Canadian Digital Information Strategy Issued for Comments

Library and Archives Canada (LAC) has issued the Canadian Digital Information Strategy in draft form for comment. Comments are due by Nov 23, 2007.

Over the past 2 years, LAC consulted with over 200 organizations: publishing and media producers, creators, rights bodies, academics, provincial and federal officials, and heritage institutions.

The strategy being proposed is based on the following vision:

"Canada's digital information assets are created, managed and preserved to ensure that a significant Canadian digital presence and record is available to present and future generations, and that Canada's position in a global digital information economy is enhanced".

"The Strategy puts forward three broad opportunities for achieving this vision:

1. Strengthening content so that, over time, Canada's information assets and accumulated knowledge will be in digital form.
2. Ensuring preservation so that Canadians will have ongoing access to their country's digital knowledge and information assets, and future generations will have evidence of our intellectual and creative accomplishments.
3. Maximizing access and use so that Canadians will have optimal access to Canadian digital information important to their learning, businesses and work, leisure activities, and cultural identity; and Canadian content will be showcased to the world".

The draft strategy document highlights a number of current digitization projects in Canada and contains an extensive bibliography on international strategies, preservation, and digitization.

Annual Report 2006–2007 of the Security Intelligence Review Committee

The Security Intelligence Review Committee (SIRC), the external review body which reports to the Parliament of Canada on the operations of Canada's spy agency, the Canadian Security Intelligence Service (CSIS), has made its most recent annual report available on its website:

"SIRC has two key functions. The first is to conduct in-depth reviews of CSIS activities to ensure that they accord with the CSIS Act and the various policy instruments that flow from it, and with direction from the Minister of Public Safety. The second is to receive and investigate complaints by any person about any action of the Service (...) The report's three sections are":

"Section 1: A year in review 2006–07
This section summarizes nine reviews SIRC completed during the period covered by this report. It also provides information about five complaint reports issued by SIRC".

"Section 2: CSIS accountability mechanisms
Featured in this section are descriptions of the policy and governance framework within which CSIS operates. This section also contains information provided by CSIS on operational activities, plans and priorities, organized according to the Service's major branches".

"Section 3: About SIRC
This section provides details about the outreach, liaison and administrative activities of SIRC, including its annual budget and expenditures".

The report contains a special section analyzing the treatment of Mohammed Mansour Jabarah, a Canadian citizen, who is an admitted al Qaida member and leader of a terrorist cell that planned to bomb the American and Israeli embassies in Singapore and Manila.

CSIS officials travelled to Oman and arranged for Jabarah's return to Canada and subsequent transfer to the United States. He apparently could not be charged with a crime under Canadian law. In the U.S., he pleaded guilty to a number of terrorism-related offences.

While acknowledging that Jabarah is a terrorist whose actions are "despicable", SIRC found that he was arbitrarily detained by CSIS in violation of the Charter of Rights and Freedoms. Furthermore, his rights to silence, to legal counsel and to remain in Canada were breached.

Supreme Court of Canada Factums Soon Online?

As reported last week on slaw.ca, the Supreme Court of Canada is "planning to make factums available online next year year, at least in some measure."

The Osgoode Hall Law School blog The Court has added more detail to the issue in today's post entitled Coming soon to the Web: SCC factums:

"According to proponents of initiatives like these, on-line access to factums has several advantages. It’s in keeping with the open-court principle, and the principle of access to justice. It would also provide academics and practitioners alike with a valuable research tool. Further, some have argued that the quality of factums may actually improve if lawyers have access to their peers’ work, and if they know that those same peers will have access to their work".

"Proponents have also responded to many of the concerns raised by those on the other side of the debate. For starters, they note that public access to factums is hardly new; many SCC litigants already publish their factums on-line, and will happily share them with journalists. A new database, according to this line of argument, will simply serve to make access easier. Moreover, to the extent that there are legitimate concerns about the reliability of a factum’s contents, or the privacy of parties to litigation, fans of the on-line database idea argue that these concerns can be easily addressed".

Auditor General Criticizes Border Agency - High Risk People and Goods Getting In Too Easily

Today, Canada's Auditor General Sheila Fraser reported that the Canada Border Services Agency does not capture enough information on the results of its activities to know whether it is doing a good job at the border or to know where improvements are needed.

Fraser also raised many questions about the automated systems to identify high-risk travellers and shipments before they enter Canada. The Auditor concluded that the Agency has been missing some individuals and shipments that were identified as high risk:

"The threat and risk assessments that the Agency has put in place are not satisfactorily supporting its efforts to achieve a border management approach that is based on risk. It is still developing a risk management framework to guide its activities and does not have a suitable model for assigning the necessary resources to manage risk levels among ports of entry and modes of travel. While the selection of individual travellers or shipments for examination is based on risk indicators, the overall rate of examination at the border is based on historical levels of resources and capacity. In addition, the Agency's lookout system, which was designed to identify and intercept high-risk individuals and shipments, is not working as intended: we found some cases where lookout subjects were missed at the border, and not examined as required (...)

"The Agency does not record the results of all secondary examinations, information it could use to determine whether its targeting activities are identifying the right people for further examination. Nor does it have an effective system to randomly select goods and people for further examination and use the results to validate or improve its targeting and examination strategies. Without this information, the Agency cannot determine whether it is appropriately matching levels of examination activity to levels of risk".

She also found weaknesses in the program aimed at investigating container ships entering Canada. There have been examples where ships have been red-flagged but never checked to determine if they were a security risk.

Fraser did not audit the work of the Agency's Migration Integrity Officers located in foreign missions, its War Crimes Program, or its programs aimed at detaining or removing people who are not admissible to Canada.

The Agency manages 1,269 ports of entry by sea, air, and land. 96 million people cross Canada's borders every year.

LegalPubs.ca - RSS Aggregator for Canadian Legal Publishers

Steve Matthews announced on his Vancouver Law Librarian Blog that he has created an aggregator that receives RSS feeds from Canadian legal publishers.

He calls it Legalpubs.ca and it is put together using Yahoo Pipes and Feedburner.

New Zealand Law Commission Recommends Abolishing Provocation Defence

The Law Commission of New Zealand released a report last Friday entitled The Partial Defence of Provocation that recommends the repeal of Section 169 of the Crimes Act 1961. That section allows for the use of provocation as a "partial defence" in murder cases.

The report does offer some interesting comparative analysis as it goes into detail about how the provocation defence has been dealt with in the United Kingdom.

"There is a widespread view that the present operation of section 169 is unsatisfactory. Twelve out of the 16 Crown Solicitors supported repeal. The defence bar (which is adamantly opposed to repeal, on the basis that partial defences perform a useful and necessary function in the criminal justice system) nonetheless wanted the partial defence framework to be reformed, to either include more partial defences, or replace provocation with a partial defence that is broader in scope. Senior members of the judiciary have repeatedly expressed dissatisfaction with the defence in appellate judgments".

"Amongst mental health professionals, there was virtually universal recognition that provocation benefits very few defendants who are mentally ill or impaired. The same was true for women’s groups considering the defence from the
perspective of women generally and battered women in particular (...)".

"In other contexts, too, the negative social effects of the defence were noted. An example of this, which has occurred all too frequently in recent years, is its use to partially excuse intentional killing in response to a homosexual advance (...) "

Crown prosecution files show that during a five-year period, provocation was successfully relied upon in only four out of 81 murder cases. Two of the four – half – were so-called 'homosexual advance' or 'homosexual panic' cases.

Sir Geoffrey Palmer, Law Commission President, is quoted as saying: "More broadly, and more importantly, intentional killing in anger in any circumstances is inexcusable. Section 169, as interpreted by the courts, requires the defendant to have demonstrated the self-control of an ordinary person. But even when very angry, no ordinary person responds to any provocation by deliberately killing. That is an extraordinary and inexcusable response."

The Law Commission recommends that evidence of any alleged provocation should be weighed with other aggravating and mitigating factors only as part of the sentencing phase.

Child Support Obligations Of Non-Biological Parents

Nicholas Bala of Queen's University in Kingston has made his recent presentation to the Judicial Education Program of the Manitoba Court of Queen’s Bench available on the Social Science Research Network.

It is entitled Who is a 'Parent'? 'Standing in the Place of a Parent' & Canada's Child Support Guidelines S.5.

Prior versions of this paper were presented at the Law Society of Upper Canada Continuing Education Program, "Special Lectures 2006: Family Law" on April 3, 2006, Toronto, and the National Judicial Institute, Family Law Seminar, Ottawa, Feb. 8, 2006. A version of this paper was also published in Special Lectures 2006: Family Law (Toronto: Irwin Law, 2007):

"Canada has a broad and functional approach to the legal definition of the family, and gives significant legal recognition to social parents, who may seek custody or access, and will often have child support obligations. This paper deals with the controversies concerning the obligations of those who 'stand in the place of a parent' under the definition in Canada's Divorce Act, or 'demonstrate a settled intent to treat a child as their own' under provincial legislation such as the Ontario Family Law Act, to pay an amount of child support that as 'appropriate' under the Child Support Guidelines s. 5. The issues that face lawyers and judges in dealing with cases involving the child support obligations of those who are not biological parents – most frequently cases about the child support obligations of step-fathers – are an aspect of one of the most contentious issue in family law today, both in Canada and other countries, the question of 'who is a parent.' The paper includes consideration of the way in which Canadian courts have dealt with cases of paternity fraud".

How Canadian Courts Interpret the Youth Criminal Justice Act

The Social Science Research Network recently published Queen's University law professor Nicholas Bala's paper entitled Responding to Young Offenders: Diversion, Detention & Sentencing Under Canada's Y.C.J.A. It was presented earlier this month at a continuing education program of the Ontario Court of Justice:

"Canada's juvenile justice system was profoundly changed when the Youth Criminal Justice Act [YCJA], came into force on April 1, 2003. This statute was intended to reduce Canada's high rates of use of court and custody for adolescent offenders, based on the belief that community-based responses are more effective and more appropriate for dealing with the majority of youths who violate the criminal law. The YCJA has resulted in a substantial increase in the number of cases diverted from the youth courts, a small reduction in the number of youth detained on remand, and a very significant decrease in the number of young offenders in custody, with no increase in the youth crime rate since the Act came into force. This paper discusses how the diversionary provisions of the YCJA are being applied, and reviews how the courts have interpreted the detention and sentencing principles in the YCJA. It includes a discussion of the way in which the Convention on the Rights of the Child has affected the treatment of juvenile offenders in Canada's courts".

Supreme Court of Canada Client Satisfaction Survey

The Supreme Court of Canada has published an executive summary of a client satisfaction survey of recent Registry Branch customers. The Registry Branch is the administrative arm of the Court.

The survey was done in the spring of 2007 by the firm Phase 5.

299 counsel, agents and self-represented litigants who had appeared before the Supreme Court of Canada in 2006 were invited to participate in an online survey. The response rate was 60%.

Highlights:

• Information related to appeals was the most commonly accessed service area by respondents (93%), followed by information related to applications for leave to appeal (85%), information about Court decisions (61%), information about motions (55%) and access to documents from the Court Records Office (30%);
• The most commonly cited use for in-person counter services was to sign-in for hearings (88%). This was followed by filing documents (26%), consulting documents (15%) and requesting videos of hearings(15%);
• 3 out of 4 respondents stated they were 'very satisfied' with the service they received from the Registry Branch;
• There was strong agreement among respondents that they had enough information about the process and filing deadlines and to prepare their application. However, they were less likely to agree that the rules of the SCC related to leave for appeal are complete and clear - 1in 5 respondents did not agree;
• The Court website was well received with over 9 in 10 respondents indicating they were satisfied or very satisfied. However, the strength of the agreement was lower than other SCC service areas: more detailed and up-to-date case information (e.g. factums) was the most commonly cited suggestion for improving the SCC Web site

2006-07 Annual Report on Money Laundering and Terrorist Financing in Canada

Last week, the Canadian government tabled in Parliament the 2006-07 Annual Report of the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC).

The report outlines financial transactions the Centre suspects would be relevant to investigations of money laundering, terrorist activity financing or other threats to the security of Canada.

The total value of disclosed transactions reached $10 billion:

• $8 billion in transactions of suspected money laundering
• $209 million in transactions of suspected terrorist activity financing and other threats to the security of Canada, compared to $256 million in 2005-06
• $1.6 billion in transaction of both suspected money laundering and terrorist financing and/or other threats to the security of Canada

FINTRAC is part of Canada’s Anti-Money Laundering and Anti-Terrorist Activity Financing Initiative. The initiative is led by the Department of Finance and includes the RCMP, the Canadian Security Intelligence Service, Public Safety Canada, Canada Revenue Agency, Canada Border Services Agency, the Communications Security Establishment and the Department of Justice.

Reporters Without Borders 6th Annual Press Freedom Report

The international press freedom group Reporters Without Borders just released its 6th annual report on press freedom worldwide:

"Outside Europe - in which the top 14 countries are located - no region of the world has been spared censorship or violence towards journalists".

"Of the 20 countries at the bottom of the index, seven are Asian (Pakistan, Sri Lanka, Laos, Vietnam, China, Burma, and North Korea), five are African (Ethiopia, Equatorial Guinea, Libya, Somalia and Eritrea), four are in the Middle East (Syria, Iraq, Palestinian Territories and Iran), three are former Soviet republics (Belarus, Uzbekistan and Turkmenistan) and one is in the Americas (Cuba)".

Elections Canada Act Amendment - Visual Identification of Voters

The federal government has introduced An Act to amend the Canada Elections Act (visual identification of voters) .

It comes after controversy during the 3 recent federal byelections in late September when Elections Canada officials explained they could not prevent people from voting while concealing their face. This included conservative Moslem women wearing the niqab or burqa, all head coverings that fully hide the face.

The bill expressly mandates that voters be required to have their faces uncovered when being identified to vote. Those vouching for voters without identification will also need to show their faces when vouching.

Background from the Canadian Broadcasting Corporation: Tories introduce bill to ban veiled voting.

2007 Ranking of the Global Publishing Industry - Legal Conglomerates On Top

At the most recent Frankfurt International Book Fair (mid-October 2007), the French book industry publication Livres Hebdo presented its 2007 Livres Hebdo Ranking of the Global Publishing Industry.

It lists the 73 biggest publishing concerns worldwide. For the first time ever, the list was published not only in France, but also in Germany (Buchreport), China (Publishing Today), the USA (Publishers Weekly) and Sweden (Svensk Boekhandel).

The picture is one of concentration and fragmentation with a combined turnover of 52,47 billion Euros, 65% of which is accounted for by the top 10 groups.

International publishing is dominated by English-language conglomerates operating in the "specialist professional sector", with big legal/tax/regulatory publishers in the top 5:

• no. 1 Reed Elsevier - annual publishing turnover of 5,85 billion Euros
• no. 3 Thomson Publishing - 5,1 billion Euros
• no. 5 Wolters-Kluwer - 3,7 billion Euros

[Euro = $1,38 CAN]

New Research Guides from GlobaLex

The GlobaLex collection at the New York University School of Law has just published a few new research guides:

• International Trademark Law – The Madrid System: "Registration of trademarks in multiple jurisdictions around the world is governed by two independent treaties – the Madrid Agreement (the Agreement) and the Madrid Protocol (the Protocol). Despite its name, the Protocol is a separate treaty and not a 'protocol' to the Agreement. Together, the Agreement and the Protocol are known as the Madrid System for the International Registration of Marks (the Madrid System). States party to the Agreement and/or the Protocol and organizations party to the Protocol are referred to collectively as Contracting Parties. Together, they constitute the Madrid Union, which is a Special Union under Article 19 of the Paris Convention. The Madrid System is a centrally administered system (by the International Bureau of the World Intellectual Property Organization, WIPO) for obtaining a bundle of trademark registrations in separate jurisdictions, creating in effect a basis for an 'international registration' of marks. This guide is intended to highlight the resources and important issues encountered in using the Madrid System for the international registration of marks."
• Selected U.N. Resources and Research Tools: Overview and Search Tips for Legal Research: "The resources described here are currently the most important finding tools for United Nations documents. Our aim is to help legal researchers select the tool best suited to their needs. The side-by-side column format was thought advantageous for purposes of an overview: a good way to organize the information and see the tools in relation to one another. The last (and longest) section offers search tips for each resource or finding aid."

There are also 2 updates to existing guides:

• History, Role, and Activities of the Council of Europe: Facts, Figures and Information Sources: "The main aim of this article is to assist the reader seeking information about the Council of Europe and to provide sources of information (bibliographic sources, web sites, contacts) for further research (...) The Council of Europe is the continent's oldest political organization, founded in 1949. It groups together 47 countries, including 22 countries from Central and Eastern Europe, has a pending application from one additional country (Belarus), and has granted observer status to five other countries (the Holy See, United States, Canada, Japan and Mexico). The Council of Europe is distinct from the 25-nation European Union, but no country has ever joined the Union without first belonging to the Council of Europe."
• Global Warming: A Comparative Guide to the E.U. and the U.S. and Their Approaches to the U.N. Framework Convention on Climate Change and the Kyoto Protocol: "I [Deborah Paulus-Jagrič, Reference Librarian at New York University Law School Library] began this guide in the fall of 2006, just prior to a number of significant climate-related events. The Twelfth Conference of the Parties to the UNFCCC and the Second Meeting of the Parties to the Kyoto Protocol (COP-12/MOP-2) were held in Nairobi in November 2006, as were the mid-term elections in the U.S.; in February 2007, the IPCC’s Fourth Assessment Report was released, which finds it all but certain that human activities are responsible for climate change. Discussions of climate change are everywhere. Here is just one example, to illustrate the current urgency: On January 17th, 2006, the BBC reported that the “Doomsday Clock” had been moved two minutes closer to midnight, partly because of the threat caused by carbon-emitting technologies. The symbolic clock, devised in 1947 by the Bulletin of the Atomic Scientists, which was founded in 1945 by former Manhattan Project physicists, now stands at 5 minutes to annihilation. A geoscientist from Princeton University said of the occasion: '...[T]his organization, which for 60 years has been monitoring and warning us about the nuclear threat, now recognizes climate change as a threat that deserves the same level of attention'."

Manitoba Provincial Courts To Start Broadcasting Soon?

The Winnipeg Free Press is reporting that Manitoba's chief provincial court judge wants to allow live broadcasts of court decisions.

In an article entitled Live broadcasts urged for courtroom decisions, the daily writes that Ray Wyant, a former journalist and the current chief provincial court judge "is planning on meeting with every provincial court judge in the near future to discuss his proposal further and will likely table a policy that will give each judge the discretion to allow audio and possibly videotaping of court cases".

Wyant originally wanted to start allowing live coverage next week of his sentencing verdict in a deadly driving case against a former police officer. But he backed down when lawyers involved in the case as well as other provincial court judges objected.

According to the article:

"Judges often complain that media coverage of cases is unfair because the public doesn't always get the full reasons for their controversial decisions because of time and space restrictions".

"Wyant told the Free Press he believes allowing people to hear exactly why verdicts and sentences are handed down can only help restore public confidence".

"The Free Press has been posting complete written decisions handed down by judges on its website for several months. Wyant said allowing for audio and perhaps video feeds would be another valuable tool".

Library and Archives Canada Exhibit of Aboriginal Treaties

Library and Archives Canada (LAC) is currently hosting Spirit and Intent: Understanding Aboriginal Treaties, an exhibition of aboriginal treaty documents and artifacts dating from the 1600s to the 1990s:

"The visions and values of the parties involved and the scope of the treaty terms deliberated have evolved from fur-trading partnerships, to peace and friendship accords, to strategic military alliances, to the granting of access to lands and resources, to territorial rights and land claims settlements".

(...)

"Treaty documents and artifacts are among our most precious Canadian heritage records. Wampum, parchments, manuscripts and maps, totems, seals, signatures and stamps—all are evidence of decisions that have shaped our country and its peoples".

The website contains a selection of the documents on display at LAC , as well as links to further resources on aboriginal issues.

The exhibition is open to the public at 395 Wellington Street in Ottawa until March 24, 2008.

Comparative Perspectives on the Detention of Terrorist Suspects

University of Auckland law professor John Ip has made an article entitled Comparative Perspectives on the Detention of Terrorist Suspects available on the Social Science Research Network:

"The detention of terrorist suspects by the United States at various locations around the world, most notably Guantanamo Bay Naval Base, is one of the most obvious results of the war on terror. The detention of terrorist suspects at Guantanamo is an example of detention outside the criminal justice paradigm. The United States, however, is not alone in doing this".

"This article examines the different approaches taken by the United States, the United Kingdom, Canada and New Zealand in relation to the detention of terrorist suspects. Whereas the United States detains terrorist suspects using a detention model that selectively utilises law of war concepts, the other jurisdictions surveyed employ a model based on immigration law. Both models permit detention with fewer due process protections. Both models have, in practice, also resulted in the differential treatment of foreign terrorist suspects. The article concludes by discussing how the courts in each jurisdiction have dealt with the cases concerning the detention of terrorist suspects".

Directory of Experimental Library Tools

The RSS4Lib site has compiled a directory of library labs, "web sites where libraries of all kinds publicize their experimental, 'beta,' or trial services".

The kinds of tools and services being developed by libraries at institutions such as MIT, New York Public Library, and University of Pennsylvania include search engine plug-ins, Facebook applications, tagging tools, bookmarklets, etc.

Supreme Court of Canada Library: New Titles

The list of new library titles added to the Supreme Court of Canada collection for the period of October 1st to 15th, 2007 is available on the Court website.

The web page explains: "The Supreme Court of Canada Library does not lend materials from this list, which is provided for information only."

But, once the material goes into the general collection, after about a month, the works do become available for inter-library loans to authorized libraries.

It is possible to subscribe via e-mail to receive the list.

UK Considering TV Cameras in New Supreme Court

According to the Times Online, the United Kingdom's new Supreme Court will allow cameras to broadcast hearings. The new high court is set to open in 2009. It is being created under the Constitutional Reform Act 2005.

"The move could see some of Britain’s most high-profile appeals being shown on television. Such appeals have included the legality of detaining terror suspects without trial, whether the deaths of six Iraqis at the hands of British soldiers was covered by the Human Rights Act, and the extradition of General Pinochet".

"But Mr Straw [Justice Secterary Jack Straw] has indicated to judges that he does not favour allowing cameras into jury trials - a move that judges widely oppose because they perceive it as a step towards American-style justice that could damage the nature of court proceedings".

"Mr Straw’s proposal would resolve a longstanding stalemate over whether to allow cameras in courts. It could also be a first step towards allowing cameras into other appeal hearings, criminal and civil - and from there, to High Court proceedings such as judicial review challenges".

New Court Statistics from Statistics Canada

Statistics Canada today released 2 new sets of figures: Adult criminal court statistics for 2005/2006 and Youth court statistics for the same period.

In terms of adult criminal court statistics:

• cases involving multiple charges represented 60% of the adult caseload in 2005/2006, compared with 51% a decade earlier;
• fewer cases are being disposed of in adult criminal court each year, in light of the increased case complexity and duration, as well as a long-term downward trend in police-reported crime statistics;
• 25% involved crimes against the person, and an additional 24% involved crimes against property, the two largest shares. Administration of justice offences involved 17%, and Criminal Code traffic offences, 14%. The remaining 20% involved other Criminal Code and federal statute offences

When it comes to youth court statistics:

• fewer young people aged 12 to 17 are showing up in courtrooms, and fewer are being sent to custody, since the enactment of the Youth Criminal Justice Act in April 2003; the caseload has declined 26% since 2002 - the Act aims to keep the less serious offences out of youth courts;
• half of the reduction in the youth court caseload was the result of fewer youth appearing in court for property crimes such as theft, breaking and entering, fraud and possession of stolen property; however, property crime cases still accounted for 38% of youth court caseload

Canadian Government Introduces Modified Security Certificate Legislation

Today, the federal government introduced legislation to modify the security certificate system used to deport non-citizens suspected of being national security threats. Under the system, the individuals affected as well as their legal counsel cannot see the full evidence used by the Crown.

In February 2007, the Supreme Court of Canada ruled that the certificate scheme was unconstitutional. The Court suspended the effect of its ruling for one year to give Parliament a chance to overhaul the law to comply with the Canadian Charter of Rights and Freedoms.

Under the proposed legislation (RSS feed available for bill tracking), special advocates would be named to protect the interests of the individuals affected by the certificates. The special advocates could challenge the government's claims of secrecy over evidence, as well as the relevance and weight of the facts. The advocates, however, would enter the picture only during in camera hearings and it is not clear if they would be allowed to discuss secret information with others, including the target of the certificate and his or her lawyers.

Earlier Library Boy postings on the issue include:

• Supreme Court Ruling on Security Certificates (February 24, 2007): "As most readers of legal news know by now, the Supreme Court of Canada unanimously ruled yesterday that the security certificate process under which the federal government can detain and deport foreign-born terrorist suspects is unconstitutional (...) In its ruling, the Supreme Court justices did indeed propose that the government look into something like the "special advocate" system used abroad, in particular in the UK."
• More Commentary on Supreme Court Security Certificate Ruling (February 27, 2007): "The Osgoode Hall Law School blog The Court has compiled a list of commentary on last week's Supreme Court of Canada ruling that the security certificate process under which the federal government can detain and deport foreign-born terrorist suspects is unconstitutional ..."
• Canadian Government Response to Parliamentary Report on Security Certificates (August 25, 2007): "Earlier this week, the Canadian government published its official Response to the Twelfth Report of the House of Commons Standing Committee on Citizenship and Immigration. The House of Commons report (presented to Parliament on April 16, 2007) dealt with the security certificate system."

Age of Sexual Consent Amendment

As I mentioned in my post from October 18, 2007, the Canadian government has tabled an omnibus crime bill which, among other things, reintroduces proposed amendments to the Criminal Code that would raise the legal age for consent to sexual activity from 14 to 16.

For background information:

• Bill resurrected to raise consent age - Mixed reaction to move that's meant to curtail adults preying on youth (Toronto Star, October 19, 2007): "Child protection advocates heaved a sigh of relief yesterday while public health educators worried after Ottawa introduced a bill raising the age of consent for sexual activity to 16 from 14. The proposal has been controversial since it was first introduced in early 2006 as part of a move to crack down on adult predators who sexually exploit teenagers, often luring them over the Internet. While few argue with the bill's intent, some who work with kids say it could confuse kids in typical teenage romances and discourage them from seeking sexual health advice."
• Age of Consent to Sexual Activity FAQ (Justice Canada - September 2007)
• Bill C-22: An Act to amend the Criminal Code (age of protection) and to make consequential amendments to the Criminal Records Act (August 2, 2007 - legislative summary for the government bill that died in the last parliamentary session): "Critics also note that there are already protections for young people because it is currently illegal for people in positions of authority or trust to have sex with a person under age 18. In addition, opponents of Bill C-22 contend that changing the age of consent would remove discretion for judges to consider the circumstances of each case. A further criticism of Bill C-22 is that it comes from a government that wants young people to be charged as adults in court, but does not want them to be treated as adults when it comes to sexual matters (...) Another criticism of Bill C-22 is that it is misguided in its effort to combat the sexual exploitation of children. An age of consent of 18 for the purposes of prostitution has not stopped the majority of prostitutes from beginning work before that age. Rather than changing the law to raise the age of consent, some argue it would be more beneficial to concentrate upon sexual predators. To fight the exploitation wrought by the prostitution of young persons, the cause of that exploitation, namely prostitution itself, should be attacked. The reasons why young people are sexually exploited should be addressed before measures are taken to raise the age of consent."
• Age of consent FAQ (Canadian Broadcasting Corporation): includes a table with age of consent information around the world

New Canadian Network for Evidence-Based Legal Research

The Canadian Forum on Civil Justice website mentions a new Research in Action program devoted to "[D]eveloping the capacity to conduct evidence-based socio-legal research":

"Historically, issues of civil justice have been subordinated to criminal justice in terms of investment, research and media attention. During the last decade, however, there has been international recognition of the fundamental importance of civil justice systems. As interest in civil justice systems has increased, so has awareness of the need for high quality evidence-based socio-legal research. There is, however, a lack of socio-legal research capacity, both within Canada and internationally, especially in the many areas of non-criminal social research".

"In recognition of this need, the Law Foundation of British Columbia provided funding for a pilot project aimed at developing networks for evidence-based social research about systems of justice and related legal issues. Ultimately this project is intended to support our Research in Action program by developing a national network of socio-legal researchers. Although the Forum mandate concerns civil justice, we are aware that the need to increase socio-legal research capacity extends also to administrative and criminal justice areas. We therefore welcome researchers focusing on any of these legal areas to participate in the socio-legal network events and database".

The Forum has created a prototype for a database of socio-legal researchers and justice community members who want to collaborate in relevant research initiatives. The official database will be launched at the end of November 2007.

Canadian Government Tables Omnibus Crime Bill

Today, the federal government tabled Bill C-2 in the House of Commons, the Tackling Violent Crime Act.

The Act reintroduces many of the Conservative government's major crime bills that were debated during the last session of Parliament but never adopted.

According to the backgrounder prepared by Justice Canada, the Act would, if adopted:

• impose mandatory jail time for serious gun crimes;
• create tougher bail rules when a gun is used to commit a crime;
• increase the age of protection for sexual activity from 14 years to 16 years;
• crack down on drug- and alcohol-impaired driving;
• ensure that high-risk and dangerous offenders will have to prove why they should not be deemed a violent offender

News coverage:

• Tories dare Liberals to support new crime bill (Canadian Broadcasting Corporation): "The Conservatives introduced their new tough-on-crime legislation in the House of Commons on Thursday, challenging the Liberals to find a reason not to pass it (...) The Conservatives have declared Bill C-2, also known as the Tackling Violent Crime Bill, a matter of confidence. If the bill doesn't pass, Prime Minister Stephen Harper's minority government will fall and an election will be called. The bill contains elements of several previous crime bills that were never made into law during the last session of Parliament. Three of those bills passed in the House of Commons after opposition parties made amendments to them, but the bills then got stalled in the Liberal-dominated Senate."
• Harper reloads with crime ultimatum (Globe and Mail): "The Prime Minister insisted his government will not accept any amendments to an omnibus crime bill that will revive a series of bills killed when he prorogued Parliament. And Conservative sources said the new omnibus legislation will strip out some amendments that had been passed in the last session – forcing the opposition to accept at least some measures they deemed unacceptable last term (...) A Conservative source said that one portion, on tougher sentences for gun crimes, will reflect NDP amendments the Tories had accepted in the last session, but other portions of the new bill will undo opposition amendments – daring them to back down."

Supreme Court of Canada Courtroom Modernization Project Moves Ahead

The Supreme Court of Canada has just added a section to its website about its Courtroom Modernization Project.

Over the summer, Court staff installed new audio-visual equipment and wireless connections as well as imbedded laptops in the judges' benches. Judges started using the new equipment last week to call up cases and other appeal documents directly on-screen during hearings.

Display screens for counsel and media will be added in the Spring of 2008.

Future modernization initiatives include a web-based portal for electronic filing of appeal documents and webcasting of hearings.

New Supreme Court of Canada E-Filing Guidelines

The Supreme Court of Canada has redesigned the E-filing page on its website.

If you are arguing in an appeal scheduled for Fall 2008 and beyond, you are now required to file electronic versions of notices of appeal, factums, records and books of authorities on CD-ROM in addition to a reduced number of paper copies of your documents.

The website includes e-filing guidelines.

Canadian Homicide Rate Drops 10% in 2006

Statistics Canada reported today that the national homicide rate dropped 10% in 2006: 605 homicides were reported last year, 58 fewer than the previous year. However, rates for other serious violent crimes – such as attempted murder, serious assaults and robberies – rose in both 2005 and 2006.

Spouses, partners, family members and close friends were responsible for the vast majority of killings in 2006. Gang-related homicides represented about one-sixth of the total.

The four Western provinces recorded the highest homicide rates. Prince Edward Island and New Brunswick recorded the lowest rates among the provinces. Quebec recorded its lowest homicide rate in 40 years.

Regina reported the highest rate (3.97 homicides per 100,000 population) among Canadian census metropolitan areas, followed by Edmonton (3.68). Toronto, Canada's largest CMA, reported a rate almost identical to the national average (1.83).

Bucking the national downward trend was the Ottawa – Gatineau area, which reported an unusually high number of homicides (25) in 2006. The rate of 3.10 in Gatineau was the highest in almost 20 years, and Ottawa's rate of 1.81 was the highest in over a decade.

National Conference on the Charter and Criminal Justice in Canada

I missed this because I was away on vacation.

The Osgoode Hall Law School blog The Court has very good coverage of the September 29, 2007 National Conference on the Charter and Criminal Justice in Canada, one of the many conferences marking the 25th anniversary of the Canadian Charter of Rights and Freedoms:

"Last Saturday, September 29th, Osgoode Hall Law School’s Professional Development Centre was the site of an important and timely Continuing Legal Education symposium, the proceedings of which may be of considerable interest to readers of TheCourt.ca".

"The conference, organized by Osgoode professors Jamie Cameron and James Stribopoulos (who also serves as Editor-in-Chief of TheCourt.ca), offered presentations by a veritable 'who’s who' of Canadian criminal law practice and academia. Entitled The National Conference on the Charter and Criminal Justice in Canada, the meeting provided a platform for an array of divergent opinions on the place of the Charter within the past, present and future of our increasingly complex criminal justice system".

"It should come as little surprise to readers that twenty-five years after the entrenchment of the Charter’s legal guarantees, the substantive and procedural implications of those guarantees are still very much open to debate. While each presenter offered their own uniquely valuable insight, for editorial reasons the following review provides a synopsis of only a select group of the conference’s concurrent panels".

Earlier Library Boy posts about the 25th anniversary of the Charter include:

• Library and Archives Canada Exhibit for 25th Anniversary of the Charter (November 7, 2006): "Library and Archives Canada has put together an online exhibition Building a Just Society: A Retrospective of Canadian Rights and Freedoms for which it has 'invited a number of individual Canadians to contribute their personal thoughts and thought-provoking commentary on this vital section of our Constitution'."
• Conference on 25th Anniversary of the Charter of Rights (January 2, 2007): "The McGill Institute for the Study of Canada is hosting a conference from February 14 to 16 entitled The Charter @ 25."
• Survey on Canadian Attitudes Regarding Charter of Rights (February 8, 2007): "In conjunction with the McGill Institute for the Study of Canada's conference marking the 25th anniversary of the Canadian Charter of Rights and Freedoms, the Montreal-based Institute for Research on Public Policy (IRPP) asked polling firm SES Research to do a detailed survey of the attitudes of Canadians towards the Charter."
• Charter 25th Anniversary Conferences (February 21, 2007): "There are other conferences this year to mark the 25th anniversary of the Charter. Some of the key ones are: 25th Anniversary of the Charter - A Tribute to Chief Justice R. Roy McMurtry (Law Society of Upper Canada, April 12, 2007, Toronto) ... 25 Years Under the Charter (Association for Canadian Studies, April 16-17, 2007, Ottawa) ... A Living Tree: The Legacy of 1982 in Canada’s Political Evolution (Saskatchewan Institute of Public Policy, May 23-25, 2007, Regina)"
• Articles on 25th Anniversary of the Canadian Charter of Rights and Freedoms (April 6, 2007): "There are a number of articles in the most recent issue of Canadian Lawyer about the 25th anniversary of the Canadian Charter of Rights and Freedoms ..."
• Top Ten Charter Cases (April 14, 2007): "Last week, there was a symposium organized by the Law Society of Upper Canada in Toronto to mark the 25th anniversary of the Canadian Charter of Rights and Freedoms. For the occasion, as noted in the Osgoode Hall blog The Court, a panel of 10 top Supreme Court watchers came up with a list of the 10 most important Charter cases."
• Conference on Charter of Rights and Labour Law (August 18, 2007): "The University of Western Ontario is organizing a conference on 'The Charter and Human Rights at Work: 25 Years Later' on October 26-27, 2007 in London, Ontario. Beverley McLachlin, Chief Justice of Canada, will be the keynote speaker."

New Statistics Canada Report on Victim Services

Statistics Canada today released a new report on services for victims of crime in Canada.

The data is based on responses to a questionnaire from 697 victim services agencies and 8 criminal injuries compensation programs across Canada. Statistics Canada also took a snapshot on April 19, 2006, a day on which 636 victim service agencies in Canada reported serving 8,080 people.

On that day:

• The majority (72%) were victims of violent crime, such as sexual and physical assaults. Another 24% of clients experienced other types of incidents, such as property crimes, other criminal offences, or non-criminal incidents including suicides, drownings or motor vehicle collisions;
• Over two-thirds (68%) of victims who sought assistance on the snapshot day were female;
• Among female victims who had experienced a violent crime, 53% had experienced violence by a spouse, ex-spouse or intimate partner. A further 24% had been victimized by a family member other than a spouse;
• In contrast, 49% of males had been victimized by a non-family member, and 28% were victimized by a family member other than a spouse. The remaining approximate one-quarter had experienced violence at the hands of a spouse, ex-spouse or intimate partner.

The data has also been broken down by province and territory.

CIPPIC Paper on Government's Lawful Access Initiative

This is a follow-up to the September 14, 2007 Library Boy post entitled Canadian Government Consultation on Lawful Access:

"The purpose of this consultation is to provide a range of stakeholders - including police and industry representatives and groups interested in privacy and victims of crime issues - with an opportunity to identify their current views on possible approaches to updating Canada’s lawful access provisions as they relate to law enforcement and national security officials’ need to gain access to CNA [customer name and address] information in the course of their duties. The possible scope of CNA information to be obtained is later identified, but it should be noted from the outset that it would not, in any formulation, include the content of communications or the Web sites an individual visited while online".

Yesterday, the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa made its submission available. In its conclusions, CIPPIC remains highly sceptical of government arguments about the need for greater access to CNA information:

"Information identifying telecommunications subscribers can be highly sensitive given the electronic trail of publicly available and otherwise accessible data that individuals now leave about themselves on the internet and other digital devices as they go about their daily lives. For this reason, we submit that CNA information raises a 'reasonable expectation of privacy' on which a Charter challenge to laws permitting warrantless access could be based".

"Moreover, we remain skeptical about the need for these potentially intrusive and far-reaching measures. It is not clear that greater access by law enforcement to electronic communications will, in fact, increase the security of Canadians and it has not been demonstrated that no other, less privacy-intrusive, measure would suffice to achieve the same purpose of enhanced security. In particular, the permitted purposes for demanding CNA information are far broader than required to solve specific problems such as gaining access to next-of-kin information in emergency situations, or acting on tips quickly in exigent circumstances".

"Finally, the safeguards proposed are insufficient, in our view, to protect individuals from over-reaching and abusive exercise of police powers. In particular, there should be no expansion of police investigatory powers without a corresponding increase in independent oversight".

Follow-Up on Supreme Court of Canada Judges' Policy Preferences

This is a follow-up to the September 20, 2007 Library Boy post entitled Do Supreme Court of Canada Justices Change their Policy Preferences After Their Appointment?.

That post presented a new paper by University of Toronto law professors Andrew James Green and Benjamin Alarie who attempted to empirically measure how ideologically driven Canada's top judges have acted.

On October 4, 2007, Alarie published a comment in the Osgoode Hall Law School blog The Court entitled Policy Preference Change on the SCC: New paper looks at whether we can precict how appointees will rule:

"The net result of the empirical analysis is this: despite some notable exceptions, most particularly Justice L’Heureux-Dubé, the justices of the Supreme Court of Canada do not, by and large, vote in ideologically predictable ways either in the short-term or on a long-term basis. In addition, their policy preferences are in a constant state of change; at any given time, some justices will be changing little, others will be moving in a more 'liberal' direction, and others will be tending towards a more 'conservative' approach. We show that justices who served from 1982-2004 do not appear to have been particularly ideologically driven, especially in comparison with their colleagues on the U.S. Supreme Court".

Alarie has also elaborated on the research on the University of Toronto Law School Faculty blog: Supreme Court of Canada Justices are Unpredictable -- Mostly.

The most recent issue of The Lawyers' Weekly also discusses the Green/Alarie paper in the article Supreme Court of Canada judges ‘unpredictable,’ not ideological:

"Alarie’s and Green’s working paper, entitled 'Policy Preference Change and Appointments to the Supreme Court of Canada', also demonstrates that newspapers’ characterization of a new judge’s purported political leanings when he or she was appointed was predictive of little or nothing in a judge’s subsequent voting record (which goes to show, perhaps, that most Supreme Court appointees have been inscrutable to everyone except their families and legal insiders)".

(...)

"The study, which remains a work-in-progress, also undercuts the notion that most of the judges have come to the court with a 'pre-loaded' and unwavering policy orientation. In fact, their decisions show that the views of many of the judges have shifted over time".

Fall 2007 Issue of News & Views on Civil Justice Reform

The Fall 2007 Issue (Number 10) reviews some of the recent family law innovations in Canada and abroad:

• The Talking Together Program (about aboriginal legal services)
• Excerpts from the Final Report to the Family Court of Australia on The Children’s Cases Pilot Project
• Family Court Pilot of Trinidad and Tobago
• British Columbia Family Justice Information 'Hub'
• Availability of Family Law in French
• A Self-Represented Family Litigant
• Cross Country Snapshots - Family Courts in Transition

News & Views on Civil Justice Reform is a publication of the Canadian Forum on Civil Justice at the University of Alberta in Edmonton.

Supreme Court of Canada Library: New Titles

The list of new library titles added to the Supreme Court of Canada collection for the period of September 16th to 30th, 2007 is available on the Court website.

The web page explains: "The Supreme Court of Canada Library does not lend materials from this list, which is provided for information only."

But, once the material goes into the general collection, after about a month, the works do become available for inter-library loans to authorized libraries.

It is possible to subscribe via e-mail to receive the list.

Jetlag Boy (I Mean Library Boy) Is Back!

Hello everybody. It has been 3 weeks since I posted. Viviane (Mrs. Library Boy) and I have been away on our belated summer vacation.

We were in Belgium (my father's place of birth), Munich (where we stayed with a friend of Viviane's, a German language professor at the Goethe Institute), and finally in Paris for 3 very full days of long walks, gallery visits, expeditions to pastry shops and lunches/suppers with relatives, family friends and professional contacts.

Thursday evening, we had supper with Viviane's uncle Gabriel Garran, a leading French theatre director who has had a fascinating life and who has known many of the greats of the French theatre world: Jean Vilar, creator of the Théâtre national populaire and the founder of the Avignon Festival, Patrice Chéreau, Ariane Mnouchkine, etc. Gabriel is still very active and Gallimard, one of the big French publishers, will soon publish his play based on the correspondance of novelist, war hero and diplomat Romain Gary (ex-husband of Jean Seberg) and theatre/cinema giant Louis Jouvet.

On Friday in Paris, we had lunch with Stéphane Cottin, head of the registry and of IT services at France's Conseil constitutionnel, and one of his colleagues. The Conseil is located in the Palais Royal, next door to the Comédie française theatre and a stone's throw from the Louvre. We had a fairly wide-ranging conversation, going over some of the differences in civil and common law philosophies, the role of judicial precedent in our respective systems, the impact of politics on the courts in France, the controversial new Justice Minister Rachida Dati some have called France's "Iron Lady", etc. And of course, we talked about President Sarkozy and the rumours of his imminent divorce from his wife Cécilia (who doesn't love gossip?).

One interesting difference between France and Canada, a difference that astounded me, is the fact that French citizens do not have access to various judicial or administrative recourses that Canadians take for granted, most notably class action lawsuits. If I understand correctly, President Sarkozy has set up commissions to examine various legal reforms, including something that would resemble class actions à la Canada. But we are light years ahead of many of our European colleagues when it comes to helping the "little guy", as the Globe and Mail reported yesterday in an article entitled Class action is turning little-guy lawsuits into giants:

"In the decade or two that class actions have existed in Canada - beginning on a date that varies according to province - they have gone from being a rare curiosity to a staple of many law firms".

"Estimates of how many class actions are in motion vary. While a Canadian Bar Association website lists 80 that were launched in the first eight months of this year alone, the full number is likely to be significantly higher (...)"

"Class-action warfare has gone on over veterans' pensions, mad-cow disease and numerous stock swindles, such as the Bre-X gold mine scam. In the past month alone, class actions have been launched against toy makers (over lead paint used on their products); telephone companies (to recoup more than $20-billion in surcharges on monthly cellphone bills) and auto companies (for charging Canadian customers far more than their American counterparts for the same vehicle)".

Friday evening, we were invited to have supper at the home of a friend of my father, a woman who practices law in Paris. I learned to my surprise that she had been consulted by Kraft in the case of Euro-Excellence Inc. v. Kraft Canada Inc. that was decided on earlier this year by the Supreme Court of Canada. Small world. Getting even smaller.