontario. Smoking is already banned in indoor public spaces, such as common areas and foyers. Landlords can force a no-smoking clause on new tenants, but they cannot impose such a policy on existing tenants. However, landlords can move to evict a tenant if their smoking interferes with another tenant’s reasonable enjoyment.

Keeping Our Roads Safe

The survey outlines the new driving laws slated to come into force along with the Cannabis Act, and asks:

  • Whether you support the Ontario government putting stricter penalties in place for drug-impaired driving;
  • Which penalties we should consider, given “limits to the technology to test drug impairment”; and
  • What we should invest in to deal with drug-impaired driving (the options being technology for roadside cannabis testing, drug recognition training for police, more RIDE programs, or public education campaigns).

It was often said that this whole legalization business will never get off the ground until we can easily test for cannabis use at the roadside. That doesn’t seem to be the case. At this point in time, there is no reliable equivalent to the “breathalyzer” test for cannabis. To add to the confusion, THC doesn’t scale the way blood-alcohol content does, so that kind of test isn’t a reliable way of determining impairment.

With the fabled pot breathalyzer out of reach, that leaves us with three options: RIDE programs, police training, or public education campaigns. It’s likely we’ll see a combination of the three.

Sale of Cannabis

Who should be in the business of selling cannabis? The government, the private sector, or both? The survey doesn’t delve into the types of organizations that should be selling cannabis (pharmacies, gas stations, dispensaries, etc.), but it’s interesting to me that ‘private sector only’ is an option. Some people don’t want the LCBO sticking its nose in this business.

The survey also polls Ontarians on which health and safety measures they consider most important when it comes to selling cannabis:

  • Stopping underage and intoxicated people from buying
  • Secure storage
  • Staff training
  • Background checks on staff
  • Restrictions on where stores can be located
  • Hours of operation
  • Safety of the product
  • Packaging and health warnings
  • Restrictions on advertising

Personally, I can’t form an opinion on these issues until we know exactly who will be selling it in the first place.

Next up: more market research! The final part of this section asks you to rank factors that would influence your decision to purchase cannabis on a scale of one  (not important) to five (very important).

I was surprised to see online ordering and delivery on the list. It’s only recently the LCBO began home delivery, and the Beer Store is testing it out this summer. If the government does decide to roll cannabis into the offerings of the LCBO, we could see home delivery soon after legalization.

Public Education

In the months since the federal government announced legalization, I’ve heard more about public education than anything else surrounding this issue. The survey asks:

  • Which issues are most important when it comes to public education (health risks, impaired driving, etc.)
  • Who should be involved (police, schools, health experts)

Given that the big day is less than a year away, we’ll likely be seeing the fruits of these efforts very soon. The perceived success or failure of these education campaigns will likely have a big impact on how people perceive this issue. I, for one, look forward to seeing what they come up with.

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CTV Kitchener Cuts Sports Division: Will Kitchener Employment Lawyers Soon Have Their Hands Full?

Earlier this year, CTV announced cuts to local news stations around the country. Among the cuts were the long-standing sports division of CTV’s Kitchener branch.

The end of local sports programming is a sad loss to a community and its fantastic varsity teams, but the loss is surely greater to the three full-time and five part-time employees who now find themselves without work. The union representing the employees says it will soon meet with the station to try and get the best deal for these workers.

So, will those former CTV employees soon be knocking on the doors of Kitchener employment lawyers?

As with all things legal, it depends on the circumstances.

Terminating Employment in Ontario

At common law, both employers and employees have the right to end the employment contract at any time without cause by giving notice of termination or pay in lieu of notice. Since the CTV Kitchener employees were laid off as part of company re-structuring, it’s safe to assume the employer did not have cause to dismiss.

When it comes to terminating employment without cause, the employer has two options:

  1. Give the employee working notice; or
  2. Compensate the employee in lieu of notice, in an amount equivalent to the pay and benefits the employee would have earned during the required notice period.

There are two standards for how much notice (or pay in lieu) an employer must give someone: the minimum standards under the Employment Standards Act (ESA), and the common law factors that impact reasonable notice.

Notice Under the Employment Standards Act

In general, the longer an employee has been with the company, the more notice he or she gets under the ESA. Under s.57 of the act:

  • Under three months’ employment = no notice (this is known as the “probationary period”)
  • Three months to one year’s employment = one weeks’ notice
  • Between one and three years’ employment = two weeks’ notice
  • For each year over three, add one week’s notice to a maximum of eight weeks

The standard changes in situations where an employer terminates 50 or more employees in a four-week period. Under those circumstances, notice required depends on the number of employees terminated in the period:

  • 50-199 employees = 8 weeks’ notice
  • 200-499 employees = 12 weeks’ notice
  • 500 or more employees = 16 weeks’ notice

Certain employers must also pay severance in addition to any termination pay. As summarized by the staff at a law firm in Kitchener:

“The Act also provides an employee with five or more years of service to severance if the employer has an annual payroll of 2.5 million or more. Severance is one week’s salary for each year and partial year of service up to a maximum of twenty–six weeks.”

Reasonable Notice

Employees may be entitled to more than the minimum notice required under the ESA depending on other factors. Today, courts also consider the following factors in determining reasonable notice:

  • Character of employment
  • Length of service
  • Employee’s age
  • Availability of similar employment, looking at the employee’s training, experience, and qualifications
  • Employer’s policy or practice on reasonable notice
  • Industry customs

Though there is no hard limit to reasonable notice, courts have generally applied an upper limit of 24 months.

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Judge Orders Child Support for Disabled Adults in Ontario

A recent ruling opened the door for parents to obtain child support for disabled adults over the age of 18 in Ontario.

Constitutional Challenge to Ontario’s Child Support Law

The case of Coates v. Watson involves a single mother Robyn Coates and her adult son. Coates’s 22 year old son is developmentally disabled, requiring her continued financial support to get by. She challenged the law that allowed her son’s estranged father, Watson, to stop paying child support when their son turned 18.

Under s.31 of Ontario’s Family Law Act, child support obligations end when the child is 18 or no longer in school full-time. That was the case in Coates v. Watson. 

However, the federal Divorce Act allows parents of disabled children over 18 to continue to collect child support – so long as the parents were at one point married. The fact that Coates and Watson never married meant their son was not eligible for child support past 18.

This discrepancy was the point Coates and her lawyer challenged in court. As it stood, the law afforded more rights to children of divorced than those whose parents never married.

Coates and her lawyer argued that children in the latter group should enjoy the same rights as the former. The lawyer representing Watson, on the other hand, argued that it it’s up to society as a whole, not parents, to care for disabled adults.

The Decision in Coates v. Watson

On July 7, Justice Sullivan ruled that s.31 of the Family Law Act was unconstitutional because it “widens the gap between historically disadvantaged groups and the rest of society.”

“Even if the perfect public supports were in place for people with disabilities, the legislative regime here denies access to child support to ‘illegitimate’ children in contrast to ‘legitimate’ children, sending the message that the claimant families are less worthy of respect, concern and consideration.”

The decision is the latest to expand the definition of what it means to be a “child” for the purpose of child support.

Family law provides a fascinating insight into changing social mores. Marriage and child-rearing are most intimate and important areas of our lives, and the state of family law is often a reflection of society as a whole. This decision, for example, reflects heightened awareness of the challenges facing families with disabled adults.

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Khadr Settlement Follows in the Footsteps of British and Australian Governments

Canada will pay Omar Khadr over $10 million to settle his lawsuit against the government for breaching his Charter rights. Though the decision is controversial, it isn’t unprecedented in the Commonwealth world.

Omar Khadr is a Canadian citizen. At 15 years old, he participated in a firefight with American soldiers in Afghanistan. During the battle, American solider Christopher Speer died from a grenade blast. Captured and brought before a military commission in 2010, Khadr plead guilty to throwing the grenade.

While imprisoned in Guantanamo Bay, Khadr suffered torture at the hands of his American captors. He was not allowed to speak to a lawyer. He claims he took the plea deal as a way out.

As a citizen of Canada, Khadr is protected by the Canadian Charter of Rights and Freedom. That includes the right to life, liberty, and security of the person. The Supreme Court of Canada ruled that Canada violated his rights by being complicit in Khadr’s torture and imprisonment at Guantanamo Bay.

In response, Khadr sued the Canadian government for $20 million. Rather than fight him in court, the Trudeau government chose to settle the case for half that amount.

This was a difficult calculation for the government to make. On one hand, Khadr’s legal affairs have already cost us over $5 million. The lawsuit would have cost taxpayers millions more, and that’s not including the $20 million in damages Khadr claimed.

But Canadians are far from welcoming of this decision. An Angus-Reid poll showed 71% of respondents thought the government should have fought the case to the end. Interestingly, 74% also believe Khadr should have been treated as a child soldier rather than a terrorist, seeming to acknowledge Canada’s wrongdoing while denying its responsibility to pay damages.

While the decision is highly controversial, Canada isn’t the first government to pay out settlements to citizens who were imprisoned at Guantanamo. In 2010, Australia settled with Mamdouh Habib, an Australian who was captured and transferred to Gitmo following the September 11 terrorist attacks. Britain gave the equivalent of $30 million to 16 citizens in similar cases that same year.

What is different about Canada’s decision is the government’s willingness to acknowledge wrongdoing. Britain and Australia both settled begrudgingly. Britain claimed it was necessary to avoid disclosing sensitive information. Australia continues to deny involvement. But the Canadian government has not only owned up to its complicity in Khadr’s imprisonment, but has apologized to him.

In a statement last week, Justice Minister Jody Wilson-Raybould said, “I hope Canadians take away two things today: First, our rights are not subject to the whims of the government of the day. Second, there are serious costs when the government violates the rights of its citizens.”

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Should Canada Suspend the Safe Third Country Agreement?

safe third country agreement

Refugee and human rights activist groups in Canada have denounced the Safe Third Country Agreement.

It has been six months since President Donald Trump signed the executive order known as the “travel ban.” President Trump also suspended the United States refugee program. These changes sparked a sharp increase in the number of refugee claimants and illegal immigrants crossing the border into Canada illegally, many citing fears over their future in the United States.

These claimants chose to enter Canada illegally to dodge the provisions of the Safe Third Country Agreement, a law requiring refugees who arrive in the United States to make a claim there instead of in Canada.

Now that the United States Supreme Court has temporarily reinstated large portions of Trump’s executive order, there are renewed calls for Canada to suspend the Safe Third Country Agreement.

What is the Safe Third Country Agreement?

Following the 9/11 terror attacks, Canada developed a Smart Border Action Plan that included new laws regulating refugee claimants. As part of this plan, the United States and Canada agreed to the Safe Third Country Agreement. It became Canadian law under the Immigration and Refugee Protection Act in 2004.

Section 101(1)(e) of the Agreement provides that a person is ineligible to be assessed for refugee status if they came to Canada from a country designated as “safe” under the regulations. Canada and the United States both deem one another “safe” countries under their respective immigration laws.

Essentially, it means that a refugee has to make a claim in whichever of the two countries they arrive in first. If you disembark in the United States, you have make a claim there, not in Canada. Show up at a Canadian border crossing and you’ll be denied (unless you fall under a narrow exception.)

This was meant to better manage the flow of refugees into both countries.

Impact of the Trump Presidency

Since January 2017, Canadian police have arrested over 3,000 people crossing the border illegally. Since the would-be refugees arrived in the United States first, they cannot make a claim at a legal crossing, and this leads them to take the clandestine route instead.

Refugee and human rights activist groups in Canada began to denounce the Safe Third Country Agreement when this phenomenon began back in January. The Canadian Parliament debated the issue, but chose not to act. But the heat is back on now that the travel ban is up and running again.

Challenging the Agreement in Court

Some activists argue the United States should no longer be designated a “safe” country for refugees, which would essentially nullify the Agreement. Under s.102(1), the Governor in Council may determine whether a country is safe based on the four requirements:

  1. Whether the country is party to the United Nations 1951 Refugee Convention, and the 1984 Convention Against Torture;
  2. Whether the country has policies and follows its obligations under the above conventions;
  3. The country’s human rights record; and
  4. Whether the country shares responsibility with Canada with respect to claims for refugee protection

The United States is party to both UN agreements. It has an agreement with Canada to deal with refugee claims. That leaves one avenue of appeal: human rights.

According to the Canadian government, “The United States meets a high standard with respect to the protection of human rights. It is an open democracy with independent courts, separation of powers and constitutional guarantees of essential human rights and fundamental freedoms.”

In light of recent events, I’d bet some people would beg to differ.

The Supreme Court of Canada has already dismissed one case where someone challenged the United States’ designation as a safe country back in 2009. But new circumstances could mean a new challenge to the law in the future.

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Government Suspends Law That Would Let Canadians Sue for Spam

private right of action

CASL would have allowed Canadians a private right of action against spammers.

On June 7, 2017, the Canadian government suspended the portion of Canada’s Anti-Spam Legislation that would have allowed Canadians to sue companies who send electronic spam messages without permission. The provision was set to take effect on July 1, 2017.

What is CASL?

Most of the provisions in Canada’s Anti-Spam Legislation (CASL) came into force back on July 1, 2014. The law’s official title is, An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.

CASL regulates a range of malicious electronic activity, including malware and phishing. The ‘spam’ section sets rules for how and when people and businesses can send commercial electronic messages, like marketing emails, to recipients in Canada or Canadians abroad.

Rules for Electronic Messages Under CASL

In short, you can only send a commercial electronic message to someone if:

  1. You have the recipient’s consent to send them commercial electronic messages;
  2. The message identifies you and contains up-to-date contact information; and
  3. You give the recipient an easy way to ‘unsubscribe’ from the commercial electronic messages.

There are plenty of rules and requirements within those three points, such as what constitutes consent and what exactly the message must contain. But that’s the basic idea of the law. If you want to send someone a newsletter, a coupon, an advertisement, or another commercial message via the Internet or SMS, you need their permission.

Any message that falls short of those requirements is spam.

Penalties for Violating CASL

People and companies who break the law can face substantial fines form the Canadian Radio-Television and Telecommunications Commission (CRTC). The max fine for individuals is $1 million per violation, while corporations can pay up to $10 million. Officers, directors, and agents who authorize or participate in a violation may be held personally responsible.

If that’s not scary enough, CASL was also set to allow individual Canadians to sue spammers in civil court. That’s the part of the law the government suspended at the last minute on June 7th.

But what would have been so bad about that? No one likes a spammer. Wouldn’t it be sweet to enact some civil revenge on those who pollute our inboxes with nonsense?

The problem is statutory damages.

Problems with the Private Right of Action Under CASL

When you sue someone in court, you normally have to prove that the amount you’re suing for (the ‘damages’, in legal terms) accurately reflects the loss you suffered as a result of the person’s actions. If your neighbor backs over your $500 BBQ, you won’t be successful suing them for $1,000. You might not even succeed in getting $500, unless you can prove it’s worth that much.

That all changes when it comes to statutory damages. Statutory damages are minimum damages set out in the law that count on top of your actual damages. So you could potentially get the value of your claim plus the statutory amount.

CASL set statutory damages for spam messages at $200 per violation (meaning per message) to a maximum of $1 million per day. This meant that Canadians with unwanted spam messages in their inbox could potentially have been sitting on spam worth hundreds or thousands or even millions of dollars. Many commentators predicted there would be massive class action lawsuits on behalf of spam recipients once the private right to action came into effect.

This is excessive, to say the least.

Spam is annoying, unwelcome, and poor practice for marketers. But is it worth suing over? In most cases, no. It is a far better use of our tax dollars to pursue violators with fines than it is to litigate in our already backlogged court system.

The government made the right move in this case. If the private right of action is to return, it should be without the statutory penalty.

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Bill C-16 Infringes on Freedom of Expression, As It Should

Ontario Government to test guaranteed basic income

Human rights are a balancing act.

Rights can intersect, overlap, and conflict in unexpected ways. It has always been this way, and it will continue to be a challenge as our values change and evolve over time. Protecting one person’s rights often means infringing on the rights of another.

This doesn’t mean the law is broken. It just takes work. The court has established a framework for determining when it’s acceptable for the law to infringe on the Canadian Charter of Rights and Freedoms, and a vast body of precedent on how to apply it in different cases.

Section 2(b) of the Charter protects the right to “freedom of thought, belief, opinion and expression, including freedom of the press and freedom of communication.” In other words, free speech. The law recognizes that freedom of expression is essential in a free and democratic society. But no Charter right is absolute, and s.2(b) is no exception.

We limit freedom of expression in various ways. For example, we recognize that maintaining public safety and order is more important than protecting one’s right to yell “fire” in a crowded theatre. In the landmark case of R. v. Keegstra, the court determined it was reasonable to limit one’s right to promote hatred against an identifiable group (the case involved a high teacher who was criminally charged for teaching his students racially prejudiced material.)

We have also come to agree, as a society, that it is important to protect vulnerable groups of people from discrimination and harassment. To that end, each province has human rights legislation that ensures people are not unfairly barred from opportunities in employment, housing, education, or business because of who they are.

There is also federal human rights legislation, which covers federally-regulated and inter-provincial industries like airports and the military.

On June 16th, the Senate passed Bill C-16, which adds gender identity and gender expression as protected grounds under the federal Canadian Human Rights Act. This addition is meant to protect individuals who are transgender, transsexual, or intersex, or whose gender identity or expression is different from their birth sex, from discrimination and harassment.

Bill C-16 has drawn controversy for limiting freedom of expression. In a particularly inflammatory editorial, Bruce Pardy of the National Post warns that under the new law, “failure to use a person’s pronoun of choice — “ze,” “zir,” “they” or any one of a multitude of other potential non-words — will land you in hot water with the commission. That, in turn, can lead to orders for correction, apology, Soviet-like “re-education,” fines and, in cases of continued non-compliance, incarceration for contempt of court.”

The commission to which he refers is the Ontario Human Rights Commission. To his credit, the Commission has in fact stated that refusing to refer to a transgender or gender non-conforming person’s chosen name and pronoun could constitute discrimination under the Code.

But his predictions are absurd. Ontario quietly added gender identity and gender expression to its human rights legislation four years ago. This has not caused a flood of human rights applications related to pronouns, nor has it resulted in the Commission brainwashing people.

Words incite action. It’s why we saw fit to ban hate propaganda, even when it does explicitly refer to physical violence. The choice to forego using a person’s chosen name or pronouns sends a deliberate message, attacking a person’s dignity in much the same way as a racial or homophobic slur.

Like provincial bills addressing this issue, Bill C-16 will likely receive royal assent and become law without consequence. It will not usher in a new era of censure.

This is just how human rights work.

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