April 16, 2011

Harper's Flank Attack on the Charter

Twenty-nine years ago, on April 17th, 1982, the Charter of Rights and Freedoms was entrenched as part of Canada’s constitution.  Though not yet thirty, my research suggests the Charter’s glory days may already be gone.  The number of Charter equality cases heard by Canada’s highest courts has been steadily declining over the last decade, with the Supreme Court of Canada and Federal Court of Appeal hearing twenty-four equality cases in 1999, and only eleven in 2009. 

While this decline has several causes, including deep funding cuts to legal aid, the endangered equality case is also a victim of the Harper government’s ongoing flank attack against the Charter.  This assault is aimed not at the Charter’s provisions, which remain both extremely popular and extremely difficult to amend, but rather it targets Canadians’ ability to enforce their Charter rights.

The broad rights protections contained in the Charter must be distinguished from the narrow remedy available to enforce them; a protracted and expensive lawsuit against the behemoth resources of a federal or provincial government.
The bridge between Charter rights and Charter remedies consists of money, expertise and time, each in large quantities.  Taking a Charter case through the labyrinthine judicial system to the Supreme Court of Canada takes years and can cost millions of dollars in lawyers’ bills, expert evidence and court fees.  To say that Charter rights are inaccessible for the average Canadian, who earns about $38,400 annually, is an extraordinary understatement.
Thankfully, groups representing vulnerable Canadians provide a bridge between Charter rights and remedies by fundraising, recruiting legal help and preparing test cases to challenge unconstitutional government action.  These groups assemble resources from private entities, but they also rely on modest government funding.
What do we get in return for our small public investment?  Significant savings in time and money, as well as an excellent safeguard of our constitutional democracy.  Public interest litigation is economical because it aggregates and settles the claims of many individuals through a single court case, saving millions of dollars and thousands of hours for both individuals and governments.
More importantly, Charter litigation audits our government’s compliance with its constitutional obligations, in much the same way as the Auditor General audits the government’s compliance with its financial obligations.  Without the prospect of constitutional challenges, there is little to deter governments from violating individual rights.
Plank by plank, the Harper government has quietly deconstructed the bridge between Charter rights and remedies over the past five years.  The biggest of these planks was the Court Challenges Program, which funded landmark challenges to federal government equality and language rights violations.  In September 2006, shortly after Ian Brodie, an outspoken critic of Charter rights and the CCP, became Harper’s Chief of Staff, the CCP was cancelled on the grounds of “wastefulness” and “administrative inefficiency”.  This despite three parliamentary committee reports attesting to the CCP’s efficiency and effectiveness (two reports are available online here and here).
The budgetary rationale for the CCP’s cancellation is also suspect given that its paltry $2.75 million budget was roughly equal to the interest accumulated in one day on the proposed $35 billion fighter jet program.  More likely, Harper wanted to dismantle the CCP’s conduit to Charter rights enforcement. As Harper said in a leaked videotaped speech to Conservative party faithful, “[i]nstead of subsidizing court challenges…by left-wing fringe groups, we have been bringing in laws to crack down on criminals”.

The CCP is not the only victim of Harper’s flank attack on the Charter.  In 2006, the Department on the Status of Women, historically a significant funding source for women’s equality groups, saw twelve of its sixteen offices shut down, and its mandate changed to exclude the pursuit of “equality” and the funding of advocacy activities.  In recent years, the Harper government has systematically defunded dozens of public interest groups which participated in Charter litigation, including the Native Women’s Association of Canada, Rights & Democracy and the National Association of Women and the Law.

Ultimately, a government which upholds the Charter rights of its citizens has nothing to fear from an occasional audit of its constitutional compliance.  Conversely, one which furiously attacks the means by which its citizens can enforce their human rights raises serious doubts about its commitment to the constitution.

In a call to arms against public interest litigation, Mr. Brodie once wrote, “The Charter is simply a document, and documents are not self-enforcing.  Without groups ready to litigate, the Charter can have little impact.”  The decline in equality cases in the wake of Harper’s dismantling of access to Charter remedies suggests that Mr. Brodie is right.  With few left standing to enforce Charter rights, there will be little to celebrate on April 17th.

April 7, 2011

B.C. Law Week: Free telephone advice from lawyers and more

The B.C. Branch of the Canadian Bar Association is organizing its annual Law Week, which features a number of events from April 6 until April 27 (more than a week, but who's complaining?).  The events are made possible through the volunteer work of hundreds of lawyers from across British Columbia.

Some of the events on the agenda this year include mock trials, a public speaking contest for students, citizenship ceremonies, courthouse tours and a fun run and free public forum in Vancouver.  

The most popular program is undoubtedly the Dial-A-Lawyer event, scheduled for April 16, 2011 from 10:00am to 2:00pm.  Those in need of legal assistance can get 15 minutes of free advice over the phone from volunteer lawyers by calling 1.800.663.1919 or 604.687.3221.

For more information on Law Week events, click here.

April 4, 2011

Why There's No Such Thing As an "Anonymous" Internet Comment

It is accepted wisdom that the internet, like alcohol, lowers inhibitions.  Anonymity allows us to instantly, and irrevocably, comment on anything and anybody we come across online, and forums like Twitter seem to encourage off-the-cuff commentary crammed into 140 characters.

In older times, the onerous effort of publication would require second and third pairs of eyes to pass over the printed word, incorporating plenty of time for sober second thought.  Nowadays, one press of the return key sends our words around the world, with no way to predict their reach or consequences.

For those who rely on anonymity to protect them from the costs of indulging in online defamation, a headache worse than any hangover is in the works, courtesy of the Canadian legal system.  In the last two years,  lower courts in two provinces have issued rulings unmasking anonymous posters so they may be sued for libel.  The courts have accomplished this task in two ways; by issuing Norwich orders and applying civil rules of court.

Norwich Orders
A Norwich Order allows someone who claims to have suffered a legal wrong to obtain a court order requiring a third party to disclose identifying information about the perpetrator of the alleged wrong.  In the case of anonymous posters on blogs, forums and other websites, the victim of the alleged defamation can obtain a Norwich Order requiring the internet service provider (ISP) or the website authors or administrators to provide personal information about anonymous commenters, including their names, email addresses, ISP addresses, etc.

In order to get a Norwich Order, the applicant must satisfy a five-part test:
  • whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
  •  whether the applicant has established a relationship with the third party from whom the information is sought, such that it establishes that the third party is somehow involved in the acts complained of;
  • whether the third party is the only practicable source of the information available;
  • whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure; and
  • whether the interests of justice favour obtaining the disclosure.
In a 2009 Ontario Superior Court of Justice decision, York University v. Bell Canada Enterprises, the court issued a Norwich order to require Bell Canada, an ISP, to provide contact information for customers who anonymously posted allegedly defamatory comments about York University academic staff.

Rules of Court
In some cases, provincial rules of court permit pre-action discovery which allows the party launching the lawsuit to obtain a court order requiring third-parties (for example blog websites or ISPs) to offer up identifying information about anonymous commenters.  This was the case in a recent decision of the Nova Scotia Supreme Court, Mosher v. Coast Publishing Ltd., where Google and the publishers of a local newspaper were ordered to provide personal information about anonymous posters who allegedly defamed the local fire department.

Voluntary Disclosure
A court order is not the only way to unmask anonymous internet commenters.  Unless they are contractually bound not to, website authors and administrators may voluntarily disclose personal or identifying information about an anonymous poster.  They may be especially motivated to do so when faced with a lawsuit.  For example, in a settlement between now defunct Lawbuzz.ca and AdviceScene, "LawBuzz.ca agreed to disclose and provide AdviceScene.com with the Internet Protocol (IP) and email addresses of four lawbuzz.ca anonymous forum members. These users are alleged to have posted defamatory statements directed against AdviceScene.com."

So what is the anonymous commenter to do?  Aside from educating yourself about what qualifies as libel (a good resource is here), I suggest asking yourself whether you would still press 'enter' if your mother, your colleague or even your boss would be sent a copy of your comment?  Imagining you aren't anonymous acknowledges the reality that anonymity may no longer exist on the internet.