A look inside solitary (and the promise of reform)

Solitary BreakSolitary! 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.

 

 

TRANSCRIPT

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.

The Trans Mountain Pipeline Decision

PipelineFollowing 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.

The Contracts Nobody Reads

Devouring Phone Contract. Illustration: Valérie DesrochersNobody 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.

 

Transcript:

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.

The Most Expensive Comma in the World — Fundamentals of Canadian Law

Comma dreams of moneyWhat’s in a comma? A lot of zeroes, sometimes — Law 204/704 developer Peter Kissick joins us to talk about a legendary case involving a comma, utility poles and $2.1 million dollars. That’s a gateway to a broader conversation about contracts: what they are, how they work, and what most of us are getting absolutely wrong.

Comma in question

The comma in question: this piece of punctuation cost a Canadian company over $2 million.

Be a Court Case Detective – Fundamentals of Canadian Law 007

Detective in a computer

You, too, can be a court sleuth — thanks to CanLII and the expert guidance of professor Mary Jo Maur!

Dive into the amazing world of case research with professor Mary Jo Maur, developer and instructor of Law 201/701 — Introduction to Canadian Law in this edition of the podcast! We plunge into the amazing world of CanLII, a Canadian online database that collects court decisions from across the nation, with a dizzying array of search options and ways to find exactly the information you’re looking for.

It’s pretty amazing! Mary Jo walks us through how to find almost anything related to court outcomes on CanLII, and also some valuable pointers on how to read the cases once you find them. If you’ve ever wanted to know — well, anything — about court cases and outcomes from coast to coast, this is 20-odd minutes you won’t regret spending with us.

What’s in a name? Deciphering the secret world of “Styles of Cause”

Chances are you’ve seen or heard the name of a legal case. Lawyers call this the “style of cause.” Once you’ve cracked the code for a style of cause, there’s a lot of information in one short title!

Format: A v B

Styles of cause are formatted in the same basic form:

Name of Plaintiff v Name of Defendant/ Respondent

The plaintiff is the person bringing the case before the court. The defendant/respondent is the person who must defend the charge or respond to the claim. Where there are multiple plaintiffs and/or defendants, the name of the first plaintiff and defendant, respectively, will be used.

Illustration of styles of cause.

What do names mean?

A natural person (an individual human, rather than a private or public organization) is represented in a style of cause by their last name. Therefore, If Bill Smith is suing Bob Jones, the style of cause will be Smith v Jones.

Corporations are also legal persons. In a style of cause a corporation is represented by its official corporate name. Therefore, if General Motors is suing City National Leasing, the style of cause will be General Motors of Canada Ltd v City National Leasing.

Other types of legal persons can also bring and respond to legal cases and will represented by their official names. These types of legal persons include non-governmental organizations, First Nations, Crown Corporations, etc.

“R” stands for Crime (sort of)

In a criminal case, the person bringing the case is the Crown. In a criminal case the name of the “plaintiff” is represented by the letter R—this is short for Regina (Queen) or Rex (King). Therefore, if John Brown is being charged with a criminal offence, the style of cause will be R v Brown.

…but the government is more than “R”!

R is not the only way to represent a government entity in a style of cause. Cases can also be brought by or against a government entity in the form of challenging the constitutionality of law or a decision made by the government entity. For example, if Terri Jean Bedford is challenging the constitutionality of a federal law, she will bring the claim against Canada, as represented by the Attorney General. The style of cause will be Bedford v Canada (Attorney General). If Grassy Narrows First Nation brings a case challenging the decision of the Ontario Ministry of Natural Resources, the style of cause will be Grassy Narrows First Nation v Ontario (Natural Resources).

Don’t say “vee!”

In Canada, the “v” separating the two parties is not pronounced “vee” when speaking. We just say “and”. Americans say “vee”, and you’ve probably heard this on TV, but avoid a rookie mistake in Canada and say “and” when dividing the names of parties to a proceeding!

– Isabelle Crew (3L, Faculty of Law, Queen’s University)

Presumed Innocent: Fundamentals of Canadian Law Podcast 005

We’re joined once again by Queen’s Law professor, and developer of the Law 201/701 Criminal Law module, Lisa Kerr. The topic: presumption of innocence. Why is it the bedrock of our criminal justice system? How does it level the playing field of one person versus all of society? And… is it really as venerable and ancient a principle as we think it is? Lisa joins us via Skype from New York to talk about all of this, and more!

Marijuana Legalization and the Federal-Provincial Relationship: Fundamentals of Canadian Law Podcast 004

We all know that the Canadian federal government is decriminalizing marijuana, but what does that mean? Queen’s Associate Dean Academic, Cherie Metcalf, is here to explain how the federal government and provincial governments are legally linked, and how that intricate relationship is key to understanding how pot decriminalization will happen. Cherie is also the creator of the Constitutional Law module for Law 201/701 in the Queen’s Certificate in Law — to find out more about the only online certificate in law offered in Canada by a law faculty, visit http://takelaw.ca.

The difference between “Aboriginal” and “Indigenous” Law with Hugo Choquette: Fundamentals of Canadian Law Podcast 003

Totem Pole in Vancouver BCAboriginal Law? Indigenous Law? What’s the difference? There is one — and it’s huge! We unpack what the terminology means (and how we arrived at “Indigenous” as the preferred* term for pre-colonial North American peoples) in an in-depth discussion with Hugo Choquette, Queen’s Law professor and the developer of Law 202/702, Aboriginal Law, in the Certificate in Law program.

*kind of. It’s complicated! Listen to the episode.

The “Convict Code,” Prison Law and Duress: Fundamentals of Canadian Law 002

Crowd of small symbolic 3d figures, isolatedThis week on Fundamentals of Canadian Law, the “Convict Code,” duress as a defense, and prison discipline — we’re joined by professor Lisa Kerr, a faculty member at Queen’s Law and the creator of the Criminal Law module of Law 201/701: Introduction to Canadian Law for the Queen’s Certificate in Law. We talk about a recent court case and how the “prison code” and the principle of duress as a defense factor into disciplinary decisions in prisons.