From time to time people call us looking for help finding legal information. Recently I spoke to a woman about an issue she was having with a tenant. We conversed for awhile before I realized that she was calling from Florida. Yikes! We provide Canadian legal information. She’s living under a whole different set of laws and a very different legal system. Her internet search had led her to us and she didn’t even realize that she was calling Canada. That’s the problem with the internet. Good information is available, but you have to be on your toes to check if it is relevant and accurate for your situation.
LawNow Magazine Officially Launches as a Free Digital Magazine
Today is a day to celebrate for LawNow staff, the Legal Resource Centre and the Centre for Public Legal Education Alberta. Today we launch the new, totally re-designed LawNow website. It is a day to share with you how very far we have come. In 1975, LawNow began as a short, small, black and white newsletter called Resource News with content entirely generated by Legal Resource Centre staff. It was targeted for law librarians and lawyers and it featured news of interest to the legal and library communities. By 1980 Resource News had evolved into a 24-page magazine and it began to feature articles about the law from contributors from outside the Centre, a major development. In 1989 a complete revamp of the magazine saw it re-christened LawNow. This new magazine featured lots of material from volunteer contributors, the use of photos and illustrations on the cover and inside, and even the use of colour. Only one colour, but still, colour!
Now, in 2012, LawNow is once again undergoing a transformation. We made the move to a digital-only format in 2010. At the time, it was due to budget constraints, but more and more we are feeling that digital publishing will be the way of the future and we are capturing that evolution at just the right time. And, just this year, we were able to offer LawNow free of charge. We are so excited about the possibilities that this opens up: the tremendous potential to raise our profile across the country, the schools, law firms, not-for-profit organizations and libraries we will be able to reach, and the thousands of new readers we can attract.
To help us celebrate, check out our latest issue; it’s all about sex and taxes! Our Feature examines the Canadian tax system and where to turn when you have a tax issue. Our Special Report looks at where sex and the law meet: prostitution, sex tourism, gender identity. Our regular columns provide practical information on a variety of topics, including human rights law, not-for-profit law, employment law, family law, and more!
If you’d like to receive notice when new content is published, sign up for LawNow email updates.
Visit www.lawnow.org to see what all the excitement is about!
Thanks for your support,
Teresa Mitchell and Kristy Rhyason
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Teachers Talk LawNow – Jim Keegstra
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.
“R. v. Keegstra was such a landmark freedom of expression case that aspects of this issue were considered in three separate trips to the Supreme Court of Canada between 1990 and 1996.”
This LawNow article is available to download in the July/August 2012 issue of LawNow magazine :
- What Ever Happened to … Jim Keegstra – Peter Bowal and Craig Graham
This weeks blog shifts out of the classroom and into the staff room. Jim Keegstra was a teacher from Eckville, Alberta. For years he had been teaching students his own brand of history that included Jewish conspiracies and other anti-Semitic content. Eventually he was charged with criminally promoting hatred against an identifiable group.
Many recently graduated teachers studied this case in University and older teachers will remember the news coverage. Leave this article on a coffee table in the staff room and see what discussions it creates. Some discussion points to get your started are:
- How could Keegstra teach his opinions for so long and could something like this happen today?
- What limits should there be on “free speech”?
- If Keegstra had kept his opinions out of the classroom, but still made them public, should he have kept his job?
Bill C-26 attempts to make sense of self-defence
A couple of weeks ago, we posted a blog explaining how the newly assented Bill C-26 changes what constitutes a citizen’s arrest. Today, we’re also going to focus on Bill C-26, but we’ll be looking at clause 2 of the bill which makes changes to the defence of self-defence.
When someone is officially charged with a crime they become known as “the Accused”. Sometimes, the Accused pleads “not guilty” to the charge because, although s/he committed the action question, s/he believes s/he has a legally valid reason for having done so. One such possible legally valid reason is “self-defence.” An example: a man walking in park thinks he is about to be mugged, the would-be victim fights and seriously wounds the would-be robber. Although the one did in fact hurt the other, thereby arguably committing “assault”, the victim could argue that he was just acting in self-defence and therefore should not be convicted of any crime.
Prior to Bill C-26, the Criminal Code definition of self-defence had been described by police, prosecutors and the courts as confusing and overly complex. Self-defence spanned four sections of the Criminal Code (sections 34 to 37). The criticism for this lack of consolidation made it to the Supreme Court where, in R v McIntosh, Chief Justice Lamer condemned sections 34 and 35 for overlapping and being inconsistent.
Prior to Bill C-26, whenever self-defence was argued, the court had to figure out which of the four sections the case fit under. For example, it could have been a case of an unprovoked attack that fit under section 34(1). Or perhaps the person arguing self-defence applied grievous bodily harm (either intentional or non-intentional), thus shifting it to section 34(2). Or maybe it was an incident of provoked assault that fell under section 35. It could have even been a section 37 case of self defence of another person (ie: not only defence of the self, but defence of another). The procedure of figuring out which section each individual case fit under was cumbersome and confusing. Parliament decided that the defence of self-defence needed a consolidated definition and passed Bill C-26.
Bill C-26 endeavours to simplify self-defence and make it easier to understand. It eliminates sections 34 to 37 of the Criminal Code and replaces them with a single “self-defence” section – the new section 34. Under the new section 34 the court no longer has to distinguish between provoked and unprovoked attacks, or look at whether the person claiming self-defence applied grievous bodily harm, because all references to those terms have been removed.
The new section 34 maintains that a person will not be guilty of an offence if they defend themselves in a situation where they reasonably believe that force or a threat of force is being used against them. The actions they use to defend themselves must also be reasonable. Self defence of another person is also included under the new section 34.
Today, if an accused argues self-defence the court will look at the entire circumstances of the incident to determine whether the actions used by the accused were reasonable. It may look at things like whether it was imminent that force was going to be used against the accused, whether the two parties involved had a history, or the size, age, gender and physical capacities of the parties. As is often the case, there is no definitive definition of what is reasonable, so this list (and the larger list outlined in the new section 34) is not exhaustive.
The result of Bill C-26 is a definition of self-defence that should be easier for everyone to understand. But like many law related issues, things are seldom cut and dry, and the reasonableness of each individual case is what will ultimately decide if it’s a case of self-defence.
Let us return to our example. Under the old law, a court would have had to first determine what section to apply. Was it provoked – so s.34(1) or 35? Was the bodily harm grievous enough to fit into 2.34(2)? Or not? What if it fits under more than one category? What is we choose the category? What if we get results in different categories? Under the new law, we don’t need to worry and argue about all of that, we would just need to look at what happened and whether the person’s actions were reasonable in the circumstances.
To learn more about how Bill C-26 attempts to make sense of self-defence, see the legislative summary of Bill C-26, and scroll down to clause 2.
New and Improved FREE LawNow!
Good news, everyone!
Our much cherished publication, LawNow Magazine, is going to be completely free as of September 2012.
We are very excited about this new phase in the continual development of LawNow. We believe this change will allow greater access to LawNow’s valuable content and will help us reach new audiences.
In addition, based on feedback we received from many of our subscribers, the LawNow website is being completely redesigned. You can look forward to easier to read articles, greater searching capabilities, and no login! LawNow will continue to include all of the features and articles that showcase the best in practical public legal information and education.
To keep up-to-date with what’s happening with LawNow subscribe to the LawNow Updates.
We are confident that you will enjoy the new LawNow, and encourage you to visit the new and improved website at www.lawnow.org in the fall.
How about now? Now, is assisted suicide legal?
A few weeks ago, we wrote a blog post about the British Columbia Supreme Court (BCSC)’s decision regarding assisted suicide. As mentioned in that post, as well as in our subsequent post about constitutional exemptions, the original decisions were already in the process of being appealed.
You will recall that the BCSC made two findings:
- that section 241(b) of the Criminal Code of Canada (“s.241(b)”) is unconstitutional, because it discriminates against persons with disabilities (but that that law would remain in effect in one year, thus giving the government time to deal with the declaration of invalidity); and that
- in the interim, in order to provide Ms. Taylor with the only meaningful remedy, she was granted a constitutional exemption (i.e.: despite the law still being in effect, she could, during the next 12, commit physician-assisted suicide).
The finding of unconstitutionality is set be heard by the British Columbia Court of Appeal (BCCA) in early March 2013. In the meantime, the parties agreed to argue about the issue of the constitutional exemption. The exact issue in question: whether or not to grant a “stay” to the constitutional exemption (i.e.: put the exemption on hold until the whole matter is heard next March [in other words, take away Ms. Taylor’s constitutional exemption]). The parties’ submissions were heard on August 3, 2012 and a judgment was issued on August 10, 2012.
In short, the constitutional exemption stands. Between now and the time at which the BCCA decides on the issue of the constitutionality, Ms. Taylor is free to find a doctor to help her commit suicide, and, if she does, that doctor will be exempt from prosecution under s.241(b).
Why? Well that is a little more complex. In a nutshell , in deciding whether to grant a stay, the Court, in accordance with the law governing the granting of stays, had to look at 3 things (there is almost always a 3-part test!):
- whether there was a serious question to be tried;
- whether Ms. Taylor would suffer “irreparable harm” if the stay were granted (i.e.: if her constitutional exemption was taken away from her); and
- whether the “balance of convenience” favours granting the stay.
So what did the Court say? Not surprisingly, on the first question, it found that the issue was, indeed, quite serious.
On the second issue, the Court noted that Ms. Taylor would suffer irreparable harm. Madame Justice Prowse noted:
The first, and most significant, is the irreparable harm which she would suffer if her condition deteriorated to the point where she wished to exercise her rights under the exemption pending the resolution of this appeal, but, because of the stay, she was unable to do so. In that circumstance, all of her worst fears would be realized and she would be forced to endure the very death which she has fought so assiduously to avoid […]The second category of irreparable harm […] is the loss of the peace of mind and solace now available to her as a result of the exemption, in knowing that if living becomes unbearable to her for any of the reasons she has given, she can bring her life to an end upon fulfilling the requirements set forth in the order governing the exemption. The exemption also gives her the potential for a longer life since she can continue to live, even in difficult circumstances where she may be incapable of ending her own life, if she still enjoys some quality of life which she considers makes it worth living.
On the third issue, the court found that this potential harm to Ms. Taylor, would outweigh any harm that would come to the federal government if Ms. Taylor were allowed to keep her constitutional exemption. The Court, in responding to the government’s argument that allowing Ms. Taylor’s suicide would appear to the Canadian public as “state-sanctioned” devaluation of human life stated: “I am not persuaded that the harm to the public […] outweighs the harm to Ms. Taylor if she is left without a remedy pending the resolution of this appeal, and possibly at all. She may be a symbol, but she is also a person, and I do not find that it is necessary for the individual to be sacrificed to a concept of the “greater good” which may, or may not, be fully informed.”
So how do we summarize this decision in one sentence?
Well…. Allowing the one physician-assisted suicide may cause the government some harm, but the harm to Ms. Taylor of not letting her do it is worse – so she wins.
The answer, then? No. Unless you are Ms. Taylor, physician–assisted suicide is still illegal.
On Drunk Driving and the Constitution
In December 2011, the Legislative Assembly of Alberta passed the Traffic Safety Amendment Act, 2011 (the “Act”), which increased penalties for impaired drivers in Alberta. These changes were then incorporated into the Alberta Traffic Safety Act, and some of those changes recently came into effect.
In brief, the Act introduced progressive penalties for drivers with blood alcohol concentrations (“BAC”) of .05 or greater; added tougher penalties for drivers with BACs of over .08; and established a stronger zero tolerance policy for new drivers. In many ways, these changes are similar to changes that were introduced in British Columbia a few years ago.
Let’s look at some of the differences in a bit more detail.
Under the old law, Alberta drivers caught with BACs of .05 or greater are subject to a 24-hour suspension. Under the new law (see s.88 of the Traffic Safety Act), starting September 1, 2012 these same drivers would be subject to the following:
- for first-time offenders, an immediate (i.e. roadside) 3-day licence suspension and a 3 day vehicle seizure;
- for a second offence, an immediate 15-day licence suspension and a 7-day vehicle seizure, and a mandatory remedial course (for which the driver must pay); and
- for third (and subsequent) offences, an immediate 30-day suspension and 7-day vehicle seizure for third, a remedial course, and a mandatory review by the Alberta Transportation Safety Board.
Under the old law, Alberta drivers caught with BACs of .08 or greater faced criminal charges and the possibility of having to install a device in their car that tests the driver’s breath and prevents the car from starting if it detects the presence of alcohol (the “ignition interlock”). The installation, removal and rental fee of the ignition interlock had to be paid for by the driver. The requirement for the ignition interlock was discretionary (i.e. it was up to the police to decide if that would or would not be a requirement). Under the new rules, drivers whose BACs are over .08:
- will continue to face criminal charges;
- will have their licences immediately suspended until the charges are resolved; and
- for a first conviction, will require the ignition interlock for 1 year, for a second conviction will require it for 3 years, and for a third conviction will require it for 5 years (all still at the driver’s expense).
Under the old law, new drivers were already required to maintain a BAC of zero. However, now tougher penalties are in place. Graduated drivers who arestopped with any blood alcohol level at all will receive an immediate 30-day licence suspension and 7-day vehicle seizure. In addition, each such 30-day suspension will require one additional year in the Graduated Licence Program.
Drivers who have been accused under these provisions may: request a second roadside breath test; and challenge these penalties by appealing to the Alberta Transportation Safety Board (ATSB) before their criminal trial. However, the license suspension remains in effect during any appeal process.
Although we can likely all agree that driving under the influence is a bad thing (no matter how much we might like MadMen) and that BAC-related motor-vehicle accidents are high, the interesting question here will be whether or not this law will last.
The problem? Well – that pesky constitution of ours again!
Just for fun, let’s take a look at two sections that might come into play.
- Some might argue that the new rules are “criminal” in nature and that, therefore, the provincial government has no right to pass such laws (criminal laws are in the federal jurisdiction – s.91(27) of the Constitution Act, 1867). This argument was attempted in British Columbia after it passed similar legislation. Although the British Columbia Supreme Court found that the provisions in question were not outside the jurisdiction of the province (see Sivia v British Columbia (Superintendent of Motor Vehicles), “Sivia”), an Alberta court might not make the same finding (as always, the devil is in the details!);
- Section 11(d) of the Canadian Charter of Rights and Freedoms provides that: “any person charged with an offence has the right […] to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. In the original law discussed in Sivia, it was not possible for the results of the roadside screening device to be challenged. That has since been changes, and, as noted above, the Alberta rules do provide for an appeal to the ATSB). However, that appeal could take longer that the suspension itself (especially for first-time offenders). The question therefore, is whether that is enough of an appeal mechanism to satisfy s.11(d) of the Charter. In addition, some might argue that that the indefinite license suspension means that more people will simply plead guilty right away so they can get their license back.
Whoever said the constitution wasn’t interesting?
For more information about the new rules, see the information provided on the Alberta Transportation website.
For more information on the constitutional implications, please see this article by the University of Alberta’s Centre of Constitutional Studies.
Teachers Talk LawNow – Electoral Reform
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.
This LawNow article is available to download in the July/August 2012 issue of LawNow magazine :
- “Corruption and Scandals – A Modest Proposal – Electoral Reform “ Phil Lister, Q.C.
Who doesn’t love a good scandal? Politics can be a hard sell to some kids. Grab their attention by starting your lesson with a discussion on political scandals. This article is a great conversation starter to get kids to think about electoral reform and how elections work in other countries.
Evaluating Electoral Systems
1. Place students in small groups to review the article and then answer the question, “what reforms to our political system (if any), are required to keep democracy healthy in Canada?”
2. Students will research electoral systems in other countries to create a proposal to change or protect our current electoral system.
3. Hold a class referendum where groups present their proposals to the class. Guide students in a debate on the merits of each proposal.
4. Conclude the lesson with a final class vote on the proposals.
Teachers Talk LawNow – The Olympics and Doping
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 Article available to download in the July/August 2012 issue of LawNow magazine :
- Which Passport Should I Take to the Olympic Games? – Hilary Findlay
Athletes that cheat ruin the spirit of competitive sports, but they also provide “teachable moments” for science teachers. Talking about doping in the Olympics is a stealthy way to teach biology to students. This LawNow article discusses new anti-doping efforts at the London Olympics. This is an excellent opportunity to teach about body systems, specifically the circulatory system and respiratory systems.
Circulatory and Respiratory Student Teaching
1. Divide your students into small groups. Assign the circulatory system to half of the groups and the respiratory system to the other half.
2. Students will research their system and prepare an interactive presentation for their classmates. This presentation should include
- the role of the circulatory or the respiratory system in the body;
- the parts of the system and their function; and
- an explanation of blood doping and how it relates to their body system.
3. Pair the circulatory system groups with respiratory system groups and have students perform their presentations to each other.