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Will election derail contentious legislation again?

|Written By Michael McKiernan

Legal observers are gearing up for a busy legislative year in Ottawa with a number of high-profile bills back up for discussion following the Christmas break.

Frank Addario

Parliament has past only 11 bills so far during this session, and after prorogation wiped the legislative slate clean at the start of 2010, the threat to the order paper this year comes in the form of a looming election as some commentators forecast a possible poll as early as this spring.

Intellectual property lawyer Barry Sookman is hoping the minority government can hold on long enough to pass bill C-32, the long-awaited copyright modernization act currently at the committee stage in the House of Commons.

Sookman, a partner at McCarthy Tétrault LLP, says that as Canada’s current Copyright Act is still firmly rooted in the 20th century, bill C-32 is “sorely needed” to bring it up to date.

“The Copyright Act as it exists today was pretty much modeled after analogue technology,” he says. “It has not been brought into the 21st century to take into account digital developments, including the Internet and network systems.

All of our international trading partners have updated their laws to make them more adapted to digital technologies, so it’s high time we joined them.”

Sookman sees the copyright update as a major hole in Canada’s legal infrastructure for dealing with the Internet age. The government has updated privacy legislation, while an anti-spam bill finally received Royal assent in December after prorogation derailed it.

One sticking point appears to be over digital locks. The legislation proposes a ban on copying materials such as video games, movies, music, and TV shows for personal use if they contain them.

But Sookman says the issue has been overblown. He believes the Liberals largely favour digital locks and says iTunes, which controls almost two-thirds of the digital music market, has no locks on its songs.

“I actually don’t see a big divergence between the Conservatives and the Liberals and certainly not as great as it’s been painted,” he says, noting minor amendments will probably bridge the gap between the parties.

Sookman adds that most of his concerns with the bill are on a technical level, including that the wording of provisions intended to crack down on pirate sites could offer loopholes to escape enforcement. Still, he hopes MPs will iron those issues out in order to get the legislation passed.

“We all hope that this bill does not get bogged down in politics and that an election doesn’t result in having to start over again,” he says.

One person who may be more enthusiastic about the prospect of an early election is Frank Addario. The former president of the Criminal Lawyers’ Association isn’t happy about a raft of law-and-order bills on the government agenda.

He fears Canada is heading down the tough-on-crime path already taken by a number of American states that now find themselves in trouble as a result.

“They can’t empty their prisons fast enough because they’ve learned that imprisonment is one of the most expensive habits the state can develop,” Addario says.

“Instead of learning from that experience, the federal government seems doomed to repeat it. It’s tough, it’s muscular but it’s ultimately ineffective criminal law legislation.

The taxpayer gets shafted because they were promised safer streets when five years later they discover the streets are no safer, but the money’s been spent.”

In Addario’s view, bill C-16, which would restrict a judge’s ability to apply conditional sentences in certain cases, tackles a non-existent problem.

“There is no evidence that judges in Canada are out of control or incapable of exercising their discretion in such a way as to meet the community need for deterrence and denunciation of property crimes and serious crimes,” he says, adding that the removal of judicial discretion interferes with the ability of prosecutors to negotiate resolutions, thereby lengthening sentences and increasing the likelihood of recidivism.

Addario believes the opposition parties are reluctant to take a stand against the government’s justice legislation for fear it will label them weak on crime, an issue that will only grow with an election looming.

The Truth in Sentencing Act passed in 2009, for example, showed the opposition parties have “no inclination to challenge these bills on an effectiveness basis,” he says.

Another hot election topic could be bill C-49, the federal government’s response to human smugglers. The problem with the bill, according to Gordon Maynard, a past chairman of the Canadian Bar Association’s national citizenship and immigration law section, is that “little of bill C-49 is directed at them.” It instead targets the refugee claimants themselves regardless of whether their claims are valid or not, he says.

“It seems to be very political, very broad, very harsh, and inappropriate to the claimant’s needs,” says Maynard, who outlined the CBA’s opposition to the bill in a submission at the end of last year.

The government tabled the bill after the arrival of a second ship of Tamil refugees on the coast of British Columbia last year. Under the legislation, refugees who arrive in those circumstances could face 12 months of detention without the possibility of review.

Even if officials approve their claim, they’d be unable to apply for permanent residence or any travel documents for five years.

“They’re in a very tenuous situation for those five years,” Maynard says. “It’s arguably contrary to obligations Canada has under international treaties as to how refugees should be treated. They’re supposed to be integrated, not treated differently to anyone else, and the detention itself would probably run afoul of the Charter.”

In December, the Liberals indicated they wouldn’t support the bill, but Maynard suspects the government may put it up for a vote anyway to make a political point.

“They may want to try and score points with people who think that one boat is too many and buy into the argument that unless there’s a serious response, more boats are coming.

We understand that mass arrivals by boat raise public ire. It offends people to see boats arrive. There are responses that one can take to it, but this response is excessive.”

Lorne Waldman, a Toronto immigration lawyer, says the legislation may not even be necessary and notes that recent decisions by the Federal Court involving claimants who arrived on the Sri Lankan boats show the justice system is adapting the existing legislation.

In his Dec. 3 decision in Canada (Citizenship and Immigration) v. B479, Justice Russel Zinn stayed the claimant’s release while noting that the nature of the arrival was a factor to consider.

“While detention is not taken lightly, those who arrive en masse should expect that this extraordinary occurrence will require significant resources and that it will take some significant time to resolve the public interest concerns of the country upon whose shores they have landed,” Zinn wrote.

“The government says we need all these anti-smuggling laws because our current system isn’t working properly,” Waldman says. “I would argue that the court has already gone a considerable way towards adapting the current legislation to the new reality of mass arrivals by boat.” 

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