The Supreme Court has struck down the Harper government’s Victim Surcharges as “cruel and unusual” — a surprising move to many Supreme Court watchers. Lisa Kerr helps break down the SCC decision, the rationale behind it, and the way she feels the court got it right — and wrong.
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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I’m Matt Shepherd, and sometimes I get distracted by the headlines. That’s why a very important story almost slipped past me last week, a Supreme Court decision against an immensely controversial legacy of the Harper government mandatory victim surcharges. On the surface, they seem like a blow for victims’ rights and justice for all, but as unpacked by Lisa Kerr, they were often the opposite of just. Lisa is the developer and instructor of the Criminal Law Module of Law 201-701, Introduction to Canadian Law. She’ll take us through the legislation, the Supreme Court decision, the nature of Supreme Court dissent, and the way she thinks the highest court in the land got it right and wrong. This podcast is brought to you by The Queen’s Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.
01:06 MS: I hear there’s a new Supreme Court case. Tell me what it’s all about.
01:09 Lisa Kerr: Yeah, so this new case that was just handed down is called R v Boudreault, and many in the legal community were excited to see this decision because it was the first decision written by Sheilah Martin, one of the new appointees to the court. She’s been on the court for about a year, but this is a decision authored by her. She writes the majority opinion, a 7-2 decision that’s all about whether those who are convicted of crimes also have to pay a mandatory fee along with any other punishment that they are faced with. And the big question in this case was, is it fair to have a mandatory fee imposed on someone for having committed a crime, no matter whether they are very poor, whether they’re very marginalized, whether they really have any ability to pay?
02:00 MS: And was this was relatively recently introduced, too.
02:02 LK: Well, so for many years in the criminal code, a judge had the discretion to impose a fine, a victim surcharge along with any other punishment. But in 2013, the Harper conservatives, as part of their victim rights type legislation, tough on crime legislation, they amended section 737 of the code and made it mandatory. So this was called the mandatory victim surcharge and what it said, this new law as of 2013 was that judges had no discretion here. If someone was convicted of a summary offense, so a less serious offense, then the judge had to impose either 30% of any fine or a minimum of $100. If it was an indictable offense, a more serious offense in our system, then the judge had to impose at least a $200 fine. And those sound like small numbers to many of us, $100, $200. But you have to consider that many people might be facing multiple convictions on different counts. It may all be very low level: Uttering threats, mischief, those kinds of offenses, that in our system we consider fairly non-serious. And that many of these people are people who are living on $800, $900 of social welfare of some kind or another, per month.
03:30 LK: And in fact, many of the appellants or plaintiffs in the case at bar, that was exactly their situation. Just to grab one example, one of the litigants was a blind woman, who had a monthly income of $831, and 800 of that went to her rent, so she had $31 of disposable income on a monthly basis. She was convicted of uttering threats, and she wound up with $200 in a mandatory victim surcharge. For her, that amount of money, it wasn’t possible for her to pay it. And so, what she’s facing as a result where what the court considered to be indefinite punishment. Because she was always at risk of being brought before courts for a committal hearing and so on. And this issue of this unpaid fine would really follow this woman indefinitely. That’s why these issues wound up getting litigated.
04:28 MS: So bringing this up to a more structural level, judges do have a fair amount of discretion, but there are some things they just can’t say no to.
04:36 LK: So that’s the whole discussion when it comes to mandatory penalties. We talk about mandatory minimum sentences, and typically what we’re talking about there are mandatory sentences for where a judge has to send you to jail or prison for a particular amount of time. And those have been in the headlines a lot the last few years and we’ve seen the Supreme Court strike down a few, three in total, mandatory minimum terms of incarceration.
05:04 LK: This is also a case about a mandatory punishment. But here we were talking about a mandatory fine that would be imposed in addition to any other punishment and so the judge has no discretion not to impose it. So what you saw going on in the last few years in the court system, where many lower court judges, particularly Provincial Court judges in Ontario really did not want to impose these fines.
05:29 MS: Right.
05:29 LK: There was almost a judicial revolt in the Provincial Court about it. And why? Because these are judges who see these people in and out of the court system and they know there’s no ability to pay, and they know that they’re just imposing yet another burden on this person that actually isn’t going to further their rehabilitation, really isn’t going to sort of help them in life in any way, but it’s just gonna be another sort of hassle, administrative challenge that they really cannot meet. And so you saw these lower court judges, avoiding these penalties in all kinds of creative ways, declaring them unconstitutional and so on. So with all these cases, the issue eventually did get up to the Supreme Court and generated this opinion.
06:09 MS: Right. No, you saw, there’s a lot of creativity going on there like, “Yeah, there’s a fine, but we’re gonna give you a hundred years to pay it.”
06:14 LK: Right. [laughter]
06:15 MS: That kind of thing. So, why the Supreme Court? Why did this have to get all the way up there? Is it because this was originally kind of a federal ruling?
06:25 LK: Yeah, so the reason it has to go to the Supreme Court is that what was happening was these Provincial Court judges were trying to avoid it. A couple of them tried to say it was unconstitutional, but they were getting overturned in the Superior Court system. So eventually these issues just continued to be litigated until the Supreme Court had a chance to weigh in. And what the Supreme Court said in this majority opinion was that these mandatory fines in at least some cases, not in all of course, but in some cases they were generating cruel and unusual punishment. Some were surprised by this decision because Section 12 of the Charter, which prohibits cruel and unusual punishment, is typically considered to be a pretty high bar. Pretty hard to say that a punishment has violated it. The language in the law is that the punishment has to outrage standards of decency, it has to be an abhorrent or an intolerable punishment. So that sounds like something that has to be pretty severe.
07:25 MS: So can you give me an example of something else that has been deemed cruel and unusual?
07:29 LK: Yeah. So in the mandatory minimum area, there’s been seven-year prison sentence for importing narcotics, even if the narcotic was just marijuana, even if it was just a single joint, even if the offender was a first-time offender.
07:47 MS: Right.
07:47 LK: So in that case, which is called Smith from 1987, the Supreme Court said that’s abhorrent and intolerable, we’re not gonna send that person to prison in all cases for seven years.
07:57 MS: Right. That’s pretty stark.
08:00 LK: That’s a stark one. And then of course, there’s a lot of jurisprudence saying that there are particular kinds of penalties that are unconstitutional in our system. So that would include things like capital punishment, things like corporal punishment, those kinds of methods of punishment that are no longer acceptable in our society. But there was a real question, would a fine, and particularly a fine that at least to those who haven’t thought carefully about the situation that marginalized people are in in our society, a fine looked fairly modest.
08:34 MS: Right.
08:35 LK: Yeah, and so some were surprised to see this majority opinion from the court, but when you dig into the reasons, you start to see, “Wow, the people that the court was thinking about here, they really are in circumstances where this fine is not payable.” And they can mount. It could be hundreds of dollars, it could be thousands of dollars at the end of the day, and it really was serving no valid penological purpose. And so, I think the majority opinion just took a really realistic view at the life circumstances of people who are very low income in our society and just said, “You know what, no. We’re not gonna say that this kind of punishment is valid in our system.”
09:20 MS: So what was the foundation for the dissent?
09:23 LK: Well, the dissent, there were two judges in the dissent, Justice Cote and Justice Rowe, and they sort of said, “It’s a very high bar to say that something is cruel and unusual punishment.” They said, “There’s only been three cases in Supreme Court history where we have found a punishment to be cruel and unusual.” And that’s true. And each of those were about prison terms in the range of three to seven years. And those are all fair points. One thing the dissent did that I think was a little odd was they tried to compare this punishment, this fine, to methods of punishment that no one would try to suggest were acceptable. So they talked about lobotomizing, they talked about castration of sex offenders, they talked about these kind of extreme corporal sanctions that are quite obviously no longer acceptable in either our society or pursuant to the Charter. And so I thought that comparison was a little bit extreme.
10:33 MS: Right. They’re throwing up some straw men, kind of.
10:35 LK: Yeah, and there’s something sort of American about that approach, right? This notion that Section 12 of the Charter is really only about saying that these sort of ancient methods of punishment cannot be used in modern society. And I actually think that Section 12 of the Charter, that it’s okay for it to evolve and for it to represent the standard of a modern society and a society in which we understand that a fine for a very poor person is going to be a very different kind of punishment than it will be for someone of more means.
11:14 MS: Right.
11:15 LK: And so, really, what the majority judgment said was, “Listen, for a marginalized person, this is a very extreme punishment and you or I may not really get that, but when you dig in to the amount of income that some of these folks have at their disposal on a monthly basis, you realize this sanction is unacceptable.”
11:35 MS: Right. So getting back to these rulings and what happens after these rulings, is it like someone just pulls out a big law cancelled stamp and stamps the law and it goes away? Or does it get sent back for adjustment?
11:47 LK: It’s a great question ’cause in many cases, especially recently, where courts declare a provision unconstitutional like they did here, they’ll often give government some time to fix the law. That’s called a suspended declaration of invalidity, it’s where you basically say, “We’re declaring this law invalid, but Parliament gets some time to fix it.”
12:07 MS: I fuzzily recall something about prostitution laws being in that category for awhile.
12:12 LK: Sure. I mean, most of the big Charter cases, the government did get at least a year to go and fix the laws. Why did they get a year? Well, it was sort of an idea that it was in the public interest to not just have a sort of vacuum, a gap in the law that we should give Parliament a chance to re-draft the law. In this particular case, they did not get that suspension. The judgment had immediate effect. The provision is unconstitutional, and that was because there really was no public interest that is being served by the imposition of these fines. There won’t be any sort of problem for society…
12:51 MS: Right.
12:51 LK: If these fines aren’t imposed.
12:53 MS: I don’t wanna get too far down the rabbit hole of kind of the mechanics of the law that is now off the books. But where did that money go?
13:02 LK: As far as I understand, each province was administering the funds because the administration of justice in our system is a provincial matter, even though the criminal law is a federal matter. So actually, that was actually part of the case and it was interesting. Each province was enforcing collection of the fine in a different way. And so, that was an additional issue that the majority was concerned about, which was issues of fairness. For some, in some provinces, they were facing tactics by collection agencies and so on. And others in other provinces were not facing those kinds of challenges. So there was variation, but the purpose of the collection of the fine was supposed to be to support victim services, and the majority said, that was of course a perfectly acceptable government aim, but that it still didn’t justify the sort of dysfunctions of how the provision was working.
14:11 MS: Right, so what happens next?
14:14 LK: Well, I mean this issue is kind of over.
14:17 MS: Okay.
14:19 LK: [laughter] The Supreme Court, as we say, gets to be right because it’s last. I think in terms of implications of this decision, it suggests to me that many of the other mandatory minimum penalties that are still on the books are not valid.
14:37 MS: Right.
14:38 LK: There’s been talk in recent years about a commitment that the governing Liberal Party made in its campaign, and while it was in opposition to reverse a lot of the work that the Harper conservatives did in passing mandatory minimums. They made these commitments. Many have noted that the liberals haven’t acted yet on fixing mandatories, on removing many of the mandatories for drug and gun offenses that the conservatives and previous liberal governments brought in. They haven’t acted on that. They’re being litigated all over the country, just dozens upon dozens of cases right now where defense counsel are challenging mandatory minimums in all kinds of cases; they are being struck down all over the place. And to me, the most significant impact of this Boudreault decision is gonna be to say if a $100 fine is cruel and unusual punishment, then a six-month jail sentence, depending on the facts of the case and the offense of course, it’s gonna be a lot easier for defense counsel to say that too is cruel and unusual punishment.
15:47 MS: And now that there’s a Supreme Court ruling, we’re a precedent-based system, so if the highest court in the land sets a precedent that this is cruel and unusual, it trickles down?
15:57 LK: Yeah, and in this way, definitely. And in this way, I would agree a little bit with the dissent. So the dissent was really emphasizing that in our history, this cruel and unusual punishment concept has been quite a difficult concept, as in it set a difficult threshold for people to meet. It’s a very high threshold. You have to prove that it would shock, that the punishment would shock the conscience of ordinary Canadians. And I think many scholars, including myself, thought that that was really way too high of a bar. Why don’t we have a system where punishment has to be proportionate and fair?
16:37 MS: Yeah.
16:37 LK: Otherwise, it’s unacceptable. Instead, we had this rule that said, Parliament can kind of impose whatever punishments it wants, and as long as it doesn’t reach this very high standard of shocking the conscience of ordinary Canadians, then it’s okay even if it’s disproportionate, even if it doesn’t achieve a legitimate penological purpose, even if it doesn’t really meet the other principles of sentencing in the criminal code. And I think the dissent is right to say, “This has been a high standard.” And so I think the majority judgment does move the law in a different direction and does suggest to lawyers that the standard is not as high as we thought it was before.
17:19 MS: Right. I mean, even the words ‘cruel’ and ‘unusual’ don’t imply shocking to me.
17:23 LK: Oh, really?
17:23 MS: Well, there’s lots of stuff that’s unusual that doesn’t shock me. Like, I mean, a strangely shaped Cheerios unusual, but I’m not shocked when it lands in my bowl.
17:32 LK: Well, it does have to be cruel and unusual. [laughter]
17:35 MS: Right. Fair enough.
17:37 LK: But I think it raises an interesting point, which is, these are just words.
17:42 MS: Right.
17:43 LK: And they always require interpretation. And until now, I think it’s true, I agree with the dissent, we have interpreted the standard as really requiring quite a lot, and I think this majority judgment suggests to us that this question of what we’re gonna say is cruel and unusual, we’re actually gonna be a little bit more rigorous in scrutinizing what it is that the government is doing when it comes to state punishment.
18:12 MS: Anything else to cover on the point?
18:13 LK: No, thanks for talking about the case with me.
18:16 MS: Thank you.
18:16 MS: Thanks to Lisa Kerr. If you’re interested in Canadian law, you’ll be introduced to the basics in the Criminal Law Module of Law 201-701, Introduction to Canadian Law at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen’s University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen’s Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.com. Thanks for listening.
With a painting from the late 1800s in the middle of a court dispute over whether or not it can leave the country, it seems like a good time to look at where our rules around culture and exports come from — and how they work in the international art world (and elsewhere). What is the Canadian Cultural Property Export Review Board? How are these quasi-governmental bodies created, and how do they derive the power to decide what Canadians can buy and sell, import and export? Gerard Kennedy, one of the developers of Law 207/707, International Law, joins us to talk about art across the oceans, and where and how the government can exercise power over culture — and our borders more broadly.
Enjoyed the podcast? You can find out more at takelaw.ca, sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher and Google Play. Search for “Fundamentals” in your app of choice!
00:05 Matt Shepherd: Welcome to Fundamentals of Canadian law. I’m Matt Shepherd and my knowledge of fine art pretty much extends to back issues of Spider-Man, but art is big business. And recently an interesting case hit the headlines where the export of a major work to a European buyer was blocked by a Canadian tribunal supervising our cultural heritage. Who are these people? How do they get the authority to decide what art we could ship to Europe? Where does their power come from? And were they right in their decision? Gerard Kennedy is one of our course designers for law 207707 international law, he’s also an expert in public and constitutional law and the kinds of questions that these tribunals raise. He joined me from Ottawa via Skype. This podcast is brought to you by The Queen’s Certificate in Law. The only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.
01:13 MS: This has come up recently in the news, it’s really interesting and it has to do with somebody who purchased a painting and tried to export it and then got stopped, basically. And it’s interesting to me because it raises a whole bunch of questions about public and constitutional law and it’s interesting also because you are actually part of the team that’s developing the International Law course, for the Certificate in Law and in this case it’s about something that is actually been blocked from going international, well was being blocked. But now isn’t. So, do you mind, giving us sort of a quick run down of the situation as it is.
01:50 Gerard Kennedy: Sure. First, let me just say thank you very much for inviting me on the podcast. This is certainly a very interesting case in administrative law, which I am… Not only do I do international, but I had the chance to teach administrative law at Queen’s last fall, and it illustrates a lot of the issues that come up in administrative law, so at a high level, this entity called the Heffel Gallery. It wanted to sell a painting, that it had in its possession called Iris bleus, jardin du Petit Gennevilliers, it’s an 1892 painting by Gustave Caillebotte who was a famous French impressionist.
02:29 GK: It had held the painting for quite a while, it had been in Canada for more than 35 years. But the painting, because it was painted by this is famous French impressionist. It was listed as a painting that needed to pass a certain statutory procedure before it could be exported from Canada and as a result of going through that statutory procedure the Canadian Cultural Property Export Review Board, which we can talk a bit about its basis in a moment. It held that it was of outstanding significance and of national importance to Canada and as such, the export permit that the gallery sought should be denied. So in… Not being very happy with this decision. The seller sought what’s called judicial review of that decision in the Federal Court and the Federal Court allowed the application for judicial review, said that the board came to an unreasonable interpretation of what national importance means in this context and they said it had to be reconsidered by the board with the practical implication, being that it could be exported.
03:42 MS: So this is all happening at the federal level.
03:45 GK: Yeah, it’s a federal statute, has given the board this power and the Federal Courts Act, guarantees the ability to seek judicial review of the vast majority. We could talk about some theoretical exceptions, if we want, but they tend to be pretty theoretical, of decisions made by members of the executive branch of government, in the Federal Court. So, it does not go to a Provincial Superior Court, it goes to the Federal Court.
04:15 MS: So I think it might be helpful to kind of walk through this chronologically step-by-step. 1892 guy paints a painting, does a really good job of it, at some point between then and now painting winds up in Canada, someone in Canada wants to sell the painting and somebody outside of Canada wants to buy it. But at some point in the interim, the Federal government decided that we needed a law about what we can export from Canada that might be of cultural value, right?
04:42 GK: Yeah, the Cultural Property Export and Import Act is meant to govern outstanding works of art, that are relevant to the Cultural Heritage of Canada. There’s a list attached as an appendix to the act that lists these works of art and before any of these can be exported it has to pass through an administrative process, and the rationale behind this law, makes a lot of sense. We wanna make sure that items that are of outstanding significance and national importance aren’t exported from Canada, barring certain circumstances such as no one in Canada willing to hold it, and also respecting the private property rights of those who happen to hold it to dispose of them as they wish. It’s not to bar in all circumstances a piece of art that’s of outstanding significance and national importance from leaving Canada. But we have to make sure that if it is of outstanding significance and national importance that no one else in Canada is willing to give a fair chance to buy the property.
05:47 MS: So the Federal Government basically makes this law, they write the Act, the Act gets passed and the means of enforcing this act is the Canadian Cultural Property Export Review Board.
05:58 GK: Yeah, it is the body that enforces the act.
06:00 MS: Right, So this is a group of people, the board is empowered by the government to review anything that’s gonna be taken out of the country as per this list, and then make a decision about whether or not it’s allowable according to the terms of the Act.
06:13 GK: Correct. And in order to do so, they engage an expert who examines the piece of art. And they rely not exclusively, but appears largely on her determination of whether it’s of outstanding significance in national importance. And not just that, in the interest of full disclosure, I know the expert retained in this debate, not well, but we’ve encountered each other through Massey College at the University of Toronto, and I have nothing but outstanding things to say about her as an art curator.
06:44 MS: Oh, excellent. So the Heffel Gallery wants to sell this painting, Iris bleus, jardin du Petit Gennevilliers. Since it is deemed to be of significance it has to go through the Canadian Cultural Property Export Review Board and they say, “Hang on, we’ve got two problems here. The first is Section 11-1 of the Cultural Property Export and Impact Act, says that an expert examiner has to review this and determine whether or not it’s of national significance, and the expert-reviewer has said… The examiner has said “Yes it is.” And second, there’s this 29 sub-section 5 of the Act which says that there has to be an opportunity for an entity in Canada to have kind of made what they deem a fair offer to purchase it.”
07:30 GK: So section 11 sub 1 of the Act allows a… Not just allows, but mandates that an expert examiner can determine whether the piece of art or object at issue is of outstanding significance and national importance. And Section 29 sub 1, refers to a hearing to determine what should happen if someone who wishes to sell the painting hasn’t made a fair offer… A reasonable effort for someone in Canada to purchase the painting and prescribes a procedure later on in that section to delay the export of the particular painting for six months, so that there can be a fair offer to purchase the object by someone in Canada.
08:22 MS: So these were kind of the conditions under which the board said. Hang on, you can’t go through. The Heffel Gallery can’t actually sell this because we feel it’s not meeting the obligations of the act. But The Heffel Gallery, you mentioned earlier, has the right to appeal these things to the Federal Court. So where does that derive from? What gives them the ability to take this to the next level? If the expert review board says you can’t do this, what gives the Heffel Gallery kind of the right to go to Federal Court and say, “We’d like you to look at this again.”
08:55 GK: This is where I think we should actually be pretty careful about our terminology. In that, what gives the right… The Heffel Gallery has the right not to appeal, but to seek what’s called “judicial review of the decision.” All executive actors in Canada need to act in accordance with the law, usually legislation, that gives them their power. And in order to preserve the rule of law in our society, you always have the option to go to a court… I shouldn’t say always… Almost always to ensure that the executive actor acted in accordance with their legal obligations. Historically, you would have had to bring this case in a superior court of a province, but according to the Federal Court’s Act, federal government decisions are generally… They have their judicial reviews, heard in the Federal Court. And section 18.1 of the Federal Court’s Act directs the vast majority of applications for judicial review made by federal government decision makers to go to the Federal Court or sometimes the Federal Court Appeal rather than a provincial Superior Court.
10:18 GK: Judicial review is a constitutional right in Canada to ensure that a decision that’s made that affects someone is in accordance with law. Now, it’s important to flag here that the amount of… The number of people in the executive branch of government, likely numbers in the hundreds of thousands, certainly in the tens of thousands, whereas the number of people in the legislative and judicial branches of government, even looking at all the provinces, would render in the low thousands, at most. And we don’t want the courts second guessing every decision that an executive actor makes. At the same time there’s no such thing as unlimited discretion. So a complicated case law has emerged as to when and under what circumstances judicial review should be permitted. Generally speaking, you don’t get a chance to make your case again, you have to show that the decision maker, whose decision you’re reviewing, acted unreasonably not just incorrectly or as the judge would have decided. But the ability to review the decision to ensure that it doesn’t offend the rule of law, that’s constitutionally guaranteed In Canada, there’s a presumption it’s to be brought in a provincial Superior Court.
11:40 GK: But so long as that right is allowed in another form, legislators are allowed to direct you to another place, and the federal government did that here by allowing you to review the Canadian Cultural Property Export Review Board’s decisions, in the Federal Court.
11:58 MS: I’m in error by saying that this was an appeal, it wasn’t, this was a request for a judicial review.
12:03 GK: It’s a request for judicial review. Now admittedly, some government statutes direct you to have what they call the statutory appeal of an execute actor that looks a lot like a judicial review, and sometimes this distinction of terminology can become blurry, but properly, this was an application for judicial review, and not an appeal in the way that you would appeal the decision of a superior court judge to the Court of Appeal.
12:35 MS: Okay, and so what the Federal Court came back with was, we disagree with the Board, we think they may have been over-reaching slightly in their interpretation of cultural significance at the end of the decision, it says “The matter was referred back to a differently constituted board for reconsideration”. So what does that mean, does that mean they have to have different personnel on the board to take another run at whether or not this is allowable?
13:06 GK: In essence, that is what it means. Generally speaking, a remedy on judicial review is not to remake the decision, largely because the Federal Court or any judicial reviewing judge doesn’t have the power to remake the decision. They simply have the power to ensure that the original decision maker acted in accordance with law. So there will have to be a new panel of the board decide whether or not the export is permitted, but in light of these findings of the Federal Court, which are binding on the Board, unless something drastic has come up, and even that would require issues that shouldn’t have been raised before, it looks as though this is going to be permitted.
13:55 MS: I think because I’ve watched a lot of television, and seen a lot of movies, it’s all very dramatic in my mind. But ultimately, this isn’t the Federal Court saying “No, we reject their decision. Get out of here, you guys”, all they’re doing is saying… “I think you need to rethink this”, and sending it back and saying, “Let’s reconstitute another panel and just take another look at the issue, given the context that we’re giving you back”.
14:19 GK: True, but there’s reconsideration and then there’s reconsideration. The Federal Court has decided what they think this act means, and specifically, that the original panel of the Board came to an unreasonable determination of what it means. If the new Board comes to the same determination as the original board did, it will have ignored a precedent from the Federal Court that’s binding on it. And then we’ll just be back in this situation again. It’s possible that new information about this painting will be presented towards or before the new board, that will essentially mean that even under this higher standard of what constitutes national importance, the export will still not be allowed. That strikes me as unlikely, but you never know.
15:12 MS: But we’re in a precedent-based system. So kind of what’s happened here is the Federal Court has raised the bar slightly to determine works of national significance.
15:22 GK: No, I wouldn’t even say they deem something slightly, they raise it slightly, in determining that it’s of national importance. They’ve said it has to have a lot more connection to Canada than this particular painting has.
15:36 MS: And we’re a precedent-based system. So this is not a one-off thing that’s happening, this is something that’s going to change the work of the board going forward.
15:44 GK: Absolutely, it will, yes. I think it’s important to emphasize that the court didn’t decide that the decision of the board was incorrect. They decided that it was unreasonable. On applications for judicial review as I already mentioned, there is a presumption that in interpreting its home statute, an administrative decision maker is to be given deference in terms of what the statute means. And one thing that struck me while reading the decision is whether or not the Federal Court judge was giving sufficient deference. He certainly makes a very persuasive case as to why an object needs to have a lot of connection to Canada before it can be deemed of national importance within the meaning of this Act, and why the opinion rendered by the board, appears to be constraining that excessively broadly, so that any work of outstanding significance that would be important to study or demonstrative of one of the great cultures of the world that makes up Canada’s multicultural heritage would be of national importance to Canada. The judge explains why he thinks that that just is fundamentally unreasonable, but it’s not a opinion that has as much deference as we sometimes see in applications for judicial review.
17:20 GK: The amount of deference that can be seen in different applications for judicial review definitely varies, in light of the circumstance. I think the Supreme Court is gonna have to deal with this issue fairly soon, because it says, it’s gonna reconsider the framework of judicial review of administrative law decisions. But that is something that struck me, like how much deference was appropriate. Did the judge give it? I certainly thought he was, [17:47] ____ bode a very persuasive decision, but as someone who reads a lot of judicial review decisions, that was one thing that was going through my mind while reading it.
17:56 MS: Well, thank you very much, Gerard.
17:58 GK: You’re most welcome.
18:02 MS: Thanks to Gerard Kennedy, one of the course designers and instructors for our International Law course. If you’re registered for the Certificate in Law you can sign up for Law 207707, International Law, right now. The course begins in January, 2019. If you’re interested in Government and Legislative Authority in Canada, take a look at Law 205705, Public and Constitutional law. You can find out more about the certificate and all of our courses at takelaw.ca. Fundamentals of Canadian law is recorded at Queen’s university, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton who is also a staff member here at Queen’s Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for each podcast are created by Valérie Desrochers. You can see them at takelaw.ca and visit Valérie’s portfolio at vdesrochers.com. Thanks for listening.
Recent headlines about the CRTC, and a Bell-led consortium against piracy, are making waves on the Web right now. What’s the CRTC role in combating Internet piracy? What is Bell and other internet service providers’ place in the discussion? Margo Langford, who is part of our Law 206/706 course, Intellectual Property of Law, is here to help. We talk about the CRTC, the Bell consortium, and piracy law, but also some of the history of copyright on the Internet, why Napster might have survived in Canada, international legislation, and much more. This could be its own podcast!
If you’re interested in IP issues, check out Law 206/706, Intellectual Property Law, at takelaw.ca. This course is a must if you’re interested in patents, trademark or copyright — whether you’re writing a novel or crunching code for your new app, it’s essential to understanding your rights in Canada.
00:00 Matt: What I’ve seen and I know we’re gonna go somewhere different with this, but what I’ve seen is this… The CRTC decision to deny Bell and a number of other organizations who’s kind of formed a group kind of this sort of advanced power over privacy, and that’s the headline that I saw flying past me. So I thought it might be useful to start with what is the CRTC’s role in copyright enforcement in Canada?
00:26 Margo: Yeah. When I read the decision from the CRTC I actually understood that the collective of broadcasters and web owners were actually trying to get a website up, or technology up, to block infringing content. So not so much privacy as it was illegal use of other people’s content, what we call piracy in the copyright world. So what they were trying to do was get CRTC really to step outside of its traditional mandate, which is a regulator of content and of rates for the broadcast industry and the telecom industry, and get it to step into the copyright world. We have a copyright board and it also doesn’t deal with infringement, it deals with tariffs for the use of other people’s content in a legal context.
01:20 Margo: So what we’ve had in Canada forever and in most countries in the world are both civil and criminal private rights of action where the rights owners, who have their content infringed, collectively or individually go to court. So they either sue or they try and get the police involved. In our copyright law in Canada, we have both. You can take a criminal action but it’s very difficult. Having been a pirate buster myself I can tell you, extremely difficult to get the police involved. And they only do it really, if there is a criminal who has a rap sheet already and they’re using it as a way to bring that person into the justice system. So, we generally have formed collectives in Canada and we go back to the early 1920s with the composers forming the first collective, which was called SOCAN, and since then just about every kind of rights group has formed a… Content rights group has formed a collective. So we’ve got them for… We got CanCopy for book publishers and we have, well, just a myriad of them and I think in the music industry alone because we have… Quebec has separate ones, we have about six music rights collectives that go out there and look for pirated material and take action.
02:40 Matt: Right. And I’ve seen, if you, as a for instance, if you go to a bar and you’re being served and you look behind the bar tender you can often see like the SOCAN License to Play sticker somewhere saying that they’ve worked through this collective and they’re paying a fee for a tariff and that gives them the right to play copyrighted music in their establishment.
03:00 Margo: Right, because it’s a commercial establishment, which is different than playing it at home.
03:04 Matt: So we’ve got this kind of tiered… I don’t know if tiered is the right word, but there’s a system under which kind of there’s regular folk who access this music through the radio or they hear it at the bar, they hear it in a store, they hear it in the mall. Then there are these collectives that basically allow people to pay money for tariffs that give them the right to play all this music that we’re hearing in these various places.
03:28 Margo: Right, or they can incorporate it into a film or to make multiple copies on campus for publications they wanna use, etcetera. So yeah, depending on what the content is, somebody somewhere, if you’re using content or seeing content in public, chances are somebody has a licence and somebody’s paying.
03:48 Matt: Right. And then there’s a fuzzy part, that I’ll get to in a second, and then there’s the CRTC, which is I feel like it is more of kind of a regulator of sort of the infrastructure of it all.
04:00 Margo: Correct.
04:01 Matt: So they give a radio station a license to be a radio station, but they are not responsible for the licensing of the content of the radio station.
04:10 Margo: No, except that in Canada we decided that it was really important to have Canadian content. So they regulate, they put some rules around those licenses and so they have a certain minimum amount of Canadian content that has to be produced, for example, but they don’t actually regulate things like infringement of content.
04:28 Matt: And the fuzzy bit in the middle that I don’t quite understand is sort of Bell, as they seem to be kind of the public face of this group, they are now getting more involved in terms of saying we want to set up and do things to block infringers.
04:43 Margo: Right. And so, interestingly, there was a collective of the web service providers back in the late 19… Like about, I would say, 1995 through to sometime, I think, the group disbanded somewhere in the 2000s. It was called the Canadian Association of Internet Providers and I was actually part of that and was actually chair for a while. And we formed this collective exactly for reasons like this, which was that collectively, we were all experiencing challenges with content, some of it very illegal and criminal and nasty, and so we wanted a whole bunch of rules about first of all what ISPs would do, and then what the content owner could do. We came up with a kind of what we called “notice and notice.” So in the United States they were doing something already, being that much ahead of us in the internet called “notice and take-down.” So basically I would give an ISP notice that their… My music is being infringed on that particular website and basically they took me at my word in the United States, and they took it down and that caused them, of course, some problems as well because something that’s… Might not actually be true. And what kind of proof was required to say it was mine and all of those kinds of issues. So we decided… And there was also the issue of privacy and maybe this is where the confusion comes in.
06:17 Margo: If I wanna deal with a website I have to know who owns that website. And I can’t deal with them directly, so I have to go through my ISP, but ISPs had locked lips about who their customers were. And so they didn’t want to disclose to any old third party who would show up saying, “I have a right and this guy is infringing it.” Because that would be sharing their customer information. So they had… We came up with something called notice and notice, which was basically, “You tell the ISP you got a problem and the ISP will tell the owner of the website.” And if they think that they have a right to be using that then they come back with their information on how they got the right to use that piece of content and why they’re not gonna take it down.
07:07 Margo: Notice and notice worked really well in Canada, we didn’t have then any of the problems about disclosing customer information. People generally took them down because they didn’t know, there was so much content in the internet. It’s very hard for an ISP or a website owner, even. Some website owners are liable for it because they’ve put the content up, but for an ISP to know whether or not content on somebody’s website is legal or not would be impossible. So that worked for a while as a voluntary method, and then in 2012 when the Copyright Act was amended, that went into actual formal law. So that’s actually what Bell and Rogers are trying to do in the… The system they were trying to set up through the CRTC was actually a notice and notice system, which basically says, “Internet providers have the right to remove or block access to content upon receiving notice.” So it was pretty straightforward, they just didn’t wanna have to do it themselves and they didn’t have a collective to do it, and they thought the CRTC should or should at least allow them to create a technology means of doing it.
08:16 Margo: And then they basically said, “No. I guess what you got going now is good enough, it’s in law, you can form a collective to do it if you want, and do it yourselves the way other rights groups have done it. But we’re not gonna start taking on or allowing you to have some sort of hyper rights to deal with infringement.”
08:40 Matt: So the CRTC’s take was kind of, “This is out of scope for us to say yes or no to?”
08:44 Margo: Yeah, I think that’s really what it comes down to. They’ve never been in the infringement world and they’re not about to step into it.
08:51 Matt: Right. So as someone who’s been involved in this in the past, I guess my natural curiosity… My curious question is, why do they care? If you build a road, you’re kind of agnostic as to whether the traffic on that road is criminal or not criminal, so if you own the pipe, why do they feel obliged to be involved in what traffic is going through the pipe?
09:17 Margo: I’m not sure why they want to be. Maybe they just feel that they lack the tools to do it effectively. And ’cause the last thing on earth we certainly wanted as a collective of ISPs, was to be in any way liable. And there was a case, it went all the way to the Supreme Court of Canada, basically, about common carrier liability. Whether or not if you were just a pipe, whether you would be liable for the content, and it ruled in favour of the ISPs. It says, “No. If you’re not actually aggregating the content yourself then you are just the pipe, then you’re not liable.” The second… There’s a lot of hybrid rights, so a lot of ISPs are also website creators and owners and builders and whatever. So the second that you move into the content creation side, well, then you’re wearing a different hat and then you could be. So I think also all of these companies are such hybrids now. It may be that from their content side, in their content creation side, they wanna protect their own content and they wanna block illegal content.
10:18 Matt: So there’s a certain amount of, they may in fact own IP that they want to protect and that they’re trying to facilitate the means of protection through this method they have devised.
10:31 Margo: But of course the world is completely international, in terms of the internet and where most of the infringement is taking place.
10:37 Matt: I was gonna say, we’ve been talking about this in a Canadian context, but you’re right, it’s an international issue. My internet access is not Canadian, my internet access is global. So how is this affected by international treaties and international agreements?
10:51 Margo: It’s terribly difficult [chuckle] because the copyright laws, although very similar because of treaties, in which basically are that they’re kind of normative setting guidelines for countries to form their laws around some agreed upon principles, but there’s wrinkles in everyone. So the Canadian copyright law’s slightly different than the US in a number of ways, and then the treaties are not always ratified by all the countries in the world. So not everybody is playing by the same rules, but generally over the last 100 years it’s been fairly well harmonized. Interestingly, we’ve just formed another treaty, and that’s with the US and Mexico. And there were some issues around copyright that had to be harmonized. One of them was the length of copyright.
11:41 Matt: Yeah, things are longer now.
11:42 Margo: Yeah. We expanded to 70 years, it was 50 in Canada, life of the author plus 70 years now, which gives the owners more protection. But the other one was actually the notice and notice story. We do not have the same regime, as I was mentioning, as the US, they have notice and take-down still in their law. And we got an exemption, and we are allowed to continue with our notice and notice, which is actually fantastic because it’s really working. I don’t know if it’s working in the States, I really can’t speak. But I’ve been in-house counsel in an ISP and I’ve been involved right in the front end of getting a notice and what we do with it, and I have been involved with a lot of content owners trying to protect their rights. And as far as I’m concerned, we have a pretty good regime. The problem is that when the infringement is taking place offshore, you really have very few tools.
12:41 Matt: I think there’s a pervasive understanding that things are different, nation to nation, and this idea that there are different rules in different places, so if you have got something that originated in this place, different rules apply. Copyright happens in the country that things start from, right?
12:58 Margo: Where the creator, yeah, has made whatever it is, what piece of content they’ve created is the origin of the copyright. But the interesting thing about the internet, it brought on, I think, I would call the era of technological measures to actually address infringement. We really can’t do it with laws super inefficient to try and sue somebody. So what’s really happened is people try to lock down their content with tools, so you can’t get access to content that’s… People probably are most familiar with it with Netflix, because you can’t get content that’s not licensed for Canada on Canadian Netflix. It’s just the way the rules work and technology permits that to happen. Napster being one of the more fascinating stories about the genesis of these technology tools, and the difference between Canada and US copyright law. Because if Napster had actually been in Canada, they wouldn’t have been guilty of anything.
14:02 Matt: Really?
14:02 Margo: Yes, because we have something in the United States called contributory infringement. So the fact that it was a website that allowed people to file share in the United States was contributing to the infringement and therefore they were liable. But if they’d been in Canada, and they’d set up their service on a Canadian server and then a Canadian company, we don’t have contributory infringement and they would have just been that common carrier. They put the technology there and they allowed people to file share and they weren’t actually doing the copying. That’s been an interesting thing to watch as well.
14:41 Matt: I think we could talk for days about this. I think one of the things I kind of understand about this is it matters where the data resides. So if I have a website, I’m sitting here in my office in Canada, I make my website in Canada but it’s hosted by Squarespace, and the actual server’s in LA, so that’s now a US law thing around the data because that’s where the server is?
15:06 Margo: Still probably a little bit unsettled law.
15:09 Matt: Okay.
15:10 Margo: Because it’s really hard to say. Sometimes it’s where it’s been uploaded from, and this goes into satellite law, that was the first upload and download copyright cases. I don’t think we have enough body of law yet about whether the law of the server applies or not, there’s cases on both sides of it.
15:32 Matt: Right. Anyway… Again, it’s fascinating, pads off in all directions, but back to the core idea of, there was a consortium that wanted to implement new anti-piracy measures and the CRTC said no. Is there anything we haven’t covered there that we should unpack a little bit?
15:50 Margo: Well, I’m just gonna circle back and say the thing about Napster is, it was created in a vacuum before all of the music companies could get together and create their own aggregate site. And so there was something called The Madison Project, IBM was actually… Had all of the music companies on board into this project, and they were trying to come up with their own Napster before Napster appeared on the scene. And they had challenges trying to get those music pieces licensed from the composers, because they were individually licensed in all different countries and people weren’t willing to give up their royalties. And so by the time they got all the legal stuff worked out, they lost the window of opportunity to go to the public with an offering. You saw a little better job when it came to iTunes, when they finally got some act together, but that’s such a small part of what music is actually being consumed on the internet. I think, I don’t know, I’ve heard somewhere between 1% and 10% of the music’s actually paid for on the internet. So we now have a whole generation of people who believe that it’s okay to infringe anyone’s content, that content is free. And I think we have some major challenges for creators as a result.
17:07 Matt: Right. Sorry, when you’re saying 1% to 10% is actually paid for, does that 1% to 10% also include streaming, like Spotify, Google Play?
17:14 Margo: Mm-hmm, mm-hmm.
17:16 Matt: That’s… Oh, wow, that is very different than I thought.
17:18 Margo: Yeah, yeah. The illegal is far eclipsed in the decades that ensued since Napster. It’s just grown as opposed to shrunk. And so part of that is there’s been the resistance, I think, to use the technology tools to stop people from actually getting access to content. So in part that is because people got so used to being able to get it, so now it’s viewed as, “Well, we’ll release some of it for free because this will build a fan base,” or whatever. But it is… I have represented many musicians in the interim, and it’s very hard. Your income is extremely dispersed now. You might make a few bucks on each of the websites that you put your songs on, but you’re not making the kinds of money you used to get with mass sales of records.
18:08 Matt: And so I guess the last question for me would be, Bell et al have put together a consortium and said, “This is something we want to do.” And the CRTC has said, “Not really our bailiwick to say yes or no to this so we’re not going to say, ‘Yes, do it.'” But they’re clearly not gonna give up. So where do you sort of go from here? Where would they take this?
18:30 Margo: I do think that they can just do it.
18:33 Matt: Okay.
18:34 Margo: As Nike would say.
18:35 Matt: Right.
18:36 Margo: That I think they know they… They did have a mechanism before as a collective to take collective action because obviously one company doing it on its own is, again, not really the answer, but they could create, either with the group they have now or expand their collective and do it themselves.
19:00 Matt: You’ve been very generous with your time, so I don’t wanna get into another whole thing if this is another whole thing, but is this… Does net neutrality plug into this argument at this point or is that a sort of a different ball of wax?
19:12 Margo: I think it’s a very different ball of wax.
19:13 Matt: Okay.
19:14 Margo: That’s really about access to the internet.
19:16 Matt: Right.
19:16 Margo: Well, I guess it get does play in in that people are talking about walled gardens, of creating, again, the technology’s limited access for content. I don’t think we’ve got enough to… I don’t think we’ve figured any of this out well enough yet.
19:34 Matt: Right.
19:35 Margo: [chuckle] I just think it’s sometimes happening much faster than all the existing mechanisms that are in place can react to it.
19:43 Matt: Well, we may have to check in again at some point soon about this or start a spin-off podcast, but for now, thank you very much, Margo.
19:49 Margo: It was a pleasure to be here, Matt.
Solitary! The Liberals say they’re ending it. But I thought we didn’t have solitary in Canada, so what are they ending? Who does this affect? Does it even really matter? Let’s find out with professor Lisa Kerr, author of our Criminal Law module in Law 201/701, Introduction to Canadian Law. She’ll take us from the history and status of solitary in Canada, to the details of this legislation, and what we can find out about our current system and its failings by reading between the lines of what’s being proposed.
Interested in crime, punishment and justice? Look into Law 201/701, Introduction to Canadian Law, where we cover the topic in a number of modules. For how the legal sausage really gets made, you can take a deep dive in Law 205/705, Public and Constitutional Law, a full course on how our governments relate to each other, and us, and our rights.
Welcome to Fundamentals of Canadian Law
I’m Matt Shepherd, and I don’t know enough about prisons. Certainly not enough to understand the background, or the implications, of the Liberal government’s recent promise to “end solitary in Canada.” Fortunately, I know somebody who does: Lisa Kerr is one of Canada’s foremost experts on sentencing and prison law, and is also the instructor for the Criminal Law module of Law 201/701, Introduction to Canadian Law. She sat down with me to unpack first the definition of solitary confinement in Canada, the differences between our federal and provincial prison systems, and what’s so important about this new federal legislation that promises to end solitary forever.
This podcast is brought to you by the Queen’s Certificate in Law, the only online Certificate in Law offered by a law faculty in Canada. You can find out more at takelaw.ca.
00:06 Matt: What is solitary?
00:11 Lisa: Well, solitary confinement is the practice of placing inmates in cells for most of the day and night. So in Canada for the last couple of decades, we’ve put people in solitary and they’ve had to stay in their cells for 23 hours a day. In the last year, we’ve had some improvement and that rule has been changed to 22 hours max a day in cells. But yeah, it’s basically the practice of separating inmates from the general prison population and isolating them in cells.
00:41 Matt: So, is this… I know very little about it. I know that this is a federal liberal decision or plan that we’re talking about, but solitary isn’t something that exists only in federal prisons.
00:54 Lisa: Certainly not, it’s a practice encounter that we’ve had in the federal penitentiaries and it’s also widely used in provincial facilities. It’s also used, even on remand population, so people that are awaiting trial that are actually formally innocent and are facing charges and prosecution. So it’s very widespread, and it’s basically why do prisons and jails do it? They do it because they have some… They’re having some challenge in terms of how to manage a particular person in the general population and then that… But that might be because this is a person with mental health needs, it might be, ’cause this is a person who’s having trouble getting along with other inmates or it might be because a correctional officer has a sense that this guy is troublesome in some way. So there’s lots of reasons why people get placed in segregation, ranging from unlawful human rights violating reasons to more legitimate managerial challenges that prisons face.
01:56 Matt: I’m noticing that you’re saying segregation, you’re not saying solitary.
02:00 Lisa: So the technical official language in the legislation is segregation. To me, it’s a synonym. Solitary confinement, as we’ve known it in Canada, is synonymous with what is endorsed in the legislation as administrative or disciplinary segregation. And there were many years where Corrections took the position, “Well, we don’t have solitary confinement in Canada, that’s nowhere in our legislation. That’s an American practice, that’s not something we do.” Thankfully, that battle is behind us at this point, and there’s no doubt that this government accepts that we have been doing, what is effectively solitary confinement and that is this practice of keeping people in cells for 23 hours a day and subjecting them to sensory deprivation, social isolation, occupational deprivation, and there’s of course now a large literature on the mental and physical harms that flow from that level of isolation.
02:58 Matt: But I mean… And I guess, again, naive and largely informed by a lifetime spent in pop culture. I’ve always just kind of thought that solitary was for the worst of the worst. It’s how you… It’s where you put the people who are super bad.
03:10 Lisa: It’s a common presumption that anyone who gets thrown in the hole is the worst of the worst. And at this point, what we’re… What is very clear from the empirical evidence is that people with mental health problems are actually vulnerable to being placed in segregation. Why is that? Because they’re the ones who often have a difficult time managing in the general prison population. So general population is quite a demanding environment, socially speaking. You have to be able to navigate complex social arrangements, you have to be able to manage friendships in complex ways, in ways that in ordinary society we’re really not put to challenges like that, you have to manage your relationships with correctional officers and do all of this amid conditions of serious social deprivation.
04:02 Lisa: So people with mental health challenges often don’t do well in the prison context, and so they’re at risk because for correctional officers, they have to somehow manage, manage the prisoner society, and so where people are having difficulties there’s only so many resources and options that correctional officers have, and in recent decades placing someone in a solitary cell, is one way of dealing with the problem. But of course, people with mental health problems are not the worst of the worst, far from it, they’re people who need more meaningful social supports and more meaningful programs and interventions than other inmates. And so this has been one of the real dysfunctions of the use of solitary is that the mentally ill are at risk of being placed there, at more risk than other inmate groups, and the effects of solitary are more severe on them.
04:55 Matt: Then that raises… Just to put a fine point on it. You don’t get sentenced to solitary. When you get sent to prison, the judge doesn’t say, “I’m sentencing you to solitary.” It’s just he sends you to prison. And segregation is an administrative decision.
05:09 Lisa: That’s such an important point, it’s absolutely correct. The sentencing judge has no idea whether the person before them is going to serve their time in solitary or not. And in fact, I think if a sentencing judge were aware of this issue it may actually impact their decision not only whether to sentence you to custody, but what the length of that sentence should be, given that it’s a much more severe form of state punishment. So it’s true, the reasons you get placed in solitary have nothing to do with the offence you’re convicted of. And I do think this gives rise to real problems in terms of the proportionality of punishment in our system. I think the most famous case in Canada, and the case that really activated a national consciousness around this issue is the case of Ashley Smith, and she was of course 19 years old when she died in a segregation cell having been held there for many months and Ashley Smith had committed no remotely serious criminal conduct in the community. When she was placed in juvenile custody, she’d done nothing more than throw crab apples at a postal worker. She had difficulties as a young person, no question, but nothing resembling serious criminal conduct, and yet she was subjected to the most severe form of state punishment in our system.
06:32 Matt: So, and this sounds like… You were alluding to this earlier, it’s… It is an overstressed and in some cases probably not that well-trained system in terms of people making this decision as something they see as a tool in the toolbox and not necessarily understanding how to use it in the most appropriate way.
06:50 Lisa: Well, sure, it’s one of the only tools in the toolbox, and that is… I think this new legislation that the Federal Liberal Party have just tabled. You can see indications in this legislation that we’re gonna listen more to healthcare professionals commenting on whether a segregation placement is appropriate or what’s called these placement in these structured intervention units that the new legislation talks about. And so I think there is a growing recognition that this has been one of the only tools in the toolbox for correctional officers and that we need to move away from it, particularly where it has negative health effects and that we need to invest more in our system to delivering interventions and programs that might assist inmates rather than placing them in segregation and seeing their condition and personality deteriorate.
07:50 Matt: So let’s talk a bit about the new legislation. What’s in it?
07:55 Lisa: Well, the main… It’s interesting, there’s been a couple of… This is now the second draft bill we’ve seen in a year from the liberals, so they’ve taken a couple of different sort of shots at this, and this new bill is really a different approach than what we’ve seen before. Previously over the last couple of years the Liberals have added some procedural protections for those placed in segregation, so some limits on reviews and the timing and so on. Whereas this new bill you’re hearing the Minister of Public Safety, Ralph Goodale, promote this bill by saying that it’s really about ending solitary. And in a significant sense, it does do that.
08:35 Lisa: So, the sections in the prison legislation that allowed administrative segregation, which was sort of the most nefarious practice of segregation, those provisions are repealed under this legislation; would be repealed. So the word segregation will no longer even appear in the legislation, they are replaced with what’s called legislation that allows the use of what’s called “structured intervention units” and the really important change here is that inmates who are placed in these units… No, inmates can still be separated from the general prison population and for the same reasons as before, but now they’ll be entitled to get out of their cells each day for a minimum of four hours, and for two of those four hours it has to be for some sort of meaningful social contact or intervention. So there’s still problems with this new bill and there’s critics who are already asking whether it’s gonna be segregation by a new name or segregation light. But I think it’s significant to really change the sort of culture around just abandoning someone in a cell for 23 hours a day and instead saying every human being in our prison system is entitled to contact with other people and to some form of programming and to be out of their cells for at least a few hours a day. I think that’s an important shift, and this legislation promises to do that.
10:04 Matt: So do you think it will pass?
10:08 Lisa: I do, I think that… I think this government… I mean I’m not an insider in the legislative process, but from what I hear, this government is committed to getting this legislation passed before the election and they really do, I think, want to be the government that ends solitary confinement and that implements, in some way at least, the inquest recommendations following the death of Ashley Smith. They’re also facing two major charter lawsuits that are now set to be heard in provincial courts of appeal in Ontario and British Columbia. And the the legal effect of the judgements that we’ve already had in those cases are that the current provisions that allow administrative segregation, are set to fall, they’ve been declared unconstitutional. There’s been a sort of delay in the effect of those judgements to give government a chance to respond, but those provisions are soon going to be void.
11:10 Matt: Right?
11:10 Lisa: So, the government really did have to act, given that that litigation is… The results of that litigation.
11:18 Matt: So this is a bit kind of spinning, at the end of the day. They’re sort of getting ahead of it and saying, “Look, we’re doing something great,” when kind of the writing was already on the wall, and they were gonna be put in that position regardless, right?
11:28 Lisa: Look, they’re government, they’re government, they’re trying to do multiple things at a time and they’re always… And they’re always having to choose what priorities they have, at any given time. This government when it came to power in those mandate letters that were released from the Prime Minister to his various ministers, they said the Public Safety Minister was directed to implement the Ashley Smith recommendations, did they work on that on day two? No. But it’s not surprising that, especially when it comes to prisoner rights, this is not a… Prisoners aren’t a group that most government spend time working for, unfortunately, they’re a very marginalized voiceless population, so it’s not surprising that pushing through with lawsuits even when we had a government that indicated willingness to reform was still hugely necessary in pushing this to the top of the list. Public Safety Minister is probably one of the busiest ministers in this government and I think that it’s understandable that it took… That it took ongoing pressure to push this legislation to the top of his to do list.
12:46 Matt: So, constitutionally the way this kind of radiates out is all crime is federal, at the end of the day. Criminal law is federal law. There are federal prisons, but there are also provincial prisons. But any decision the federal government makes we kind of radiate down to the provincial level.
13:03 Lisa: That’s a nice idea. That sounds like an idea you could explore in a law review article. The idea of radiating down. [chuckle] It’s not that… That might be right in theory, but the practical reality is that this is a reform that’s only for the federal prison legislation, the provinces are really another story and every province in this country does some form of segregation. Ontario does have a new corrections act that’s very, very good, following the work of Howard Sapers working with the previous Liberal Government in Ontario. So things are much improved in Ontario after decades of real abuse of segregation, but that same work needs to be done in other provinces as well. Now, if it’s a court case, if these court cases on segregation continue and wind up in the Supreme Court of Canada and there’s a judicial declaration that the charter generates certain boundaries in terms of how the state can segregate inmates, that would be legally relevant at the provincial and federal levels, and that can be one of the advantages to doing things by way of constitutional litigation ’cause that’s the law of the land. But the Liberal Party is only a… Or the federal government and the Liberals right now are only able to legislate with respect to the federal prison system.
14:32 Matt: It’s a tricky thing for someone that’s not well-versed to navigate. The idea that criminal law is federal law but prisons are administered at different levels of government and it’s not necessarily easy for a decision made for the federal prison system to also automatically apply to all of these quasi-independently administered other prison systems in Canada.
14:52 Lisa: Yeah, so charter law, constitutional law, applies across the country, that’s the law of the land, so the provinces and the feds have to abide by it. But the federal government has authority over penitentiaries, people who’ve been sentenced to custodial sanction of longer than two years go into that federal system, and our provincial governments have authority to run provincial jails, and that’s where folks with two years less a day or folks who are waiting a trial, a remanded population, are housed in those provincial institutions. Yeah, it is sort of unique division of labour in Canada.
15:32 Matt: And one of the things about this particular piece of draft legislation is it’s pretty readable and I say this fairly often, the law is more accessible than I think a lot of people think. It’s fairly concise. It gets to the point pretty quickly and it really is just centred around this idea of structured intervention units. It’s not a long, rambling document. It just basically says, “Look here’s what we intend to do. There’s no more of this. And from now on, we’re gonna do that instead.”
16:00 Lisa: Yeah, so I do, I agree with you that it’s readable and you can look. And I think many people are, even law students are somewhat resistant to reading legislation. They often… They like reading cases [chuckle] but they’re… And you have to teach them, “Listen the answers are in the legislation and the legislation governs more than a judge does. So look there first.” But what you do have to have a trained eye for here is to sort of see the discretion that is conferred on prison officials in this legislation. So for example, grounds for being transferred to one of these units, and these are the exact same grounds as previously existed for transfer to segregation, if an inmate is jeopardizing the safety or security of a penitentiary. So that’s a ground. What does that mean? That’s an incredibly broad idea, it’s very ambiguous. And so I see that and I see, “Okay, who gets to decide safety and security of the penitentiary?” It’s not a judge, there’s no independent oversight set out in this legislation, this is prison officials, they’re the ones.
17:07 Matt: Who gets to decide what threatening is?
17:09 Lisa: Totally.
17:09 Matt: Is it something you said, is it a look in your eye?
17:11 Lisa: Well, exactly, and something you’ve said and a look in your eye has definitely been part of the story of people being placed in segregation, often for very long periods of time, and with very little access to legal counsel, with very little ability to go to the courts and have these kinds of discretionary decisions challenged. So, it is readable and it looks fairly simple, but when you’re aware of the dynamics, the power dynamics inside of punitive closed institutions, and the ability of prison officials to really decide for themselves without external review. I personally would prefer to see more specificity and detail in this legislation. Now, some of that comes by way of policy. So there’s layers of rule making that goes on in this context, and this is the highest layers, this is legislation, and so there are regulations and then there’s also policy and there is going to be more details, and that’s often, actually, a lot of where the action is here. But often, as prison reformers we’re trying to convince Parliament to put more detail and more discretion constraining standards into the legislation because prison officials know that is ultimately what governs me and I’m not allowed to do… To make decisions or to do things in a way that violates that legislation. So we’re usually pushing for that to get more complicated.
18:35 Matt: Right?
18:35 Lisa: Yeah.
18:35 Matt: And that’s again, it comes back to the idea that no one’s actually sentenced to this, and it’s an administrative decision and clearly there’s a lot of flex in terms of what this actually says about how those decisions are made. Jumping back, the couple of points you mentioned two hours a day of meaningful interaction. My immediate question, “What is meaningful?”
18:53 Lisa: Right?
18:54 Matt: That’s another point of who gets to determine what that means in terms of what does it mean to give someone meaningful interaction?
19:02 Lisa: Well, and I’ll tell you, among the prison advocate community that was sort of debating the merits of this bill over the last few days, a few of us have said, “What is meaningful human contact? How… ” And sort of saying, “I’m sure it will be oh, so meaningful.”
19:16 Matt: Right? Is there a, “You must be in contact with more than two, but no less than… ” It’s an interesting… It’s a lot of interesting language.
19:25 Lisa: Well, exactly, and it says… Let me give you the exact language. It says, “Provide the inmate with an opportunity for meaningful human contact and an opportunity to participate in programs and to have access to services that respond to the inmate’s specific needs and the risks posed by the inmate.” So I look at that and it could be implemented beautifully, or it could be so bare bones. And I think the fact that they had to spell this out in the legislation tells you something. Okay, it tells you that in the past even though inmates were entitled in the past to an hour or two a day, they were often being taken out of their cells and put into another empty room for an hour or two. This legislation also specifies that if you’re out of your cell for a shower that that doesn’t… That’s not part of your four hours, that tells you something too.
20:16 Matt: Yeah.
20:16 Lisa: It tells you that in the past during that one hour you got out, if you spent 20 minutes of it in the shower doing the basics of human hygiene that was a big chunk of your hour out. So there’s all kinds of problems about how delivery on the ground, the implementation of these standards. And as prison advocates, we know how power works in these settings and we know how voiceless and marginalized and compromised inmates are. So there is real difficulty in terms of how these standards get enforced.
20:56 Matt: I feel like in the prison advocacy community, this is something that’s being regarded as it’s a step forward, but this isn’t like an epochal, “Oh my gosh, everything’s wonderful now.” This is just it’s a measurable step forward. Some people are maybe a little less bullish on the idea that it’s a step forward than others, but this isn’t like a seismic shift in how prisons are going to treat people.
21:16 Lisa: So listen, I do think it’s a step forward. And when we think about the battles we were having with Corrections just a few years ago, it’s a huge… It’s a hugely different place to be. A few years ago, they said, “We don’t have solitary.” In the wake of the Ashley Smith inquest recommendations, they said, “There’s not a single thing we could reform. It would be too dangerous.” And now we’ve got the… At the highest level of government, the Minister saying, “We’re ending solitary.” So no doubt we have to be careful about just the plotting and buying the story, the details and the spin and so on. But it’s a significant… It’s a significantly different climate, but we also have to… We also, as we’re criticizing this bill avoid fantasizing about perfect prison legislation.
22:04 Lisa: Prisons are dysfunctional institutions. That’s simply how they… That’s their identity. They’re closed, they’re secretive, there’s very little accountability, the populations inside of them are vulnerable, the jobs of correctional officers are very difficult, society never wants to allocate really enough resources to these institutions. So they are by their nature dysfunctional and in need of reform but there will be no perfect prison legislation, there will be no moment at which we can read a new bill and say, “Oh well, now I don’t need to worry about what happens inside maximum security facilities.” That day is never coming. And so to… This is a step forward. But no, the day when I get a bill and say, “This is perfect, I’m gonna stop doing prison reform work and go to some other area that actually needs help,” that day is not coming. But that’s just part of the field.
23:04 Matt: Is there anything else kind of in here that you wanna unpack, or…
23:08 Lisa: Yeah, there’s a few other things in here that are not about segregation. One reform that I think is really important is, there are new rules here that specify that when the Correctional Service’s dealing with indigenous people who are incarcerated, that they have to think about the historic and systemic discrimination that indigenous people have faced in Canada and in the criminal justice system and they have to think about the really distressing levels of over-incarceration of indigenous people, and they have to think about issues of culture and identity when they’re making decisions for indigenous inmates. And so, that had kind of been the policy for the last few years, but this is legislative codification of those approaches, and I think that’s significant.
24:01 Lisa: In sentencing, at the sentencing moment, we’ve been doing this for many years following legislative reforms in 1996, and the Supreme Court of Canada’s decision in Gladue which said you have to take those same approaches and the same sort of analytic approaches in sentencing an indigenous person. So this is really extending that approach from sentencing and telling corrections, “You too have to think about these issues.” And I always emphasize that in 1999, the Supreme Court of Canada in Gladue said that it was a crisis, the level of over-representation of indigenous people in our prison system. At that time, the rate was 12%. Despite being something like 3% or 4% of the Canadian population, they were 12% of the prison population. Well, today, over a quarter of our prison population is indigenous and some women’s prisons that rate is 40%. In some provincial jails and the prairies you’re getting to 80-90% of the population being indigenous. So if it was a crisis in 1999 you wonder what word would be appropriate today.
25:09 Lisa: And so sentencing in prison law is no place to try and fix the problems that produce that rate of incarceration. And so I always say we shouldn’t expect sentencing in prison law to be able to… That’s the end stage. That’s the end. We have to invest in education and healthcare and all the things that bring down crime rates and help address the reasons that bring people before criminal courts. But at the very least, we now see with this legislation clear direction to the Prison Service, that they too have to be part of this project of trying to address the needs of indigenous people in the system.
25:53 Lisa: So, one final thought on a significant reform in this bill is that it also eliminates the possibility of putting in an inmate in solitary as punishment for a disciplinary offence. And when you’re facing disciplinary charges as an inmate, so you’re accused of violating a specific prison rule, you had a right to go to court to appear in front of an independent decision maker and you had a presumption of innocence so it had to be proven beyond a reasonable doubt that you committed that offence and then if you were placed in segregation it was capped to a limit of 30 days. So that was a pretty procedurally fair system and you had access to counsel when you went in front of disciplinary court. And in fact, the Queen’s Prison Law Clinic does a great deal of work, where our law students go in and assist inmates who are accused of disciplinary offences and make sure that the institution really meets its burden of proving that those offences in fact occurred.
26:57 Lisa: And so, the Prison Law Clinic was really fighting against the use of disciplinary segregation. It wasn’t a huge part of the practice here, most inmates in segregation had been under this administrative status because there were so few procedural rules that applied to that that mostly the Prison Service would just opt to declare you administratively segregated instead of sending you through the independent court system. But anyways, this legislation does eliminate the ability to impose segregation as a punishment for when you’re found guilty of one of those offences. So the Queen’s Prison Law Clinic will keep working for inmates if this bill pass, passes, and keep making sure that they don’t get disciplinary charges on their records if it’s not… If there’s no basis for those charges, and help them avoid fines, and so on. But if this bill passes the ability to put our clients in disciplinary segregation following conviction will be… Will be eliminated.
27:56 Matt: That’s fantastic.
27:57 Lisa: Yeah.
27:58 Matt: Thank you very much Lisa.
28:00 Lisa: Thank you.
Thanks to Lisa Kerr. If you’re interested in criminal law, you’ll be introduced to the basics in the criminal law module of Law 201/701, Introduction to Canadian Law, at takelaw.ca
Fundamentals of Canadian Law is recorded at Queen’s University, situated on traditional [A NISH IH NAH BAY] and [HOE DEN OH SHOW NAY] territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen’s Law! You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.ca.
What protects the things your brain comes up with? Morgan Jarvis breaks down the idea of intellectual property into its three core components: copyright, trademark, and patent. We catch up on B. Rich vs. Coca-Cola, explore the notion of the (unfair term?) patent troll, and break down how the law protects the things we think up.This is all in preparation for Morgan’s new course, Law 206/706, Intellectual Law — an essential program for anyone interested in creative work, business development, coding, entrepreneurship, and more.
00:05 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I’m Matt Shepherd and I’m fascinated and confused by intellectual property. Thankfully, Morgan Jarvis is here to unpack it a little both in this podcast and through his new course, Law 206706 Intellectual Property Law. Morgan was on our very first episode talking about trademarks and a conflict between rapper B. Rich and Coca-Cola over a purloined lyric. We’ll catch up on that in a bit and then get into IP, how it breaks into categories and what those categories mean. This podcast is brought to you by the Queen’s Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.
00:56 MS: What’s happening with the B. Rich case?
00:58 Morgan Jarvis: Well, I was dying to know, ’cause it’s a year now since we talked about “out for a sip” and that “out for a rip” case with Coke. So, I emailed Rob Kittredge, the Queen’s grad who was the lawyer who featured in that video, I think as was it buddy buddy and Steve or whatever it was, and wondered if there had been a resolution, because you can’t tell online, you can still watch the “out for a sip” video, looks like there’s still this outstanding cease and desist letter which would have now been past the date of when he has to hear from Coke. So I wondered what happened, and he did kindly call me back. Great guy, great creative legal solution finder, as you can imagine, from watching that video and he said, “Look, I’ve got this scripted response that I haven’t actually even read to anybody yet because it’s so dull and scripted, but all I can say is that we came to a mutually agreeable solution to the problem and that’s all.” And then I thought, wow, this is such a great example of why lawyers need to start thinking beyond just the traditional way that lawyers think about their little legal box of legal issues and legal problems and mostly liability and their own liability.
02:26 MJ: They’re often part of a business team, and you need to think about the bigger business issues at play and this was such a classic case of a PR problem and a branding problem, and then the creative solution would have been to go out and this is actually… Rob mentioned he’d thought of this, and I think he maybe even proposed it to Coke. Why don’t we get together and do a bit of a co-branding thing? We do another video and make this a great PR story for everybody and a real win-win and something fun. Not just a classic situation of lawyer comes to table with an NDA, which is obviously the case, negotiating hard, try to get the most out of the other party and then you can’t talk about it. And this video still out there playing is a negative PR thing for them. So it was kind of crazy. And I think I’m gonna get Rob to come in and talk in the Business Law Clinic this year and talk to our students about creative legal problem solving. So that’s something that we’re trying to get students thinking about now is how do they think more like business people in it? And the Business Law Clinic is of course the right place for that. How do you connect with your clients, understand their business and how do you cope with creative business problems as part of it? It’s a business context, it’s not just a context of nitpicky legal issues, there is a much bigger picture out there and you have to keep that in mind.
03:45 MS: So since you brought it up, the Business Law Clinic, you are the director of the Queen’s Business Law Clinic, and that is a role that is not unconnected in a lot of significant ways to IP and IP questions.
03:58 MJ: Yeah, exactly right. There’s a lot of… Especially where we’re dealing with a lot of startups coming out of the university and so a lot of them do have IP issues of difference or sometimes they’re trying to commercialize perhaps a patent. There’s always trademarks, the branding for your business as you go forward, there’s a bit of debate about whether it’s the first thing you think about or not, but I do encourage people to think about it early on because you wanna make sure there’s a domain name out there, you don’t wanna be paying $10,000 for getting your domain name ’cause you’ve gone and chosen a brand name, which someone’s already sitting on, whether they’re actually using it or not.
04:39 MS: So to take you a quick step back, what you do, what the clinic does…
04:41 MJ: Yes, right. So…
04:42 MS: As a pro bono clinic, for the law school, is you are helping businesses with a lot of different legal matters that have to do with setting themselves up, usually in their infancy?
04:50 MJ: Yeah, yeah, exactly right. So most people wanna consider what sort of business vehicle they’re going forward with, are they happy… If they’re one person, are they happy going forward with a sole proprietorship, does that make sense for tax purposes? We try to get them to talk to an accountant for that, but also for liability purposes, is there some liability involved? Often when you’re contracting with other people and you’ve got employees, and maybe you’re doing a service for others and there’s a risk you might hurt someone while you’re doing it or damage someone’s property. It’s often for liability reasons a good reason to incorporate.
05:24 MJ: Or maybe there’s a couple of people working together and they’re a partnership. That’s actually automatically at law, you’re implied to be a partnership, if you’re doing business with someone else. So sometimes you wanna do a partnership agreement that sets out your own terms or you maybe wanna incorporate and you could both be shareholders in the company, and then in all those contracts that we end up doing for them, when they start interacting with other businesses and other people there is often IP issues, ’cause you’re often developing something for someone else which has IP. And then who owns it? A great example is, here we are in a podcast. If you are providing podcast recording or hosting services for people, you would need a contract, ’cause you would just want to set out the understanding between the parties.
06:14 MJ: You want that in writing. You both wanna know that you’re on the same page. There’s money usually involved and people need to know what they’re getting for that money. And so… And the IP comes in, say, if you are recording a podcast for someone, they’re likely coming in with some IP, some copyrighted material, probably, or you’re helping them create some copyrighted material and they’re gonna wanna make sure that they retain ownership of what they’re bringing to the table and they also wanna own the combined work product. ‘Cause they’re paying you to develop IP with them and they usually wanna be able to own that.
06:52 MJ: And then, if you’re gonna go and host it for them, you then need that IP licensed for your use for the hosting or whatever else you’re doing for them with that IP. So that’s just one example, and it comes up all the time in the clinic and the clinic provides some great real world examples for the IP course, which both in the exam questions, ’cause we need those real practical problems for the students to work through, and clinic cases are great for that. But also, of course, in the course material is just great practical examples to connect that theoretical material into the real world and often in situations that are arising right here on campus.
07:36 MS: Well, I’m excited about the course, and really looking forward to it. But, after I signed up for it, I began thinking more. Maybe I should have done this before I signed up for it, but I began thinking more about IP, and one, I realized I’m not entirely sure what it actually is. And second, it kind of seems to be everywhere, all the time. Like, it’s hard for me to distinguish between what’s in front of me, in terms of what I create as content that’s all my intellectual property. But there’s a much broader interpretation in what you’ve been discussing in terms of people are bringing content to the table, and that’s their IP. And my conventional pre-having really thought about that idea of it, which was kind of confined to trademarks and copyrights. So, in the broadest sense of it, what is intellectual property?
08:34 MJ: The name intellectual property kind of says it all ’cause it is… It’s a type of property, it’s property rights. Property is a bundle of rights, but it’s not tangible, it’s intellectual. So, it’s actually created for the most part, it’s created by statute, where the different acts, for those who don’t understand the process of creating law, and we touch on this at the beginning of the course, but basically, the courts over time create and apply the common law and then the government steps in and legislates law. So copyright and patent and trademark each have an act, or a piece of legislation, and those set out the bundle of rights that a IP owner has.
09:19 MJ: And so, the idea behind is… It goes back, way back, in England, which is the base of our legal system, particularly the common law legal system. And there was things like merchants marking their goods and trademarks developed from that. And there’s a lot of work that goes into developing your brand and there was a right that became recognized to be the only one who can benefit from the fruit of the seeds you sow in building your own brand and reputation and that’s the value around a trademark. So now we have a Trademarks Act, which lays out those exclusive rights to the use of a trademark when you’ve built a brand around it, when you’ve registered the trademark. And trademarks is an example of one where you actually have common law rights still, you can build your rights in the mark and sue people at, just in the courts, without registering it for infringement or for passing off. But you can also register and come under the Act and it’s then trademark infringement.
10:30 MJ: And then, there’s patents, of course. And so, it’s that idea of rewarding inventors for creating something new that contributes to society. And part of the filing of a patent is you’re actually sharing it with the public. You file the patent with the government, it’s posted publicly, so anybody can build on your invention and it’s in… For 20 years, you have the exclusive right to actually commercially use that invention, but other people are able to sort of build on that knowledge base.
11:01 MJ: And then, copyright, it’s rewarding creators for bringing something new and creative into the world. So typically, paintings and pieces of literature and now movies and podcasts and all that, they’re… Most of those are considered literary works, but there’s also neighboring rights and some others that we’ll talk about in the course, like the rights of performers and broadcasters. So yeah, no, they really are all around you, all the time. And I suppose, it’s part of this intellectual nature of the rights, it’s they’re… They are all around us.
11:43 MS: And you’ve been… I think you’ve been doing a great job of kind of describing the ideal purpose of intellectual property. It’s to make sure that people can benefit from the trademarks that they fought to establish a quality and then they want the right to associate that and only that, to them. And patents is, you came up with the idea and you own it, and you deserve to benefit from that. And copyright is you created it, it’s yours, it should be yours. It’s your song, it’s your novel. But there’s also kind of a flip side to this, like we were discussing before we started recording, that people can create a trademark and then just kinda hang on to it for no apparent benefit to anyone for decades, past its sell-by date.
12:23 MJ: Yeah, that is at the very foundation of the IP rights is that balancing of the public interest and their right to either create and develop new things, or to be able to use things that have been created and really for everybody to benefit and enjoy, either the creative work or to build on the new technology and the inventions, and so that’s that balance of the term. 20 years is kinda what we’ve come to for patents, but the pharmaceutical companies are always wanting to get that longer because on their side of it, they’re spending probably often 10, 15 years through, and huge amounts of money going through clinical trials and by the time they actually get a drug to market, they maybe only have 10 or five years at worse case, to actually make some money back out of it. And that’s why the pharma, the drug prices are so high ’cause they have a very limited amount of time on that patent monopoly. So it is that… Yeah, it’s always that that balance, exactly, right.
13:26 MS: And we live in the age of the patent troll too. This is a term I see a lot online. Not entirely sure what it means but…
13:33 MJ: Yeah, and it’s a term that… I was chatting with… I don’t know if I’d… I don’t know if he’d appreciate being called a patent troll, but he has one of the organizations that some people can call a patent troll. But it’s not the greatest term because it is really just another business model. And there are some interesting Canadian companies who would argue that what they’re really doing is helping people who own IP and aren’t able to commercialize it. They’re helping them actually make some money out of their IP rather than it just sitting on a shelf and not getting out there and not earning any royalty revenue. They go and look for… I’m not sure exactly how the business model works but I think essentially they kind of… They would either… They probably license the IP, or they somehow have an arrangement with someone who owns IP, who isn’t working it, to go out and look for infringers.
14:29 MJ: And then the business model is that you sue, and ideally come to a settlement where you’ll get some royalties out of people who are infringing IP that’s usually just sitting on the shelf. So in some ways, it’s a… It’s actually quite a reasonable thing to do. You’ve got this property right and you’re just helping people exercise it. And often, it’s universities who might be sitting on it. We generate all kinds of IP and we can’t commercialize everything. We’d love to, we want everything to be out there contributing to the economy and to society. But often it isn’t, it takes a lot to actually… It’s often, I wouldn’t say the easy part, but it’s only one part is to generate the IP, it’s on a whole another level to actually be able to build a business around it or incorporate it into a business and make money out of it. So these so-called patent trolls, and a better term is a non-practicing entity, so they can… Yeah, they’re just helping, in this particular model I’m describing, they’re helping people make money out of IP that’s not being used otherwise.
15:37 MS: Maybe we should… Patent mercenary, is that maybe a better…
15:39 MJ: It could be, yeah, yeah. So this and… And the other side of it too, there is now groups that have got together to try and pool IP because you have… The other issue is the issue of patent thickets where you’ve got so many of the patents, so many out there with overlapping claims and there can be someone who actually, they may have a patent on some part of the technology but they need… There’s usually a whole bunch of other patents that are also now actually stopping them from taking their technology forward, because there’s claims that cover what they’re doing as well as the claims in their own patent. So what people have started doing is pooling. So either by license or buying a whole bunch of patents together in particular areas of technology to try and make the whole bundle of rights available for people who are wanting to get out there and make a product that requires licensing, of, say, a thousand different patents and they’ll have them all in one place.
16:36 MJ: You can go to these patent pools and just pay one licensing fee, one chunk of royalties and they find their way back to the owners, but you just have to… It actually enables commercialization because you just have to deal with this one party and you get licensing to all the patents that you need to be able to move forward with your business, which is a really positive thing.
16:58 MS: I feel like I could kinda throw a rock and we could find something we could talk about for an hour here.
17:04 MS: So how are you… This is huge. How are you condensing this down into one course and what’s the composition of this to try to encapsulate all of these ideas around IP into a fairly tight schedule?
17:18 MJ: Yeah, that’s… So, everybody… We’ve interviewed the real experts in each area of IP that we’ve touched on. And most of them have said, “Oh, wow, this is a whole IP course.” So you’re having to condense all of IP, ’cause normally people specialize in either patents or trademarks or copyright. And they don’t normally attempt to do a course in all of them. So it’s been a lot of fun for me ’cause I do enjoy all of them. And I wouldn’t say that I’m particularly a specialist in any of them, so it’s been a lot of fun. And what I’ve tried to do, ’cause I come at it more from a practical angle, which I think is important for a course like this. And so I’ve tried to think always what matters in a practical setting of, say, a university startup, or in university research commercialization.
18:11 MJ: I was working at a research hospital before and so I’m fairly aware of what really matters in terms of IP in a practical, commercial context. And so I’ve tried to come at it from that angle and just sort of, and cover key points that I’d be considered negligent if I didn’t cover in doing an IP course. Cover all the key issues from all the different areas of… Or mostly areas of IP, the main areas of IP that are relevant to a business is really what I’ve asked myself in putting together the course. And then we build towards the licensing at the end of the course, and that’s that commercialization of IP. And that’s… You’ve got your theory now and then you’re learning why does it matter. And that’s really how I’ve tried to put it all together ’cause, yeah, it is a lot to put in one course, but we’re trying to do it with a practical perspective, which helps to simplify a little.
19:07 MS: I’m hardpressed to think of people that this doesn’t apply to, though.
19:10 MJ: Yeah, you’re absolutely right. I mean, an academic in the university who’s doing research probably needs to understand what the IP implication is, no matter what they’re doing, even if it’s a nontechnical area, there’s still copyright all the time. And that’s actually a fun example, ’cause there’s a lot of people publishing papers, and now there’s more going on with the creative commons and that open sharing of copyright. But it was that, that if you wanted to publish a paper in a leading journal you would just assign away your copyright and not even think about it. Not even realize that you can’t go and reproduce your own work that you’ve now assigned to that journal. So, yeah, it comes up, it comes up all the time, and starting a business, you’re certainly dealing with IP in some regard, even just as a student, an undergrad student, you’re surrounded by copyright issues all the time with whether you can copy your course materials, and you may be tempted to go and go and download my exam questions and my fantastic videos from the course and you can’t do that ’cause I own the copyright. [laughter]
20:23 MS: Right.
20:26 MJ: You can’t sell it online after the course ’cause that’s my exclusive right. [chuckle]
20:30 MS: I mean, again, it’s like throw a rock. [chuckle] Like just from what you’re talking, like creatives, anyone who’s writing making music, anybody, that’s obviously of interest. Anyone who’s coding making their own apps, making their own software, obviously of interest and then you get into all these weird side nichey things. Like if I write fan-fiction, if I’m writing my own stories based on licensed copy, where does that reside? And there’s all sorts of side paths and interesting areas you can get into from the central point of what is IP.
21:00 MJ: Yeah, and it is especially complicated when you’re getting into that overlapping rights and in copyright you’ve got different levels of works and authors on top of each other and when you watch a movie and you see those… That endless list of credits at the end. You’ve got copyright in the script, in the story and then the directors and the music and then music itself, you’ve got lyrics and then the music, and then the performers’ rights and the broadcasters’… The record makers’ rights. Yeah, and then as I mentioned, in patents, the patent thickets are a huge problem. We’ve got all these overlapping rights, and they stop people from being able to make the most of the IP. So it’s an ongoing issue and it’s yeah, it’s a very interesting problem to think about and hopefully students can come away from the course, not only understanding IP, but maybe thinking about it critically, and are there better ways to go at the same intentions of the IP system? Could we actually solve the problem better than what we’re now doing?
22:13 MS: ‘Cause I mean, moving it back to the beginning you’ve gotta find creative solutions. And this seems like a field in which most of the problems that arise are gonna be creative problems, ones that root back to someone having created something. So if you’re not finding creative solutions to your creative problems, what are you solving?
22:30 MJ: That’s right, and you don’t want to, in rewarding creativity, you certainly don’t want to end up having the effect of actually stifling it, which some people would argue is what the IP system does sometimes.
22:40 MS: Well, I’m looking forward to the course. Thanks so much, Morgan.
22:42 MJ: Great, thank you.
22:48 MS: Thanks to Morgan Jarvis, the developer and instructor of Law 206706 Intellectual Property Law. You can find out all about trademarks, copyright and patents through his course at takelaw.ca. If you’re a creative, a coder, an entrepreneur, an inventor or any combination of the above, you owe it to yourself to understand IP law.
23:12 MS: Fundamentals of Canadian Law is recorded at Queen’s University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen’s Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for each podcast are created by Valérie Desrochers. You can see them at takelaw.ca and visit Valérie’s portfolio at vdesrochers.com. Thanks for listening.
Following last week’s release of the Trans Mountain Pipeline decision by the Federal Court of Appeal, we sit down with Hugo Choquette, developer and instructor of our Aboriginal Law course, and Cherie Metcalf, the creator of our Constitutional Law module for Law 201/701. We talk about the decision itself — it’s lengthy! — and unpack not only the duty to consult, but some other parts that haven’t made the headlines as strongly, as well as discussing where the federal government can go from here.
Fundamentals of Canadian Law is taking a few weeks off, to return in September with new episodes.We’ll be coming back with special guest Morgan Jarvis — creator of our new Intellectual Property course — and a follow-up on our first episode, where we talked about Southern Ontario rapper B Rich taking on Coca Cola in a trademark dispute. We’re therefore re-sharing that episode (one of our favourites!) to have the situation fresh in people’s minds for the follow-up in a few weeks. We’ll see you in September!
Nobody reads those “end user license agreements” that pop up on your phone or computer, right? We’ve all seen probably thousands of these things. We all just click “Agree”. Who has the time?
So if nobody reads them, do they matter? And if you do read them, what should you know?
Peter Kissick, the course designer for Law 204/704, Corporate Law, dropped by to answer those questions and more. He knows contracts, and we get into the details of all the documents nobody actually reads.
00:03 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I’m Matt Shepherd, and I’ve never read one of those end-user license agreements. Who has? We’ve all seen probably thousands of these things, we all just click agree. Who’s got the time? So if nobody reads them, do they matter? And if you do read them, what should you know? Peter Kissick, the course designer for Law 204/704: Corporate Law, dropped by to answer these questions and more. He knows contracts, and we get into the details of all the documents nobody actually reads. This podcast is brought to you by the Queen’s Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.
00:53 MS: I have probably read thousands or seen, never read. I’ve probably seen but never read thousands of these license agreements in my time. I’ve been using computers for a long time so these little screens have been popping up, and I’ve been agreeing for a long time. Peter, what’s going on with these? [chuckle] What are they? What am I looking at?
01:11 Peter Kissick: We refer to these things as broadly standard form contracts or contracts of adhesion because they actually pre-date computer licenses. And you can think back to a simple agreement when you park a car and there’s a sign that says, “By parking your car, you agree that we, the owner of the parking lot, is not responsible for any damage to your car.” That’s one of the original standard form contracts or contracts of adhesion. And we see them a lot in the consumer context. For instance, your utilities bill, or if you sign up for a cell phone or something like that, there’ll always be, probably pre-printed, a standard form contract like this.
01:54 PK: But I think what you’re referring to is E-U-L-A or EULA, end-user license agreement, that we often see as a pop-up whenever we want to put, oh, I don’t know, say, you could do iOS or something like that or put some operating system onto our computer or a new app or something to that effect. And I’m assuming that’s what you’re talking about, and you probably agreed to them. As you say, you started off by saying you’ve read a thousand of them. I’m betting that you are like 99.9% of the rest of the world and you’ve never actually read one or you don’t read them as you go.
02:32 MS: Sometimes I’ve sort of scrolled through real quick and thought, “Hmm. That’s interesting,” but I haven’t… No, I’ve never actually… Until the other day, for this, I actually printed out and sat down and read one. They’re legal, like they have force in law.
02:44 PK: No… And in fact, I’ve often had, I’ve had students come to me and say, “Well, I click on it, it doesn’t mean anything, right?” Well, to which I answered, “Well, why did you click something that said, ‘I agree’ or ‘I accept’?” Ontario law, in fact, is not inconsistent with the law of the rest of the world that says, “Simply by clicking, ‘I agree,’ whether you read it or not, you are bound by those terms.” So the simple click of a, a mouse click on an icon or some sort of box on your computer screen is going to be synonymous with a signature.
03:20 MS: Right.
03:20 PK: So read it or not, you’re bound.
03:23 MS: And people have done some pretty hilarious things with the fact that people don’t read these.
03:28 PK: Yeah. It is one of those ironies, right? People don’t think they’re bound but they are. Probably many users of these, the people who create these license agreements or consumer contracts probably count on the fact [chuckle] that people don’t read them. But it’s created sort of an interesting sort of a cottage industry of strange and somewhat bizarre and hilarious examples of what has been buried in these agreements. There’s one example, PC Pitstop I think was the name of the company, that buried in its EULA a provision that said, “The first person to get back to us will receive a prize of a thousand dollars.” It was buried in the midst of all the terms, and it took them five months to actually give away the thousand dollars because nobody bothered to read it.
04:27 PK: There was another company, I believe it was an antivirus software company, that on April Fool’s Day changed their license agreement terms and again buried in the midst of all the verbiage was a provision that said, “By agreeing to this license you agree that we have a claim against your immortal soul.” 2500 people apparently signed up for that service and signed away their soul. Fortunately, they amended their agreement on April 2nd to take that away. Yes, it’s… Yes. I guess one of… And sort of a slightly different and somewhat humorous and very celebrated example of this was Van Halen’s performance contract. The rock band Van Halen had a provision in their contract that said or sort of a rider to their standard production contract when they are going to have a concert. It said that the promoter shall provide certain things in their dressing room, and they included a provision that said they shall have a bowl of M&Ms in their dressing room with the brown M&Ms taken out.
05:36 PK: You’d think that’s just the eccentricity and vanity of rock stars. Well, actually it had a true purpose. They said, “We wanna make sure that the promoter actually has read our standard form contract, because if they didn’t see that provision, maybe they didn’t read closely the provision that we need in terms of our setup requirements, stress on floors, lighting, that kind of thing, because that had happened before, where they had actually had a stage collapse on them, so they wanted to use their standard form agreement to catch promoters out.
06:09 MS: Right. So if they see brown M&Ms in the bowl, they know someone’s not paying attention and it’s time to check everything out.
06:14 PK: That’s correct.
06:15 MS: ‘Cause there’s pyrotechnics involved to the Van Halen show.
06:17 PK: Absolutely. Absolutely.
06:18 MS: You wanna be really careful.
06:19 PK: So I think when that did happen, I think David Lee Roth, the singer from Van Halen wrote that when that would happen, then they would do an extra long sound check and double check everything and then they would build a promoter for that.
06:34 MS: Right. Right. So in the realm of the more serious contract, not to say that the aforementioned aren’t serious, but I own an iPhone and so I know I have clicked off on dozens of these over time, so I actually printed out an iPhone end-user license agreement. I don’t have the URL in front of me, but we’ll post it on the blog, when this podcast goes by, it is about, I would say 20 pages long, if that. It’s surprisingly readable. Like I read through it and I thought, you know, this is not… After studying the law in some of these certificate programs, one of the things I noticed about legal writing is that, generally fake legal writing seems more legal than real legal writing a lot of the time. [chuckle] When I read these things, and I read judgments, I’m like, “Oh, this is actually pretty accessible stuff,” and it wasn’t an easy read. It’s long and it’s pretty dull, but it’s a readable contract. You can go through it and understand pretty much what’s going on in here.
07:34 PK: Fair enough, fair enough. I think so. I think if anybody took their time, they would have a pretty good sense of what was in there. It’s pretty dense. There’s a lot behind all of the words, let’s just say, it’s not as long as we might think, although I’m sure it’s longer than anyone who simply wants to get on with playing with their iPhone really wants to go through. But still it’s not as long as you might think, but as I say, what’s behind all of those words? There’s been a fair bit of industry practice plus common law decisions and the like behind what’s written in there.
08:09 MS: Right. And as you go through it, there’s kind of… I’ve noticed there’s themes. It sort of breaks down, and everything kind of… There’s a lot of broad categories, and this won’t be exhaustive, but the first one that leapt out at me is, there’s a number of clauses in here that basically seem to say, there’s stuff that you can do with this phone but we don’t want you to do it and we’re not responsible if you do. So this is kind of like a copyright violation, falls in the category of things that you could do with this phone but you shouldn’t do them. But they don’t have any… Basically, they’re just sort of saying this isn’t our fault. And is that to keep third-parties from kind of… If you use the iPhone to steal music, then Sony can’t come after Apple and say, this is your fault, ’cause they said it’s not their fault in this contract that I had to read.
08:57 PK: That’s very well put. Yeah, that’s exactly right. I think the standard form agreements, it’s a relationship between the individual consumer or user and Apple, in this particular case, but Apple is trying to use this contract to minimize their legal exposure, not only to the consumer but to anybody else out there, including other service providers, other IP providers, intellectual property providers, and governments. So please don’t do that illegal activity ’cause we really don’t want to have to have any criminal exposure, let alone civil exposure. Please don’t use this to steal somebody else’s copyright because we don’t want that person suing us indirectly or facilitating that. So it’s a method of protection, absolutely.
09:50 MS: So this is like a contract between me and Apple, but there’s also they’re considering a lot of third parties when they do all the writing to craft this. Another broad category…
10:00 PK: Actually, before you move on, Matt, if you don’t mind…
10:02 MS: No, absolutely.
10:04 PK: Odds are, Apple has considered who they’re most likely to be sued by, and it’s probably not you, Matt. It’s probably to be Google or somebody of that level of substance, who probably have damages sufficient that it would merit a lawsuit. So, as much as they’re worried about you, or they may not be worried about you, to be honest with you, they are probably more worried about these third parties.
10:32 MS: Right. So they’re protecting themselves from the third parties through the mechanism of the contract.
10:38 PK: Yes. That’s correct.
10:38 MS: Because I can’t do things that will take those third parties off, or if I do, it’s clearly not Apple that did it.
10:43 PK: That’s right.
10:43 MS: It’s me as an individual acting like a jury.
10:45 PK: That’s right. For the record, that is not absolutely fail safe. Because Google is not a party to this contract. If you go ahead and do something that would violate their intellectual property, there is nothing to stop Google from suing Apple. Now Apple could say, “Hey, that wasn’t our fault. Look at this agreement, we said it was Matt’s problem.” And that may or may not be successful, but nothing could stop Google from still suing Apple because they’re not a party to the agreement.
11:15 MS: Okay, the next broad category is something that I’m calling, this might happen, but you can’t blame us if it does.
11:23 PK: That’s right, and this is now, we’re worried about Matt you suing Apple. So if for some reason, you use your phone in a specific way, whether it’s something that was authorized by Apple or not, maybe it’s a completely legitimate use for your phone and you somehow suffer some liability. Still can’t sue us. So, Apple could have done nothing wrong, you can’t sue them. Apple could have done something entirely wrong in the creation of the phone, the creation of the software or installation of software on that, and you still can’t sue them. You’re gonna say, how was that fair? Apple has done something that’s caused me injury, why can’t I sue them? We’re gonna say, well, if we don’t have that provision in all of our agreements, what’s to stop Matt from launching a lawsuit over any small thing? And since we sell millions of iPhones throughout the world, think of all those potential lawsuits. So we’re simply gonna say, “Look, in order to keep the costs of this iPhone down, we’re gonna say no one can sue us if anything bad happens. And if we didn’t have that, and we were subject to that civil exposure, the cost of an iPhone would actually rise.”
12:35 MS: But I mean, they still are to an extent, like I can only imagine if iPhones started exploding and taking people’s heads off, then that clause wouldn’t protect them.
12:45 PK: That’s correct. There are limits on how far some of these provisions can go, these disclaimer clauses for instance or waiver of liability clauses, more precise. How far can they go? Do they actually have any bearing? And the courts will give effect to them, but they will not give effect to something that would be unconscionable. So if it goes to the very heart of what an iPhone should do, and no one should actually suffer third-degree burns by putting a phone to their ear in their ordinary course of business, it’s unlikely that Apple will be able to escape liability.
13:22 MS: Okay, so something like, there’s some clauses in here about distracted driving. Does that fit more into the first case or the second case of, you can do this, but please don’t, or if you undergo harm while doing this, we can’t be blamed for it.
13:38 PK: Yeah, I think it goes a little of both to be perfectly honest with you, but they’re probably more worried about the first case than the second case. They don’t want… Because you’re driving along, texting or using your phone and not paying attention, and you hit some third party, Apple’s probably more worried about that third party coming back against them, yeah.
13:58 MS: Okay, and data overages is another one, where if this happens, this is on you, it’s not on us.
14:04 PK: That’s right, that’s right. And in that sort of situation, they’re saying that’s truly beyond our control, so we absolutely don’t wanna have that. What Apple is trying to do here is, you could say that there are legal justifications behind a lot of things. A lot of these things are business justifications, they are trying to get cost certainty. So they wanna know that when they sell you that iPhone, they know what their costs were in building that iPhone and they don’t want any contingencies going forward.
14:32 MS: Right.
14:33 PK: Yeah.
14:33 MS: And while law suits are definitely a contingency you can’t plan for, so they’re trying to hedge those bets as much as they can contractually.
14:40 PK: That’s right. Right, and which is no different actually than when you think about sort of the waivers that you see or the warnings that you see on any product. A product manufacturer is worried about product’s liability lawsuits. This is sort of the cell phone equivalent of that.
14:55 MS: Okay.
14:55 PK: Yeah.
14:56 MS: And the third broad category that I saw all over the place had a lot to do with data collection. So it’s basically just saying, we are gonna be gathering data from you for a variety of purposes like maps is one where they’re saying, we need your data to provide the service, so we’re gonna go ahead and take your data to provide this service. And there’s a lot, there’s a ton of sort of data use clauses scattered throughout here.
15:22 PK: Absolutely, absolutely. And those fall into a number of different laws. If we set the United States aside for the moment. And for the record, the Apple agreement is probably going to be unique by jurisdiction, they’re probably gonna revise it slightly, jurisdiction by jurisdiction. In Canada, we have private data collection laws, Personal Information Protection and Electronic Documents Act or PIPEDA, actually regulates when someone can collect data. So this is complying with the Canadian statute. That’s true in the European Union, which whose laws are even stronger. The United States doesn’t have such a statute, but they certainly have Tort Law that will apply when someone has some, for instance, could sue for invasion of privacy or something to the equivalent of that effect. And we have a variant of that in Canada as well. So there’s common law reasons for this, but there’s a lot of statutory regulation that Apple’s complying with.
16:21 MS: Right. And the other big piece of language I see in here, it’s mainly sort of licensing stuff. It’s, we use this but it’s a license of that, we use this and it’s a license of this other thing. And I guess they just kind of have to put that in for, well, legal reasons.
16:36 PK: Well, yeah, they are doing it for legal reasons. Again, their iPhone is based on other, to some degree is based on other people’s intellectual property they’ve entered into agreements, as well as there’s some statutory language that protects copyrights, trademarks, that sort of thing, of third parties and are saying, some third-party supplier provides something that is integral to an iPhone, part of the agreement that licenses that material to Apple is gonna say, and you must, we grant you this license and you must tell everybody that you have a license that that’s not proprietary or owned by Apple. And so they’re checking off a box in their contractual obligations really. It doesn’t really impact on you whatsoever and you probably don’t really care, but they are simply making sure that people realize that this is not all owned by Apple.
17:34 MS: So, there is a massive section of this that’s in all caps. Why suddenly the shift from [chuckle] regular case typing to there’s like about, well I would say three pages in total in here where suddenly just shift, is this to denote that this is the most important part of the contract?
17:52 PK: It’s very interesting that you point out that it’s three pages long, it’s supposed to point out the most unusual or most onerous terms [chuckle] in the standard form contract. But yeah, as you say, it’s about 30% of the agreement [chuckle] seems to be in caps. Some of it is not just in caps, but it’s in bold as well. I guess they really want you to notice that. And that’s literally what the law is. The old English law that’s been adopted in common law Canada is that in any standard form contract, the courts will accept that. But usually standard form contracts are one-sided, they are there to protect the service provider, the Apple, Rogers or Bell or somebody to that effect and not you, the consumer. Again, the point being that we’re trying to keep our costs down.
18:36 PK: The courts will enforce those, because you clicked, “I agree.” But there are some things that tick off the courts and say, “We’re not gonna enforce that, we’ve already mentioned the unconscionable clauses.” But the other point under the old Anglo-Canadian law is that you’ve gotta give notice of terms that would be unusual or unexpected by the consumer where the consumer to actually read them or they would be onerous. And, by onerous, we mean we’re flipping the onus. We’re flipping the protection from the, what would typically be borne by the service provider onto you, you’re accepting the risk yourself, so a waiver of any liability.
19:19 PK: A disclaimer saying, “Hey, we Apple, don’t promise that this iPhone will actually do what it says it does and you can’t sue us.” Those things where ordinarily that would be their obligation, those are the provisions that are typically put in capital letters or in bold. Because they’re supposed to be providing notice to you, “Hey, look at this, it’s in bold and caps and sort of, our texts speak now, we put it all in caps, they’re yelling at you.” And that’s the standard form contract equivalent of that. And if they don’t do that, the courts have said, “Well, we’re not gonna enforce that.”
19:54 MS: So, onerousness is kind of a comeback to these contracts, or is it?
20:00 PK: In a sense that they are… From a consumer’s perspective?
20:03 MS: From my consumer’s perspective, they’ve had to do this. Because if they didn’t do this, a court could theoretically say, “No, this contract isn’t relevant because you’ve buried some very important language.” You haven’t made it easy to read and you haven’t made it obvious. Is it possible of contracts that they’re just too big for someone to read?
20:22 PK: It’s interesting that our laws have gone down this road and then they seemed to have stopped. People have made the complaint that some service providers who aren’t as considerate as Apple is here. As you point out, this actually does read grammatically well. There are others who have contracts that are two or three times the length of this and legally, how could you ever actually find this language and is buried. And the courts still seem to have accepted them. I think the courts are probably waiting for governments to come along and say, “In the interest of consumer protection, you must have these particular terms. You must write them in a certain way.” And our federal government has gone down that road a little bit with cell phone contracts now.
21:14 MS: Right.
21:15 PK: Right.
21:15 MS: They have to be, to some extent, understandable to the lay person.
21:19 PK: Correct.
21:19 MS: It’s been kind of weirdly rewarding to read this. [chuckle] I’m glad I did it. I don’t think I’m ever gonna do this again. So, how much does this map, like if I have read Apple’s terms and conditions, can I sort of say that I get the gist of most of these, or are they unique enough that really, I should sit down with my Rogers internet provider contract and read it as well? Or is it just gonna be kind of the same stuff in a different order?
21:45 PK: They are broadly the same. We covered certain categories that you’re certainly gonna see in virtually every standard form contract, a waiver of liability. Even if you somehow manage to successfully sue us, our liability is capped at a certain amount of money. These third-party obligations… You’re gonna see all of those things. I think one of the key things here to take away is where there’s gonna be a variation is what they’re disclaiming from contract to contract and what a cell phone provider is gonna disclaim is gonna be different than what Apple is gonna be disclaiming for instance.
22:27 PK: So, I still think it’s worthwhile. Especially when you’re signing a contract and you’re clicking on terms, or looking at a standard form contract for something where somebody’s providing a service to you. Apple’s providing you with a phone, Bell or Rogers are providing you with a cell phone. Look and see what is in fact disclaimed and what is not. I think that’s quite valuable to you. But otherwise, yes. They’re broadly similar.
22:50 MS: Right. And broadly speaking, I should be able to go through and look for capital letters and bolding to see what’s the most onerous in terms of… What’s the highest burden on me as a consumer should be apparent.
23:00 PK: Interestingly, the burden on you as a consumer is extremely high. You’re deemed to have read these terms and understood these terms simply by clicking, “I agree.” So, the onus is in fact, on you. But you’re right, if you look through and read the bold print and the capital letters, those are going to be the most, shall we say, injurious provisions for you.
23:24 MS: Okay.
23:25 PK: Okay?
23:25 MS: Well, this has been really helpful. Thank you, Peter.
23:27 PK: It’s not often anyone is struck so fancifully by standard form contracts till I get a chance to talk about it. So, thank you, Matt.
23:37 MS: Thanks to Peter Kissick, the designer of our corporate law course. If you’re interested in contracts and business law, you should take a look at Law 204/704: Corporate Law at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen’s University situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen’s Law. You can find out more about our music at meganhamiltonmusic.wordpress.com. Original illustrations for each podcast are created by Valerie Desrochers. You can see them at takelaw.ca. And visit Valerie’s portfolio at vdesrochers.com. Thanks for listening.
With more and more of our interactions happening online you have probably clicked yes to hundreds of terms of service agreements. It is a running joke that no one ever reads these—recently many commenters made jokes in the wake of President Donald Trump’s summit with North Korea that the Apple Terms of Service prohibit using their products for the “development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons”. For many of us the question becomes: what have we agreed to, and more importantly, are we bound by clicking yes on a Terms of Service contract?
These kinds of contracts are known in contract law as “standard form contracts”—the offeror provides the offer in the form of the final contract and those who wish to accept it are put to what the Supreme Court of Canada describes as a “take‑it‑or‑leave‑it proposition”. You either accept the terms and sign the contract, or you do not, and you try to find similar services by another offeror.
These types of contracts aren’t just found in terms of service; they often take the form of liability waivers, insurance contracts, rental contracts and many others where the person accepting the offer has no ability to negotiate terms.
Because of this factual matrix and the differences in bargaining powers, the courts have recognized exceptions to the general rules of contract when looking at the enforcement of standard form contracts. For example, the general rule is that where a person has signed a contract, it is “immaterial” to their liability under that contract whether or not they have read it—the other party is entitled to rely on their acceptance. There are exceptions to this general rule for standard form contracts, the most important of which are where the signature was induced by fraud or misrepresentation, and where the other party knew or had reason to know that the person accepting the contract was mistaken as to its terms. In those circumstances, a party will not be bound by their acceptance of the standard form contract.
Another important rule is that a party offering a standard form contract does not have to take positive steps to ensure that the accepting party has read or understands the agreement or its terms. The exception to this general rule is that, in circumstances where a reasonable person should have known that the party signing was not consenting to the terms in question, the offering party must take reasonable steps to apprise the accepting party of the contract’s onerous terms and ensure that they read and understand them. This rule is why you may see onerous terms in a terms of service agreement bolded, or you might be required to scroll through the entire agreement before you can click accept. The courts have held that these kinds of procedures can ensure that those offering standard form contracts can rely on your acceptance of them because they have the effect of bringing onerous terms to your attention, and (at least in theory) force you to read the entire agreement.
In reality, most of us (even law students) do not read terms of service agreements. However, even if you don’t read these contracts, it is important to understand the extent to which you will be bound by them and the basic rules that govern their use and enforcement.
– Isabelle Crew
Art: Valérie Desrochers
#metoo has been changing how we see and react to harassment for some time now — but what is the definition of harassment? Let’s take a look at the Ontario Health & Safety Act with Workplace Law instructor Colleen Dempsey, and explore what conduct is legally harassing, how it affects workers in the province, and what implications it might have moving forward.
Fundamentals of Canadian Law is brought to you by the Queen’s Certificate in Law; to find out more about our workplace law course and how to get the only certificate in law offered by a law faculty in Canada, visit us at takelaw.ca.
00:04 Speaker 1: Welcome to Fundamentals of Canadian Law. For over a year now, we’ve been watching the Me Too movement and a seismic shift in public perception and consequences around harassment. But Me Too has been very Hollywood-centric. We’ve been seeing some news and changes on the Canadian side, but as something that’s rooted in the definition of harassment, we wanted to get a better understanding of where the law actually stands. Fortunately, Colleen Dempsey can explain it all. She is the instructor of Law 203/703, Workplace Law, and she’s gonna walk us through recent changes to the Ontario Health and Safety Act. It wasn’t changed in response to Me Too, but the timing couldn’t be more pertinent to the cultural conversation around harassment happening right now. This podcast is brought to you by the Queen’s Certificate in Law, the only online Certificate in Law offered by a law faculty in Canada. You can find out more at takelaw.ca.
01:09 S1: Why has the province updated the Occupational Health and Safety Legislation?
01:14 Colleen Dempsey: The province had experienced through the complaint process a number of concerns over a period of time that involved unwanted advances, unwanted comments, unwanted touching, things that constitute harassment. They also updated it with respect to violence and then under a subset of harassment was sexual harassment. So they had a number of people, hundreds of people, thousands of people who made complaints under the Act, but there was no mechanism for these things to be dealt with until they actually amended the Act.
01:45 S1: Under the Act as it is now, following the amendments, what is the definition of harassment in Ontario?
01:51 CD: The Occupational Health and Safety Act defines harassment, workplace harassment as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or reasonably known to be unwelcome. And when they say “Vexatious,” what they mean in law is that its sole purpose is to cause annoyance, frustration, or harassment to the intended victim.
02:11 S1: So, there’s kind of two elements there. One is that it’s annoying or frustrating or harassing and the other is you have to mean to do it.
02:19 CD: Right. So always, when we’re dealing with this type of Act, it’s called mens rea, you have to have a guilty mind. And it doesn’t matter that you might think it’s innocent or you think you’re just playing. The fact of the matter is, you would probably get that it’s unwelcome because of the way in which the recipient responds to it, or for that matter doesn’t respond to it.
02:39 S1: So is there an element of persistence then to it as well? If something is, like, “That’s unwelcome. Don’t do it again?” Or is it kind of the first time you do it, that can in itself be problematic?
02:49 CD: Well, typically, the comment or conduct occurs more than once. It can in fact be only once. It could be so egregious that it’s a single instance. However, it can occur over relatively short periods of time. For instance, during the course of one day, or a longer period like weeks, days, months, what have you. And when the situation is a single instance, an example of this would be unwanted sexual solicitation or an advancement on the person from a supervisor or manager that constitutes workplace sexual harassment where there is particularly a power imbalance.
03:22 S1: And we’ve mentioned the word unwelcome a few times. I think unwelcome is fairly self-explanatory, but the fact that we’re saying unwelcome now is actually a step forward with the law itself, right?
03:34 CD: Absolutely. For a long time, people took the position that it was in good fun; that it was okay for people to make comments about other people’s appearance, their sexual desirability, the color of their skin, the length of their hair, did they smile, did they not smile, did they have hair, are they skinny, are they not skinny, do they have a prominent behind, do they have prominent breasts? And people felt absolutely free to make comments. Typically, the comments, and we’re speaking in a heteronormative sense, were from straight men to straight women, but that doesn’t mean that it didn’t occur from women to men and/or it didn’t occur from men to gay men or to lesbians and in an attempt to intimidate or to isolate an individual.
04:20 S1: So this law obviously applies equally to everyone.
04:23 CD: Absolutely. Anyone who’s classified as a worker under the Act.
04:26 S1: But the use of the word unwelcome is actually… It’s a different word now.
04:30 CD: Yes.
04:30 S1: And it used to be sort of deemed offensive, or…
04:34 CD: So it had to be it was from the perspective of the reasonable person that it was objectively offensive and what not. But the point now, it’s in fact from the recipient. From the perspective of the recipient, is this an unwelcome intrusion into their life? And they give examples such as making remarks, jokes, or innuendos that demean, ridicule, intimidate, or offend a person, displaying or circulating offensive photographs or material in print or electronic form, bullying someone, repeated offensive or intimidating phone calls, emails, unwanted touching, unwanted sexual harassment, even brushing up against someone if you do so in a deliberate fashion and you touched their behind, you go… Rubbing someone’s forehead. Like there are things that people should just not do and people have done in the past and there came a point where the government realized enough was enough.
05:28 S1: Right. And everything you mention, some of these things, I have seen myself in workplaces I’ve been in the past. I should stress that I’ve seen none [chuckle] of these things in the workplace where I am right now…
05:38 CD: Go Queen’s Law.
05:39 S1: Exactly. But I either have seen or can easily imagine all of these behaviors and I can also kind of squint and see how if I think back to when I was a kid, or when slightly older listeners might have been kind of young professionals, how all of this did use to be sort of hand waved away.
05:58 CD: Mm-hmm.
05:58 S1: So this is a stronger stance legislatively against stuff that we just used to not take as seriously, I guess.
06:06 CD: Well, absolutely. This certainly predates the #Metoo movement. This was a recognition of a past that in many respects, we as a society have moved forward as we have evolved the manner in which we have structured our Human Rights Legislation. As time goes on, we expand that which is protected grounds. To prevent discrimination or harassment you are prohibited to harass someone on the basis of race, ancestry, their place of origin, their color, their ethnic origin, their citizenship, their creed, which is a more archaic way of saying religion, sex, including pregnancy, their sexual orientation, their gender identity, their gender expression, their age, be it over or under 18 or 16, marital status, family status, disability, whether or not they’re in receipt of public assistance, that is, of course, an accommodation, and the record of offenses in employment. So we expand the specific grounds, and we also have what’s known as analogous grounds. If we say individuals who are not specifically set out in the Human Rights Code or in the Occupational Health and Safety Act but we recognize that they represent a discreet and vulnerable group in our society, so we will protect them as well. And we also say, as a society, it is inappropriate to discriminate or harass people in areas of employment, housing, services, and education.
07:32 S1: And this is all pretty central to Workplace Law. This is essential things that people need to know if they’re going to be in or going to be managing a workplace.
07:40 CD: Absolutely. There is now and there didn’t used to be, a positive duty on employers to create anti-harassment policies. And the onus is on them to provide this information to new employees so they understand what their rights are and, frankly, what their obligations are. So if one is, unfortunately, the recipient of harassment you can’t just, or you shouldn’t just sit there and say to yourself, “Okay, it’ll go away. It’ll go away.” You have a positive duty to say something. We all have a role in this in our workplaces to prevent this from going further. So if someone harasses you or you are a witness to harassment of a colleague, it is incumbent upon you to go to the person who is the HR, the supervisor, and say, “I have seen X, Y and Z occur,” and then it’s incumbent on them to address it. And there are reporting obligations through the Occupational Health and Safety Act and whether or not you call the Ministry of Labor, but you must take that first step.
08:40 S1: So this idea of it being incumbent on you, that’s what’s meant by a positive duty?
08:44 CD: Yes, a positive duty that… We all have a role to play, and the only way that we can prevent workplace harassment and workplace sexual harassment is if we all recognize our duties. And certainly, now employers have this obligation to investigate complaints. Previously, people would go and say, “Oh, so-and-so is causing a problem. He or she is making inappropriate comments about someone’s attire or their national dress,” or what have you, and they would… Employers would go and say, “Hey, please don’t do this.” Now you have to fill out reports. You have to acknowledge. And if there’s a pattern of conduct, then this constitutes an opportunity to terminate someone’s employment so that they are no longer in a position to offend.
09:28 S1: When we started looking at types of conduct, when you were reading the definition of harassment and we unpacked it into certain areas. There seem to be two large areas in there. One is things that can happen peer-to-peer, but the other is this idea of an imbalance of power. That this can play out in a way that… The law is supposed to prevent people who are at a higher level or have more power from literally abusing the people who are underneath them.
09:54 CD: Right and taking advantage of them. So there is a recognition throughout our legal system that where there is an imbalance of power, be it an employer, an employee… And it used to be called the master-servant relationship in recognition that the person who holds the purse strings ultimately they can prevent you from advancing. They can prevent you from getting raises. They can, in fact, prevent you from doing your job. It can cause mental health issues. It can cause physical health issues. A person in position to confer or grant you a benefit or somehow an advancement in your workplace, they must not solicit you for sex, for sexual favors, or they must not harass you. People have, unfortunately, been victimized by inappropriate images of a racial nature or a sexual nature. I, myself, when I was [chuckle] a general counsel, on the highest legal officer in a corporation, I had a male employee send me a photograph that was pornographic in nature, and he thought it was hysterical. He could not understand what it was I didn’t like about this photograph. And, in fact, we had to sit him down with a sensitivity counselor for him to understand that in no shape, way, or form was I interested in receiving this from anyone, let alone somebody I had spoken two words to.
11:10 S1: Right.
11:11 CD: And he took it as I had no sense of humor, whereas he had to understand he was inappropriate. It was unwelcome.
11:20 S1: Right.
11:21 CD: And that is now the change. The person who’s the recipient no longer has the onus to say, “Well, this is why it’s… I’m not a sensitive person. Other people would be disturbed by this as well.” We can no longer accept workplaces where individuals are treated in that fashion.
11:41 S1: Broadly speaking, this legislation represents a shift to an environment where the law is moving kind of with society.
11:49 CD: Right.
11:50 S1: This is something that comes up fairly often in this space is that the law is a living document.
11:55 CD: Absolutely.
11:56 S1: It’s evolving with us, so it feels like as a society we’re saying things that we used to accept we no longer accept and the law has now kind of… I don’t know if it’s catching up. It sounds like, from your example it catches up in some places and it sort of forces people forward in others.
12:12 CD: Well, if you look at the law, in general, in Canada, and in fact, if you consider the person’s case that recognized women were people under the law, the language in there, in fact, the law is a living tree that we recognize as our society evolves, and groups and individuals that were previously considered to be less than are welcomed into the tent of our society and are valued members of our society. And if we look, by contrast, to other jurisdictions, we can see that people are not so welcoming. In fact, when I was in law school, that was when the legislation went through to recognize same-sex partners, providing spousal benefits, and eventually the right to marry. And these are issues of rights and Canadians have a strong belief, and this is demonstrated through survey after survey that Canadians are not comfortable with the idea of restricting rights. We are more an inclusive view of rights as opposed to an exclusive list of rights. So that’s why we have analogous grounds. So if you don’t fit within the 17 categories, but you can demonstrate that analogy to those categories, then the law says, “We will protect you.”
13:22 CD: And over time we recognize that the past treatment of individuals and asking people to accept what is truly unwelcome and unacceptable behavior. And I would emphasize that it’s not that every person in every workplace was experiencing this. What it was was very often a single person in a workplace was engaging this conduct over a course of time to many, many people. And so, you have one person who, through a desire to intimidate or to hassle and what have you, made the work experience of so many people uncomfortable. We’re talking about invading people’s personal space, demanding hugs, and this is course of a sexual nature, verbally abusing people, or making gender-related comments about physical characteristics, the mannerisms, saying to a man, if he was considered to be an effeminate man or a woman who was considered to be butch. None of these things have anything to do with someone’s job and how in fact they do their job. But people did feel free to comment on, down to you didn’t smile today. “What’s a nice girl like you… Why wouldn’t you smile?” Maybe that person doesn’t wanna smile. Maybe they’re not feeling like smiling.
14:40 CD: So we… And we want to also take a stand against violence in the workplace, because often the harassment can escalate into a position of violence where individuals are rebuffed. A good example of evolution in our society is gender identity and gender expression. So gender identity is a person’s internal and individual experience with gender and it’s their sense of being a man, a woman, both, neither, or somewhere, anywhere in between on the gender spectrum. And the manner which they express that is their choice. And gender expression is how they publicly express this. For a long time people felt that you are either a man or a woman. And in fact, one of my dear friends, a well known professor, a legal professor, transitioned from a man to a woman at the age of 69. That would have been unheard of 20 years ago. Even in a progressive profession like the law, this person would have been looked at askance. But now people go, “Oh, I understand.”
15:50 S1: Yeah. And, so the law’s sort of evolving with us.
15:54 CD: Absolutely.
15:54 S1: And as we move forward. What you were talking about, people who are gender fluid, that’s a situation that was once analogous and is now text.
16:04 CD: Correct.
16:04 S1: So this is… I don’t think there’s any way to predict the future accurately but it’s interesting to think that if people are bringing up analogous grounds today, that may well become the text of tomorrow.
16:16 CD: This in fact is how our laws work. If you consider disability, for a very long time employers were not required, if someone had a hearing difficulty or if they had a visual difficulty, the employer was like, “Well, you can’t do the job.” But now, we’ve reached the point where we’re saying, “No, no, no. Is hearing or sight a bonafide occupational requirement? And if you’re gonna say that it is, you better be able to demonstrate that both objectively and subjectively.”
16:43 S1: Right.
16:43 CD: And now employers have a duty to accommodate people to the point of undue hardship. And this is something that was not the case. I, myself, having two children, one of whom is legally blind and the other has a hearing impairment, had my children been born say 25 years ago, they would face very different workplaces and they will when they are adults and they won’t be adults for a good 10 years. So I have great hope for what the workplace will look like for them, particularly as they are young girls.
17:14 S1: Right.
17:15 CD: And I fully recognize that men and race and gender and gender fluidity are also vulnerable groups. If you think about that.
17:29 S1: So it feels like kind of at the end of the day, and Workplace Law is complicated. This is why we have an entire course about it. [chuckle] And well done, you, for taking us through this course.
17:37 CD: Thank you.
17:40 S1: It feels like, though, at the end of the day, if there’s just one nugget, if there’s a golden rule, it’s if it doesn’t have anything to do with the actual job that’s being done, leave it out.
17:49 CD: Absolutely. Of course we don’t wanna create workplaces where people have no human interaction. But as you say, if it is nothing to do with the job, err on the side of caution, simply because someone might find it unwelcome, and they may not feel in a position where they can express their discomfort. And I’m thinking in the future where I do think the law will continue to evolve is under the definition of who a worker is because there are certain restrictions both under the Employment Standards Act and the Occupational Health and Safety Act of what constitutes a worker, and so this causes problems for people who are in precarious employment situations, and the law does not provide them with the same coverage that it does for people who are in traditional employment relationships. So I think the law will then expand the definition of who is covered.
18:40 S1: I think that’s probably an interesting second conversation actually.
18:45 CD: Well, hopefully we will have it.
18:46 S1: Yeah, thank you very much.
18:47 CD: Thank you for having me.
18:51 S1: Thanks to Colleen Dempsey. If you have employees, plan to hire employees or are an employee, you should work into our course on Workplace Law, Law 203/703. Find out more at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen’s University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton and original illustrations for this podcast available at takelaw.ca are by Valérie Desrochers. Thanks for listening.