Category: Canadian Bills

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The Trans-Pacific Partnership, Bill C-79

(Government link for TPP, now referred to as CPTPP)

(Canada’s Bill C-79, October 2018)

1. Offshoring, Globalization, Free Trade

The other posts on outsourcing/offshoring are available here. It focuses on the hidden costs and trade offs society as a whole has to make. Contrary to what many politicians and figures in the media claim, there are always costs to these kinds of agreement. These include: (a) job losses; (b) wages being driven down; (c) undercutting of local companies; (d) legal action by foreign entities; (e) industries being outsourced; and (f) losses to communities when major employers leave. Don’t believe the lies that these agreements are overwhelmingly beneficial to all.

2. Important Links

(1) ttps://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=9970461&View=5
(2) https://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cptpp-ptpgp/index.aspx?lang=eng
(3) https://www.epi.org/publication/the-china-toll-deepens-growth-in-the-bilateral-trade-deficit-between-2001-and-2017-cost-3-4-million-u-s-jobs-with-losses-in-every-state-and-congressional-district/
(4) https://www.epi.org/publication/webfeatures_snapshots_archive_12102003/
(5) https://www.epi.org/blog/naftas-impact-workers/
(6) https://www.epi.org/publication/webfeatures_snapshots_archive_11052003/

Note: After the US withdrew from the agreement, it was renamed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).

3. Trading Partner Brunei, Stoning Gays

On a side note, Brunei, a small nation governed by Islamic law, announced it would stone gays to death in accordance with religious law. It seems extremely hypocritical for the virtue-signaling Prime Minister Trudeau to have such a trading partner. However, under public pressure, Brunei has apparently backed down from the measure.

4. Portions Of Bill C-79

Causes of action under sections 9 to 13
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8 (1) No person has any cause of action and no proceedings of any kind are to be taken, without the consent of the Attorney General of Canada, to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of sections 9 to 13 or an order made under those sections.

Causes of action under Agreement
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(2) No person has any cause of action and no proceedings of any kind are to be taken, without the consent of the Attorney General of Canada, to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of the Agreement.
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Exception
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(3) Subsection (2) does not apply with respect to causes of action arising out of, and proceedings taken under, Section B of Chapter 9 or Article 11.‍22 of the TPP.

Right away is a red flag. If you are a private party, there may be instances where litigation is required to protect your interests (from unfair trade practices perhaps). However, the wording makes it clear that legal action is not possible here unless the Attorney General signs off on it.

As for the exceptions, Chapter 9, Section B refers to disputes among investors, and encourages the parties to resolve the problems themselves. Article 11.22 outlines dispute mechanisms for financial services.

Payment of expenditures
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12 The Government of Canada is to pay its appropriate share of the aggregate of
(a) any expenditures incurred by or on behalf of the Commission,
(b) the general expenses incurred by the committees, working groups and other bodies established under the Agreement and the remuneration and expenses payable to representatives on the Commission and those committees and to members of those working groups and other bodies, and
(c) the expenses incurred by panels and arbitration tribunals established under the Agreement and the remuneration and expenses payable to the panellists on those panels, to arbitrators and to any experts retained by those panels or arbitration tribunals.

Not only will Canada be forced to pay its “share” for Commission expenses, but will in effect pay to set up an alternative quasi-judicial system. Not only will Canada have to pay for that, but legal and expert expenses, and any judgements awarded against.

Orders — Article 28.‍20 of TPP
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13 (1) The Governor in Council may, for the purpose of suspending benefits in accordance with Article 28.‍20 of the TPP, by order, do any of the following:
(a) suspend rights or privileges granted by Canada to another party to the Agreement or to goods, service suppliers, investors or investments of investors of that party under the Agreement or any federal law;
(b) modify or suspend the application of any federal law, with respect to a party to the Agreement other than Canada or to goods, service suppliers, investors or investments of investors of that party;
(c) extend the application of any federal law to a party to the Agreement other than Canada or to goods, service suppliers, investors or investments of investors of that party; or
(d) take any other measure that the Governor in Council considers necessary.

The Governor in Council can apparently:

  • Suspend rights or privileges
  • modify or suspend application of Federal law
  • extend Federal law to others not previously included
  • Do anything else deemed necessary

Without clarification or at least guidance of the topic, this is extremely vague. Worse, is the Governor in Council can make these changes without requiring consent of the public.

Most of the rest of the Bill goes into detail about how tariffs on many different items will be reduced to zero.

However, like with most free trade agreements, Bill C-79 does not address an important topic: protection of jobs for people at home. That will be addressed later.

5. Sections Of CPTPP Text

While the agreement is very long, let’s look mainly at Article 9, as it has some of the more unsettling information in it. To be blunt, it removes nations’ abilities to protect their people from foreign competition. The downside to free trade.

Article 9.4: National Treatment
1. Each Party shall accord to investors of another Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.
2. Each Party shall accord to covered investments treatment no less favourable than that it accords, in like circumstances, to investments in its territory of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
3. For greater certainty, the treatment to be accorded by a Party under paragraphs 1 and 2 means, with respect to a regional level of government, treatment no less favourable than the most favourable treatment accorded, in like circumstances, by that regional level of government to investors, and to investments of investors, of the Party of which it forms a part.

This is basically the same language used in NAFTA, where no preference could be given to host countries. In short, it doesn’t matter if another party can outbid and outcompete you. Terms just as favourable must be given.

Article 9.5: Most-Favoured-Nation Treatment
1. Each Party shall accord to investors of another Party treatment no less favourable than that it accords, in like circumstances, to investors of any other Party or of any non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.
2. Each Party shall accord to covered investments treatment no less favourable than that it accords, in like circumstances, to investments in its territory of investors of any other Party or of any non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
3. For greater certainty, the treatment referred to in this Article does not encompass international dispute resolution procedures or mechanisms, such as those included in Section B (Investor-State Dispute Settlement).

This is much the same idea. If you treat a non-party (someone outside the agreement) a certain way, then a party within the agreement must get at least the same, if not better, treatment.

A bit misleading is the use of the term investment. Most people think of stocks and bonds as investments. While true, this agreement considers basically anything to be an investment. Here is a quote from the definitions section of Article 9.

investment means every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include:
(a) an enterprise;
(b) shares, stock and other forms of equity participation in an enterprise;
(c) bonds, debentures, other debt instruments and loans;
(d) futures, options and other derivatives;
(e) turnkey, construction, management, production, concession, revenue-sharing and other similar contracts;
(f) intellectual property rights;
(g) licences, authorisations, permits and similar rights conferred pursuant to the Party’s law; and
(h) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens and pledges,

Beyond the traditional sense of investments there is more. Any business itself, business contracts, property, or tangible or intangible items are also considered investments.

And what about countries wanting to nationalise (take public ownership), of their “investments”? Remember, under the definition provided, an investment is pretty much anything.

Article 9.8: Expropriation and Compensation
1. No Party shall expropriate or nationalise a covered investment either directly or indirectly through measures equivalent to expropriation or nationalisation (expropriation), except:
(a) for a public purpose
(b) in a non-discriminatory manner;
(c) on payment of prompt, adequate and effective compensation in accordance with paragraphs 2, 3 and 4; and
(d) in accordance with due process of law.
2. Compensation shall:
(a) be paid without delay;
(b) be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place (the date of expropriation);
(c) not reflect any change in value occurring because the intended expropriation had become known earlier; and
(d) be fully realisable and freely transferable.
3. If the fair market value is denominated in a freely usable currency, the compensation paid shall be no less than the fair market value on the date of expropriation, plus interest at a commercially reasonable rate for that currency, accrued from the date of expropriation until the date of payment.
4. If the fair market value is denominated in a currency that is not freely usable, the compensation paid, converted into the currency of payment at the market rate of exchange prevailing on the date of payment, shall be no less than:
(a) the fair market value on the date of expropriation, converted into a freely usable currency at the market rate of exchange prevailing on that date; plus
(b) interest, at a commercially reasonable rate for that freely usable currency, accrued from the date of expropriation until the date of payment.

This actually does make some sense, as it provides some protections to companies and insures that their property won’t just be converted into the government’s.

However, the wording is such that any legitimate measures a nation might make to go about its business might be construed as “expropriating” or as “nationalising”. The language seems worded poorly on purpose.

And it doesn’t mention that nations have legitimate interests in protecting the jobs of its people, and the local economy. Governments are supposed to protect their people first and foremost.

Article 9.9: Transfers
1. Each Party shall permit all transfers relating to a covered investment to be made freely and without delay into and out of its territory. Such transfers include:
(a) contributions to capital;
(b) profits, dividends, interest, capital gains, royalty payments, management fees, technical assistance fees and other fees;
(c) proceeds from the sale of all or any part of the covered investment or from
the partial or complete liquidation of the covered investment;
(d) payments made under a contract, including a loan agreement;
(e) payments made pursuant to Article 9.7 (Treatment in Case of Armed Conflict or Civil Strife) and Article 9.8 (Expropriation and Compensation); and
(f) payments arising out of a dispute.

Pull the covered investments freely and without delay? Again, almost anything is an investment under this agreement. This actually has the potential to do serious harm. Businesses wishing to leave could pull all of their “investments” and drain the country of its wealth quite quickly.

Article 9.11: Senior Management and Boards of Directors
1. No Party shall require that an enterprise of that Party that is a covered investment appoint to a senior management position a natural person of any particular nationality.
2. A Party may require that a majority of the board of directors, or any committee thereof, of an enterprise of that Party that is a covered investment, be of a particular nationality or resident in the territory of the Party, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment.

This ignores a basic reality. People are loyal first and foremost to their homes and their tribes. Do people want a bunch of foreigners, with in-group preference for their homelands to be controlling so much? Probably not, but free trade deals do not deal with nations, but “economic zones”.

Inserting a condition that it not “materially impair” is vague and open to interpretation. As such, it seems almost worthless.

Article 9 is the most troubling in the agreement. But it is worth addressing one point in Article 28, which covers dispute resolution.

Article 28.4: Choice of Forum
1. If a dispute regarding any matter arises under this Agreement and under another international trade agreement to which the disputing Parties are party, including the WTO Agreement, the complaining Party may select the forum in which to settle the dispute.
2. Once a complaining Party has requested the establishment of, or referred a matter to, a panel or other tribunal under an agreement referred to in paragraph 1, the forum selected shall be used to the exclusion of other fora.

An interesting detail, parties filing complaints can shop around. There is no fixed place to do so. While this sounds fine on the surface, such could be open to gaming the system.

6. Potential For Huge Job Losses

Companies close down and new ones start up. That is normal in a capitalist society. However, free trade deals in general pose a complication. When it becomes more advantageous (ie “cheaper”) to produce a good in another country, there is always a risk. What will stop a company from closing down, laying off all its staff, and relocating in the foreign nation? Legally, nothing, at least in many cases.

The previous pieces on NAFTA addressed some on the downsides to free trade deals. The CPTPP would likely cause the same sorts of issues.

Let’s use the United States as an example. It lost 3.4 million jobs to China between 2001 and 2017 due to “liberalized trade”. Further, another 879,000 jobs have been lost as a direct result of NAFTA.

Beyond the direct job losses, trade deals have the effect of driving down wages. This is especially true for manufacturing jobs, which are traditionally well paid. The reason is leverage. If a company can threaten to relocate in order to pay its (new) workers much less, then current employees can be forced to accept significantly less compensation. One reason tariffs are applied to goods is to counter the vast discrepancies that can exist between nations.

In very lopsided trading arrangements, the benefits are not equal. Again, referring to the US, trade deficits can balloon very quickly. While some surplus or deficit is inevitable, the trading relations cannot continue unless the parties benefit fairly equally. Large trade deficits drain wealth from a nation. This is money being taken out of the country and not being spent on people here.

The CPTPP addresses NONE of these issues. Is this a form of protectionism? Yes, and there’s nothing wrong with that.

7. Conclusions Regarding C-79 & CPTPP

NAFTA was tricky enough, even with just 3 nations, all on one continent. CPTPP has more, and it covers a much larger geographic area. The wealth discrepancies are even larger.

While this is touted as an economy growth tool, the CPTPP doesn’t indicate at all how the citizens will benefit. Under the “National Treatment” provisions, foreigners must be given the same considerations as locals. If it becomes more economical to lay off people and move assets, then it’s done. There can be no protection for locals, which is what a government should be doing.

Free trade agreements tend to create a “race to the bottom”. If it becomes more profitable to ship work and jobs to another country, it is done. Locals will have to accept far less in order to compete, driving down their standards of living.

Communities benefit when there is work and wealth. Exporting it for overall economic growth is cold, and reduces people to mere cogs in a machine.

Difficult to see how average people will benefit from CPTPP.

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Canadian Gov’t Purges “Sunni” & “Shia” From 2019 Terrorism Report (& Bill C-59)

(From the Global News article)

(From the Government Report on terrorism)

1. Important Links

(1) https://globalnews.ca/news/5230488/government-removes-sunni-shia-from-terrorism-threat-report/
(2) https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/pblc-rprt-trrrsm-thrt-cnd-2018/index-en.aspx
(3) https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=9057418

2. View The Disclaimer

April 29, 2019 Update
As per the Minister of Public Safety’s statement on the 2018 Public Report on the Terrorist Threat to Canada, a review of the language used to describe extremism has been undertaken and is ongoing. The Government’s communication of threats must be clear, concise, and cannot be perceived as maligning any groups. As we continue this review, it is apparent that in outlining a threat, it must be clearly linked to an ideology rather than a community. The Government will carefully select terminology that focuses on the intent or ideology. As a first step, the Government has updated terminology used in the 2018 report to eliminate terminology that unintentionally impugns an entire religion. Going forward, the Government of Canada is committed to applying a bias-free approach to the terminology used to describe any threats inspired by ideology or groups.

You can’t make this up. The Feds have purged references to “Sunni” or “Shia” or Islam in general to avoid offending anyone. And let’s be clear, when Goodale talks about “impugning and entire religion”, he is talking about Islam. It’s not Buddhists or Pastafarians committing terrorism everywhere.

3. Table Of Contents

Ministerial Foreword
Executive Summary

  • Part 1: The Current Terrorist Threat Environment
  • The Current Terrorist Threat to Canada
  • Canadian Extremist Travellers

The International Threat Environment
Europe
The Middle East and South/South-East Asia
Africa

Part 2: Threat Methods and Capabilities Observed Globally in 2018

  • Low-Sophistication Tactics, High Impacts
  • Threats to Transportation Infrastructure
  • Chemical and Biological Weapons
  • Terrorist Financing
  • Terrorist Use of the Internet and Cyber Capabilities

Part 3: Canada’s Approach to Countering Terrorism

  • Managing Canadian Extremist Travellers
  • Arrests and Prosecutions in Canada for Committing Terrorism Offences
  • Bill C-59 – An Act Respecting National Security matters & Bill C-21 – An Act to Amend the Customs Act
  • Enhanced Passenger Protection Program
  • Immigration Security Screening
  • The Listing of Terrorist Entities
  • Countering Radicalization to Violence
  • Addressing Online Threats
  • Canada’s International Partnerships and Cooperation

Conclusion

4. Ministerial Foreword

Ministerial Foreword
I am pleased to provide the annual update on the threat to Canada from terrorism and violent extremism – part of our commitment to being open and transparent through a balanced and frank assessment of the current threat environment.
In many ways, this year’s threat update is similar to those of the recent past. The threat posed by those espousing violent interpretations of religious, ideological or political views persists, but has remained stable. The National Terrorism Threat Level – a broad indicator of the terrorist threat to Canada – remains at Medium, unchanged since 2014.
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Canada is known internationally as a welcoming and peaceful nation. But we are also resolute in our determination to reject and combat violent extremism in all forms. Put simply, violence and threats of violence have no place in Canadian society. Stopping and eradicating this is a top priority of the Government.
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Conflicts and the evolving global security environment continue to shape the nature of the terrorist threat to Canada. Those in Canada who are inspired by conflicts abroad may seek to carry out an attack here. Despite the ongoing erosion of Daesh, we have not seen an increase in the number of Canadian Extremist Travellers (CETs) attempting to return. Our top priority in managing CETs also remains the same – to bring them to justice using all resources at our disposal. Canadians expect their Government to keep them safe and to keep pace with evolving threats, tactics and global trends. Our security, intelligence, law enforcement, border and armed forces – to name a few – work around the clock in this regard. They consistently monitor all threats and review their approaches for how best to deal with them. This includes working closely with our friends and allies.
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The global nature of terrorist and extremist threats necessitates close cooperation with international partners. Our partnerships are stronger than ever, including with NATO, the Five Eyes community, G7, the European Union, INTERPOL and others. We remain committed to being a collaborative force of good in the world and recognize that this can only be achieved by working together and leveraging our strengths.
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Domestically, we also continue to build on our multi-layered approach to security. Bill C-59 (An Act Respecting National Security Matters) shaped by public views and concerns on how we as a country approach national security issues, is now closer to final Parliamentary approval and implementation. It brings with it an unprecedented era of transparency and openness and a clear signal of the importance that our departments and agencies have the most up to date mandates, tools and resources at their disposal.
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Despite everyone’s best efforts, there will be times when our collective security is challenged. There will be competing public views on what we as a nation should do. We will continue to take a measured but firm approach – a collaborative approach that unites our strengths – both as a government and as a nation.

A few points in this introduction:
(1) Goodale refers to “violent interpretation” of ideology or religion, while avoiding the elephant in the room: that religions — like Islam — are violent by nature.

(2) Goodale seems content to “bring to justice” terrorists who commit crimes abroad, but doesn’t seem too focused on preventing their re-entry in the first place.

(3) Goodale talks about a “force for good”, as if preventing terrorism were some sort of moralistic issue.

5. Quotes From Executive Summary

Executive Summary
Canada’s terrorist threat environment remains stable. The principal terrorist threat to Canada continues to stem from individuals or groups who are inspired by violent ideologies and terrorist groups, such as Daesh or al-Qaida (AQ). Canada also remains concerned about threats posed by those who harbour right-wing extremist views. The April 2018 van attack in Toronto is a reminder that violent acts driven by extremists’ views are not exclusively-linked to any particular religious, political or cultural ideology. Furthermore, groups, such as Hizballah, and extremists who support violent means to establish an independent state within India also remain of concern because while their attacks in Canada have been extremely limited, some Canadians continue to support these extremist groups, including through financing. At the time of publication, Canada’s National Terrorism Threat Level remains at medium, as set in early October 2014 – meaning a violent act of terrorism could occur.
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Though Daesh territorial holdings in the Syria-Iraq conflict zone continue to decline, Canada has not seen a related influx in the number of Canadian Extremist Travellers (CETs) who have returned to Canada, nor does it expect to. Owing to several factors (such as a lack of valid travel documents, denying boarding to aircraft destined for Canada, potential fear of arrest upon return, their continued commitment to Daesh or other groups, having been captured while in Syria and Iraq, or because they have died), CET numbers abroad remain stable at approximately 190 individuals with a nexus to Canada, and close to 60 who have returned.
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In an effort to project strength and influence to counter its decreasing support and size, Daesh is resorting more frequently to false claims of responsibility for acts of violence, including in Canada. In June 2018, after Faisal Hussain fired on the busy Toronto neighbourhood of Danforth, Daesh quickly claimed responsibility, despite the total absence of any link between the attack and that group or any other terrorist group.
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While globally, terrorist attacks have seen a decline, particularly in the West, ungoverned and permissive environments continue to allow terrorist groups to regroup or develop capabilities. Al-Qaida, Daesh and their affiliates continue to conduct attacks in the Middle East, South-East Asia, South Asia (Afghanistan) and North and West Africa. The Taliban continues to challenge the authority of the Afghanistan government through terrorist acts, while other groups, such as Jamaat Nusrat al-Islam wal-Muslimeen (JNIM), Ansurul Islam, and al-Shabaab remain active in Africa.

6. Other Points To Address

  1. Mentioning the April 2018 van attack seems like going out of the way to say that it’s not only Islam, that anyone can be a terrorist.
  2. And denying the link between Faisal Hussain and Daesh seems an opportunity to make the claim that Islam is (wrongly) getting blamed for everything. But beyond that
  3. All other mentions are Islamic
  • Hizballah is Islamic.
  • Daesh is Islamic.
  • Faisal Hussain is Islamic.
  • “Canadian Extremist Travellers” are Islamic.
  • Al Qaida is Islamic.
  • The Taliban is Islamic.
  • Jamaat Nurat al-Islam wal-Muslimeen is Islamic.
  • Ansurul Islam is Islamic.
  • al-Shabaab is Islamic.

These are all Muslims (except for 1 guy in a van in Toronto).

7. Exerps From Report

The Canadian Charter of Rights and Freedoms guarantees the right to protest, as well as the rights of freedom of conscience and religion, expression, association and peaceful assembly. It is the evolution from hate to serious acts of politically-motivated violence with the intention of intimidating the public, or a segment of the public, in regard to its sense of security, that could be considered a terrorism offence

This should be common sense. However, in context it seems designed to deliberately not draw any link between Islam and terrorism.

Although the majority of recent global terrorist attacks can be attributed to individuals inspired by terrorist groups such as Daesh and AQ, other recent events around the world are bringing attention to the threat of violence from individuals who harbour right-wing extremist views.
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Right-wing extremism (RWE) is traditionally driven by hatred and fear, and includes a range of individuals, groups, often in online communities, that back a wide range of issues and grievances, including, but not limited to: anti-government and anti-law enforcement sentiment, advocacy of white nationalism and racial separation, anti-Semitism and Islamophobia, anti-immigration, male supremacy (misogyny) and homophobia. The threat of violence from any individuals, including those holding extreme right-wing views, may manifest in terrorist activity or other forms of criminal violence. However, while racism, bigotry, and misogyny may undermine the fabric of Canadian society, ultimately they do not usually result in criminal behavior or threats to national security.
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In Canada, individuals who hold extreme right-wing views are active online, leveraging chat forums and online networks to exchange ideas, as opposed to openly promoting violence. These individuals leverage online chats and forums in attempt to create an online culture of fear, hatred and mistrust by exploiting real or imagined concerns.
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Traditionally, in Canada, violence linked to the far-right has been sporadic and opportunistic. However, attacks perpetrated by individuals who hold extreme right-wing views and other lesser-known forms of ideological extremism can occur. A recent example is the April 2018 van attack in Toronto, Ontario, which resulted in the deaths of 10 people and alerted Canada to the dangers of the online Incel movement. It may be difficult to assess, in the short term, to what extent a specific act was ideologically-driven, or comment while investigations are ongoing or cases are before the court.

Interesting. The report (correctly) states the vast majority of terrorism is related to ideologies such as Daesh and Al-Qaida. It then goes on to blame “right wing extremists”. However, the only example cited here (or in the executive summary was the van attack in April 2018.

That one event seems to be as bad as all the Islamic terrorism elsewhere.

Right-wing extremism is not unique to Canada. In fact, some European RWE groups have established chapters in Canada. Likewise, some Canadian RWE groups have far-right connections in Europe.

This disingenuously conflates unrelated groups. This lumps in: those sick of mass migration and illegal immigration; those sick of globalism; and those sick of forced multiculturalism, with actual terrorist organizations.

Furthermore, some individuals in Canada continue to support violent means to establish an independent state within India. These violent activities have fallen since their height during the 1982-1993 period when individuals and groups conducted numerous terrorist attacks. The 1985 Air India bombing, which killed 331 people, remains the deadliest terrorist plot ever launched in Canada. While attacks around the world in support of this movement have declined, support for the extreme ideologies of such groups remains. For example, in Canada, two organizations, Babbar Khalsa International and the International Sikh Youth Federation, have been identified as being associated with terrorism and remain listed terrorist entities under the Criminal Code

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Credit where credit is due. At least Sikh terrorism is being called out as well.

8. Canadian Extremist Travellers

The first objective in dealing with returning extremist travellers is to investigate and mitigate the threat they may pose to Canada and to Canadians and to ensure public safety. If there is sufficient evidence, the Government of Canada will pursue charges, and prosecute them to the full extent of the law. Criminal prosecution is the top priority and the preferred course of action. If there is insufficient evidence for a charge, the Royal Canadian Mounted Police (RCMP) and its law enforcement, security and intelligence partners will continue their investigation, while other tools are leveraged to manage and contain the threat. These tools include: using a terrorism peace bond to seek to have the court place conditions on the individual (including electronic monitoring); active physical surveillance; using the Secure Air Travel Act to prevent further travel; additional border screening; and/or cancelling, refusing or revoking passports. In certain circumstances, the Canadian Security Intelligence Service (CSIS) may also employ threat reduction measures to reduce the threat posed by a returnee.
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Canada’s law enforcement, security and intelligence, and defence departments and agencies continue to monitor and respond to the threat of Canadian extremist travellers through a coordinated, whole-of-government approach. When the Government learns that a CET may be seeking to return, federal departments and agencies come together to tailor an approach to address the threat he/she may pose. Key departments and agencies, including Public Safety Canada, Global Affairs Canada (GAC), the RCMP, CSIS, the Integrated Terrorism Assessment Centre (ITAC), the Department of National Defence and the Canadian Armed Forces (DND/CAF), Canada Border Services Agency (CBSA), Immigration, Refugee and Citizenship Canada (IRCC), Transport Canada (TC) and the Privy Council Office (PCO) work together to assess risks, develop options and manage the return of CETs. The whole-of-government approach enables the collective identification of measures needed to deal with the threat.

Some thoughts:

(1) The safety of the Canadian public seems to be taking a backseat.

(2) Safety measures? How about not letting them back into the country in the first place?

(3) Among those measures: why is “INCARCERATION” not listed?

(4) Prosecution is the preferred method? No, we don’t want them back here, period.

9. Bill C-59 And Young Offenders

A particularly troubling section of Bill C-59, new protections for “Young Offenders”. Is the Government expecting youth to commit or be involved in terrorism? What about adults “identifying” as youth?

Youth Criminal Justice Act

159 Subsection 14(2) of the Youth Criminal Justice Act is replaced by the following:

Orders

(2) A youth justice court has exclusive jurisdiction to make orders against a young person under sections 83.‍3 (recognizance — terrorist activity), 810 (recognizance —fear of injury or damage), 810.‍01 (recognizance — fear of certain offences), 810.‍011 (recognizance — fear of terrorism offence), 810.‍02 (recognizance — fear of forced marriage or marriage under age of 16 years) and 810.‍2 (recognizance — fear of serious personal injury offence) of the Criminal Code and the provisions of this Act apply, with any modifications that the circumstances require. If the young person fails or refuses to enter into a recognizance referred to in any of those sections, the court may impose any one of the sanctions set out in subsection 42(2) (youth sentences) except that, in the case of an order under paragraph 42(2)‍(n) (custody and supervision order), it shall not exceed 30 days.

160 Subsection 20(2) of the Act is replaced by the following:

Orders under section 810 of Criminal Code

(2) Despite subsection 14(2), a justice has jurisdiction to make an order under section 810 (recognizance — fear of injury or damage) of the Criminal Code in respect of a young person. If the young person fails or refuses to enter into a recognizance referred to in that section, the justice shall refer the matter to a youth justice court.

161 (1) Paragraph 25(3)‍(a) of the Act is replaced by the following:

(a) at a hearing at which it will be determined whether to release the young person or detain the young person in custody,
(a.‍1) at a hearing held in relation to an order referred to in subsection 14(2) or 20(2),

(2) The portion of subsection 25(6) of the Act before paragraph (a) is replaced by the following:

Release hearing before justice

(6) When a young person, at a hearing referred to in paragraph (3)‍(a) or (a.‍1) that is held before a justice who is not a youth justice court judge, wishes to obtain counsel but is unable to do so, the justice shall

162 The heading before section 28 of the Act is replaced by the following:

Detention and Release

163 Subsection 29(1) of the Act is replaced by the following:

Detention as social measure prohibited

29 (1) A youth justice court judge or a justice shall not detain a young person in custody as a substitute for appropriate child protection, mental health or other social measures.

164 Subsection 30(1) of the Act is replaced by the following:

Designated place of temporary detention

30 (1) Subject to subsection (7), a young person who is detained in custody in relation to any proceedings against the young person shall be detained in a safe, fair and humane manner in any place of temporary detention that may be designated by the lieutenant governor in council of the province or his or her delegate or in a place within a class of places so designated.

165 The heading before section 33 of the Act is replaced by the following:

Application for Release from or Detention in Custody

166 (1) Paragraph 67(1)‍(c) of the Act is replaced by the following:

(c) the young person is charged with first or second degree murder within the meaning of section 231 of the Criminal Code; or

(2) Paragraph 67(3)‍(c) of the Act is replaced by the following:

(c) the young person is charged with first or second degree murder within the meaning of section 231 of the Criminal Code; or

167 (1) Subsection 119(1) of the Act is amended by adding the following after paragraph (p):

(p.‍1) an employee of a department or agency of the Government of Canada, for the purpose of administering the Canadian Passport Order;

(2) Subsection 119(2) of the Act is amended by adding the following after paragraph (d):

(d.‍1) if an order referred to in subsection 14(2) or 20(2) is made against a young person, the period ending six months after the expiry of the order;

10. last Comments

Despite the overwhelming majority of terrorism being committed by Muslims, in the name of Islam, the Canadian Government tries to downplay that. Actual group names like “Sunni” and “Shia” are stripped from the report, so to not offend anyone.

This gesture of political correctness supposedly is to “not vilify” entire groups. However, it overlooks the elephant in the room, that Islam is directly responsible for most of the terrorism in today’s world. This does no one any good, trying to shade the truth in order to hide the root cause of the majority of terrorism.

It is also clear the Government puts more of a focus on protecting the rights and freedoms of terrorists returning from abroad that it does in protecting Canadians. This must stop.

Posted on

Canada’s Bill C-74, Deferred Prosecution Agreement, and OECD Anti-Bribery Agreement

1. Important Links

(1) http://www.parl.ca/DocumentViewer/en/42-1/bill/C-74/royal-assent
(2) http://archive.is/wip/14Scd
(3) https://www.dentons.com/en/insights/alerts/2018/april/11
(4) http://archive.is/wip/q6KsR
(5) https://www.macleans.ca/news/canada/jody-wilson-raybould-resigns-from-cabinet/
(6) http://archive.is/wip/BxmzN
(7) https://globalnews.ca/news/5012770/jody-wilson-raybould-snc-lavalin-david-lametti/
(8) https://www.youtube.com/watch?v=MkDweZcSO-E
(9) https://nationalpost.com/news/politics/oecd-announces-it-is-monitoring-snc-lavalin-scandal-raising-prospect-canada-has-violated-international-anti-bribery-agreement
(10) http://www.oecd.org/corruption/oecdantibriberyconvention.htm
(11) http://www.oecd.org/daf/anti-bribery/ConvCombatBribery_ENG.pdf

(12) https://lobbycanada.gc.ca/app/secure/ocl/lrs/do/clntSmmry?clientOrgCorpNumber=359826&sMdKy=1562758127214
(13) https://www.elections.ca/WPAPPS/WPF/EN/CCS/ContributionReport?returnS

2. Some Context

This is supposedly a budget bill, but is in fact an omnibus bill (a bloated bill with many unrelated provisions), At the very end is Part 6, Division 20. Presumably it was tacked on as an afterthought.

The “Deferred Prosecution Agreement” (or DPA), is a mechanism which corporations can avoid criminal penalties in Canada. Under Canadian law, a company found guilty in criminal court would be prohibited from bidding on government contracts for a period of 10 years. Obviously, this would hurt the company.

Of course, if it looks like Government influence helped a company avoid criminal penalties, it would stink of corruption, as seems to be the case with Quebec engineering firm SNC Lavalin.

Former Attorney General Jody Wilson-Raybould resigned from her post after being pressured by the Trudeau Government to cut such a deal for SNC Lavalin, and help the company avoid criminal penalties.

If that didn’t stink enough, her successor, David Lametti, claimed he knew nothing, about the deal when he took over. He also took Trudeau’s word that nothing inappropriate happened. It doesn’t help that Lametti is from Montreal (as is SNC Lavalin).

Worse still, is that Lametti seems content with letting SNC Lavalin get its DPA anyway, which is what Wilson-Raybould had been pressured to do.

The Organization for Economic Development & Cooperation (OEDC), would also consider such actions to violate the multi-nation Anti-Bribery Agreement. So the fallout seems to be spreading, not being contained.

3. Content Of Deferred Prosecution Agreement

Summary, Part 6, Division 20
Division 20 of Part 6 amends the Criminal Code to establish a remediation agreement regime. Under this regime, the prosecutor may negotiate a remediation agreement with an organization that is alleged to have committed an offence of an economic character referred to in the schedule to Part XXII.‍1 of that Act and the proceedings related to that offence are stayed if the organization complies with the terms of the agreement.
.
Text Of Bill
PART XXII.‍1 
.
Remediation Agreements
.
Definitions
.
715.‍3 (1) The following definitions apply in this Part.
court means a superior court of criminal jurisdiction but does not include a court of appeal.‍ (tribunal)
offence means any offence listed in the schedule to this Part.‍ (infraction)
organization has the same meaning as in section 2 but does not include a public body, trade union or municipality.‍ (organisation)
remediation agreement means an agreement, between an organization accused of having committed an offence and a prosecutor, to stay any proceedings related to that offence if the organization complies with the terms of the agreement. (accord de réparation)
victim has the same meaning as in section 2 but, with respect to an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, it includes any person outside Canada.‍ (victime)
.
Acting on victim’s behalf
.
(2) For the purposes of this Part, a third party not referred to in section 2.‍2 may also act on a victim’s behalf when authorized to do so by the court, if the victim requests it or the prosecutor deems it appropriate.
.
Purpose
.
715.‍31 The purpose of this Part is to establish a remediation agreement regime that is applicable to organizations alleged to have committed an offence and that has the following objectives:
(a) to denounce an organization’s wrongdoing and the harm that the wrongdoing has caused to victims or to the community;
(b) to hold the organization accountable for its wrongdoing through effective, proportionate and dissuasive penalties;
(c) to contribute to respect for the law by imposing an obligation on the organization to put in place corrective measures and promote a compliance culture;
(d) to encourage voluntary disclosure of the wrongdoing;
(e) to provide reparations for harm done to victims or to the community; and
(f) to reduce the negative consequences of the wrongdoing for persons — employees, customers, pensioners and others — who did not engage in the wrongdoing, while holding responsible those individuals who did engage in that wrongdoing.
.
Conditions for remediation agreement
.
715.‍32 (1) The prosecutor may enter into negotiations for a remediation agreement with an organization alleged to have committed an offence if the following conditions are met:
(a) the prosecutor is of the opinion that there is a reasonable prospect of conviction with respect to the offence;
(b) the prosecutor is of the opinion that the act or omission that forms the basis of the offence did not cause and was not likely to have caused serious bodily harm or death, or injury to national defence or national security, and was not committed for the benefit of, at the direction of, or in association with, a criminal organization or terrorist group;
(c) the prosecutor is of the opinion that negotiating the agreement is in the public interest and appropriate in the circumstances; and
(d) the Attorney General has consented to the negotiation of the agreement.
.
Factors to consider
.
(2) For the purposes of paragraph (1)‍(c), the prosecutor must consider the following factors:
(a) the circumstances in which the act or omission that forms the basis of the offence was brought to the attention of investigative authorities;
(b) the nature and gravity of the act or omission and its impact on any victim;
(c) the degree of involvement of senior officers of the organization in the act or omission;
(d) whether the organization has taken disciplinary action, including termination of employment, against any person who was involved in the act or omission;
(e) whether the organization has made reparations or taken other measures to remedy the harm caused by the act or omission and to prevent the commission of similar acts or omissions;
(f) whether the organization has identified or expressed a willingness to identify any person involved in wrongdoing related to the act or omission;
(g) whether the organization — or any of its representatives — was convicted of an offence or sanctioned by a regulatory body, or whether it entered into a previous remediation agreement or other settlement, in Canada or elsewhere, for similar acts or omissions;
(h) whether the organization — or any of its representatives — is alleged to have committed any other offences, including those not listed in the schedule to this Part; and
(i) any other factor that the prosecutor considers relevant.
.
Factors not to consider
.
(3) Despite paragraph (2)‍(i), if the organization is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, the prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved.
.
Notice to organization — invitation to negotiate
.
715.‍33 (1) If the prosecutor wishes to negotiate a remediation agreement, they must give the organization written notice of the offer to enter into negotiations and the notice must include
(a) a summary description of the offence to which the agreement would apply;
(b) an indication of the voluntary nature of the negotiation process;
(c) an indication of the legal effects of the agreement;
(d) an indication that, by agreeing to the terms of this notice, the organization explicitly waives the inclusion of the negotiation period and the period during which the agreement is in force in any assessment of the reasonableness of the delay between the day on which the charge is laid and the end of trial;
(e) an indication that negotiations must be carried out in good faith and that the organization must provide all information requested by the prosecutor that the organization is aware of or can obtain through reasonable efforts, including information enabling the identification of any person involved in the act or omission that forms the basis of the offence or any wrongdoing related to that act or omission;
(f) an indication of how the information disclosed by the organization during the negotiations may be used, subject to subsection (2);
(g) a warning that knowingly making false or misleading statements or knowingly providing false or misleading information during the negotiations may lead to the recommencement of proceedings or prosecution for obstruction of justice;
(h) an indication that either party may withdraw from the negotiations by providing written notice to the other party;
(i) an indication that reasonable efforts must be made by both parties to identify any victim as soon as practicable; and
(j) a deadline to accept the offer to negotiate according to the terms of the notice.
.
Admissions not admissible in evidence
.
(2) No admission, confession or statement accepting responsibility for a given act or omission made by the organization during the negotiations is admissible in evidence against that organization in any civil or criminal proceedings related to that act or omission, except those contained in the statement of facts or admission of responsibility referred to in paragraphs 715.‍34(1)‍(a) and (b), if the parties reach an agreement and it is approved by the court.
.
Mandatory contents of agreement
.
715.‍34 (1) A remediation agreement must include
(a) a statement of facts related to the offence that the organization is alleged to have committed and an undertaking by the organization not to make or condone any public statement that contradicts those facts;
(b) the organization’s admission of responsibility for the act or omission that forms the basis of the offence;
(c) an indication of the obligation for the organization to provide any other information that will assist in identifying any person involved in the act or omission, or any wrongdoing related to that act or omission, that the organization becomes aware of, or can obtain through reasonable efforts, after the agreement has been entered into;
(d) an indication of the obligation for the organization to cooperate in any investigation, prosecution or other proceeding in Canada — or elsewhere if the prosecutor considers it appropriate — resulting from the act or omission, including by providing information or testimony;
(e) with respect to any property, benefit or advantage identified in the agreement that was obtained or derived directly or indirectly from the act or omission, an obligation for the organization to
(i) forfeit it to Her Majesty in right of Canada, to be disposed of in accordance with paragraph 4(1)‍(b.‍2) of the Seized Property Management Act,
(ii) forfeit it to Her Majesty in right of a province, to be disposed of as the Attorney General directs, or
(iii) otherwise deal with it, as the prosecutor directs;
(f) an indication of the obligation for the organization to pay a penalty to the Receiver General or to the treasurer of a province, as the case may be, for each offence to which the agreement applies, the amount to be paid and any other terms respecting payment;
(g) an indication of any reparations, including restitution consistent with paragraph 738(1)‍(a) or (b), that the organization is required to make to a victim or a statement by the prosecutor of the reasons why reparations to a victim are not appropriate in the circumstances and an indication of any measure required in lieu of reparations to a victim;
(h) an indication of the obligation for the organization to pay a victim surcharge for each offence to which the agreement applies, other than an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, the amount to be paid and any other terms respecting payment;
(i) an indication of the obligation for the organization to report to the prosecutor on the implementation of the agreement and an indication of the manner in which the report is to be made and any other terms respecting reporting;
(j) an indication of the legal effects of the agreement;
(k) an acknowledgement by the organization that the agreement has been made in good faith and that the information it has provided during the negotiation is accurate and complete and a commitment that it will continue to provide accurate and complete information while the agreement is in force;
(l) an indication of the use that can be made of information obtained as a result of the agreement, subject to subsection (2);
(m) a warning that the breach of any term of the agreement may lead to an application by the prosecutor for termination of the agreement and a recommencement of proceedings;
(n) an indication of the obligation for the organization not to deduct, for income tax purposes, the costs of any reparations or other measures referred to in paragraph (g) or any other costs incurred to fulfil the terms of the agreement;
(o) a notice of the prosecutor’s right to vary or terminate the agreement with the approval of the court; and
(p) an indication of the deadline by which the organization must meet the terms of the agreement.

Admissions not admissible in evidence
.
(2) No admission, confession or statement accepting responsibility for a given act or omission made by the organization as a result of the agreement is admissible in evidence against that organization in any civil or criminal proceedings related to that act or omission, except those contained in the statement of facts and admission of responsibility referred to in paragraphs (1)‍(a) and (b), if the agreement is approved by the court.

Optional content of agreement
.
(3) A remediation agreement may include, among other things,
(a) an indication of the obligation for the organization to establish, implement or enhance compliance measures to address any deficiencies in the organization’s policies, standards or procedures — including those related to internal control procedures and employee training — that may have allowed the act or omission;
(b) an indication of the obligation for the organization to reimburse the prosecutor for any costs identified in the agreement that are related to its administration and that have or will be incurred by the prosecutor; and
(c) an indication of the fact that an independent monitor has been appointed, as selected with the prosecutor’s approval, to verify and report to the prosecutor on the organization’s compliance with the obligation referred to in paragraph (a), or any other obligation in the agreement identified by the prosecutor, as well as an indication of the organization’s obligations with respect to that monitor, including the obligations to cooperate with the monitor and pay the monitor’s costs.

Oh, it gets much worse.

4. Anti-Corruption Agreements

Here is the CONVENTION itself:

“HAVE AGREED AS FOLLOWS:
.
Article 1
The Offence of Bribery of Foreign Public Officials
.
1. Each Party shall take such measures as may be necessary to establish that it is a criminal offence under its law for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business.
.
2. Each Party shall take any measures necessary to establish that complicity in, including incitement, aiding and abetting, or authorisation of an act of bribery of a foreign public official shall be a criminal offence. Attempt and conspiracy to bribe a foreign public official shall be criminal offences to the same extent as attempt and conspiracy to bribe a public official of that Party.
.
3. The offences set out in paragraphs 1 and 2 above are hereinafter referred to as “bribery of a foreign public official”.

The document is quite long, and a read it recommended.

5. Liberal Donor Bruce Hartley Is Lavalin Lobbyist

How did this DPA come to be. Perhaps one name can explain it: Bruce Hartley.

Hartley has been a long time Liberal donor. He now is a registered lobbyist with SNC-Lavalin. One of his specific lobbying targets was the creation of the DPA.

(Hartley has made 124+ donations to the Liberal Party and its members since 2005).

(Hartley is registered as a Lavalin lobbyist.)

(Hartley’s job includes lobbying for DPA)

6. Bottom Line

1/ The Federal Government added this “Deferred Prosecution Agreement” into the Criminal Code to allow companies to avoid criminal penalties (and the bulk of financial penalties), under this arrangement. This is stuffed into the end of a completely unrelated budget bill.
2/ Attorney General Jody Wilson-Raybould resigned after she alleges being pressured to cut a deal with Quebec engineering firm, SNC Lavalin
3/ Federal Government denies this, claims it was a “misunderstanding”
4/ New AG says he sees nothing wrong, and may still give DPA to SNC Lavalin.
5/ Public interest and outrage in story is growing.
6/ This DPA appears to violate international anti-bribery agreement.
7/ Liberal donor Bruce Hartley is now an SNC-Lavalin lobbyist, and is tasked with pushing for the creation of the DPA.

Posted on

Canada’s Bill C-71: Backdoor Gun Registry

(Bill C-71, to restore the long gun registry)

One thing to point out right away: this bill is much more manageable to read than Bill C-69

CLICK HERE, for the full text of Bill C-71.

CLICK HERE, for the 1995 Firearms Act.
CLICK HERE, for Bill C-19, Ending The Long Gun Registry Act
CLICK HERE, for the 2015 Economic Action Plan Act

Here are some noteworthy changes

5(2) of Firearms Act
ORIGINAL

(c) has a history of behaviour that includes violence or threatened or attempted violence on the part of the person against any person.

REPLACEMENT
(2) Subsection 5(2) of the Act is amended by striking out “or” at the end of paragraph (b) and by replacing paragraph (c) with the following:

(c) has a history of behaviour that includes violence or threatened or attempted violence or threatening conduct on the part of the person against any person;
(d) is or was previously prohibited by an order — made in the interests of the safety and security of any person — from communicating with an identified person or from being at a specified place or within a specified distance of that place, and presently poses a threat or risk to the safety and security of any person;
(e) in respect of an offence in the commission of which violence was used, threatened or attempted against the person’s intimate partner or former intim­ate partner, was previously prohibited by a prohibition order from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition; or
(f) for any other reason, poses a risk of harm to any person.

For greater certainty

(2.‍1) For greater certainty, for the purposes of paragraph (2)‍(c), threatened violence and threatening conduct include threats or conduct communicated by the person to a person by means of the Internet or other digital network

19(1.1) and (2) of Firearms Act
ORIGINAL

Target practice or competition

(1.1) In the case of an authorization to transport issued for a reason referred to in paragraph (1)(a) within the province where the holder of the authorization resides, the specified places must include all shooting clubs and shooting ranges that are approved under section 29 and that are located in that province.
Marginal note:

Exception for prohibited firearms other than prohibited handguns
(2) Despite subsection (1), an individual must not be authorized to transport a prohibited firearm, other than a handgun referred to in subsection 12(6.1), between specified places except for the purposes referred to in paragraph (1)(b)

REPLACEMENT

4 (1) Subsections 19(1.‍1) and (2) of the Act are replaced by the following:

Target practice or competition

(1.‍1) In the case of an authorization to transport issued for a reason referred to in paragraph (1)‍(a) within the province where the holder of the authorization resides, the specified places must — except in the case of an authorization that is issued for a prohibited firearm referred to in subsection 12(9) — include all shooting clubs and shooting ranges that are approved under section 29 and that are located in that province.

Exception for prohibited firearms other than prohibited handguns

(2) Despite subsection (1), an individual must not be authorized to transport a prohibited firearm — other than a handgun referred to in subsection 12(6.‍1) or a prohibited firearm referred to in subsection 12(9) — between specified places except for the purposes referred to in paragraph (1)‍(b).

Section 23 of Firearms Act
ORIGINAL

Authorization to transfer non-restricted firearms
23 A person may transfer a non-restricted firearm if, at the time of the transfer,
(a) the transferee holds a licence authorizing the transferee to acquire and possess that kind of firearm; and
(b) the transferor has no reason to believe that the transferee is not authorized to acquire and possess that kind of firearm.
1995, c. 39, s. 23; 2003, c. 8, s. 17; 2012, c. 6, s. 11; 2015, c. 27, s. 7.
Previous Version
Marginal note:

Voluntary request to Registrar
23.1 (1) A transferor referred to in section 23 may request that the Registrar inform the transferor as to whether the transferee, at the time of the transfer, holds and is still eligible to hold the licence referred to in paragraph 23(a), and if such a request is made, the Registrar or his or her delegate, or any other person that the federal Minister may designate, shall so inform the transferor.
Marginal note:

No record of request
(2) Despite sections 12 and 13 of the Library and Archives of Canada Act and subsections 6(1) and (3) of the Privacy Act, neither the Registrar or his or her delegate nor a designated person shall retain any record of a request made under subsection (1).

REPLACEMENT

5 Sections 23 and 23.‍1 of the Act are replaced by the following:

Authorization to transfer non-restricted firearms

23 (1) A person may transfer one or more non-restricted firearms if, at the time of the transfer,
(a) the transferee holds a licence authorizing the transferee to acquire and possess a non-restricted firearm;
(b) the Registrar has, at the transferor’s request, issued a reference number for the transfer and provided it to the transferor; and
(c) the reference number is still valid.

Information — transferee’s licence

(2) The transferee shall provide to the transferor the prescribed information that relates to the transferee’s licence, for the purpose of enabling the transferor to request that the Registrar issue a reference number for the transfer.

Reference number

(3) The Registrar shall issue a reference number if he or she is satisfied that the transferee holds and is still eligible to hold a licence authorizing them to acquire and possess a non-restricted firearm.

Period of validity

(4) A reference number is valid for the prescribed period.

Registrar not satisfied

(5) If the Registrar is not satisfied as set out in subsection (3), he or she may so inform the transferor.

Ending the Long Gun Registry Act of 2012
ORIGINAL

Non-application
(3) Sections 12 and 13 of the Library and Archives of Canada Act and subsections 6(1) and (3) of the Privacy Act do not apply with respect to the destruction of the records and copies referred to in subsections (1) and (2).

(4) If section 29 of the other Act comes into force before section 17 of this Act, then that section 17 is replaced by the following:
17. Paragraph 38(1)(a) of the Act is replaced by the following:
(a) holds a licence to possess that kind of firearm and, in the case of a prohibited firearm or a restricted firearm, a registration certificate and an authorization to transport the firearm; and

(5) If section 17 of this Act comes into force before section 29 of the other Act, then, on the day on which that section 29 comes into force, paragraph 38(1)(a) of the Firearms Act is replaced by the following:
(a) holds a licence to possess that kind of firearm and, in the case of a prohibited firearm or a restricted firearm, a registration certificate and an authorization to transport the firearm; and

(6) If section 29 of the other Act comes into force on the same day as section 17 of this Act, then that section 17 is deemed to have come into force before that section 29 and subsection (5) applies as a consequence.

(7) On the first day on which both section 30 of the other Act and section 17 of this Act are in force, paragraphs 40(1)(b) and (c) of the Firearms Act are replaced by the following:
(b) the individual produces a licence authorizing him or her to possess that kind of firearm;
(c) in the case of a prohibited firearm or a restricted firearm, the individual holds an authorization to transport it and satisfies the customs officer that the individual holds a registration certificate for the firearm; and

REPLACEMENT

Ending the Long-gun Registry Act

Amendments to the Act

2015, c. 36, s. 230

23 (1) Subsection 29(3) of the Ending the Long-gun Registry Act is deemed never to have been amended by section 230 of the Economic Action Plan 2015 Act, No. 1.

2015, c. 36, s. 230

(2) Subsections 29(4) to (7) of the Ending the Long-gun Registry Act are deemed never to have come into force and are repealed.

2015, c. 36, s. 231

24 Section 30 of the Ending the Long-gun Registry Act is deemed never to have come into force and is repealed.

Biggest takeaway here is that Bill C-71 is an effort to resurrect the Long Gun Registry

While there are some virtue signals about safety, the main objective is clearly undoing the 2011-2012 legislation.

Posted on

Canada’s Bill C-69: Impact Assessment, Energy Regulation, Navigation Protection Acts

(Canada’s Bill C-69)

(Apparently, science is “Colonial”, in S. Africa anyway)

(Science is so racist, apparently)

(One of the few times “White” science is good)

CLICK HERE, for the bill in its latest form, which is currently undergoing 3rd reading in House of Commons.

CLICK HERE, for 2012 version of Environmental Assessment Act.
CLICK HERE, for the 1985 Navigation Protection Act.
CLICK HERE, for Energy Regulator Handbook.

SUMMARY HERE
If nothing else, take these points away:

-Regulators have wide discretion to shut everything down
-Regulators have wide discretion to hand out fines and penalties
-Gender based analysis is lens which projects to be viewed though
-Indigenous rights ensure that any project can be stopped almost at will
-Advisory Board must include (a) FN; (b) Inuit; (c) Metis
-“White Science” and “Indigenous Knowledge” to both be considered
-“Indigenous Knowledge” is confidential, unless common knowledge
-“Indigenous Knowledge” given to regulator is private unless public interest to disclose.
-“Indigenous Knowledge” is some secret sauce that can shut down projects, but must be kept confidential to protect …. something.
-Special Tribunal can be set up for compensation in pipeline spills

THIS CAN BE CHALLENGED IN FEDERAL COURT

Federal Court

Appeal to Federal Court

138 The Minister or any person or entity to whom an order, as confirmed or varied by a review officer, is directed may, by filing a written notice of appeal within 30 days after the day on which the written reasons are provided by the review officer under section 135, appeal to the Federal Court from the review officer’s decision.

Order not suspended

139 The filing of a notice of appeal under section 138 does not suspend the operation of an order, as confirmed or varied by a review officer.

Injunctions

Court’s power

140 (1) If, on the Minister’s application, it appears to a court of competent jurisdiction that a person or entity has done, is about to do or is likely to do any act constituting or directed toward the commission of an offence under this Act, the court may issue an injunction ordering the person or entity who is named in the application to
(a) refrain from doing an act that, in the court’s opinion, may constitute or be directed toward the commission of the offence; or
(b) do an act that, in the court’s opinion, may prevent the commission of the offence.

Notice

(2) No injunction is to be issued under subsection (1) unless 48 hours’ notice is served on the party or parties who are named in the application or unless the urgency of the situation is such that service of notice would not be in the public interest.

*****************************************

Judicial Review

Grounds

170 Subject to section 168, every decision of a Tribunal is final and conclusive and is not to be questioned or reviewed in any court except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.‍1(4)‍(a), (b) or (e) of that Act.

Good to know…. this may come in handy later.

Also, there is a section on discrimination. Of course, with this government, no legislation would be complete without it. However, the terms here seem to suggest more of a “price fixing” nature than actual discrimination. Read for yourself.

Discrimination

No unjust discrimination

235 A company must not make any unjust discrimination in tolls, service or facilities against any person or locality.

Burden of proof

236 If it is shown that a company makes any discrimination in tolls, service or facilities against any person or locality, the burden of proving that the discrimination is not unjust lies on the company.

Prohibition

237 (1) A company or shipper, or an officer, employee or agent or mandatary of a company or shipper, is guilty of an offence punishable on summary conviction if they
(a) offer, grant, give, solicit, accept or receive a rebate, concession or discrimination that allows a person to obtain transmission of hydrocarbons or any other commodity by a company at a rate less than that named in the tariffs then in effect; or
(b) knowingly are party or privy to a false billing, false classification, false report or other device that has the effect set out in paragraph (a).

Due diligence

(2) A person is not to be found guilty of an offence under paragraph (1)‍(a) if they establish that they exercised due diligence to prevent the commission of the offence.

Prosecution

(3) No prosecution may be instituted for an offence under this section without leave of the Commission.

Introduction To The Bill
Preamble
Whereas the Government of Canada is committed to implementing an impact assessment and regulatory system that Canadians trust and that provides safeguards to protect the environment and the health and safety of Canadians;

Whereas the Government of Canada is committed to enhancing Canada’s global competitiveness by building a system that enables decisions to be made in a predictable and timely manner, providing certainty to investors and stakeholders, driving innovation and enabling the carrying out of sound projects that create jobs for Canadians;

Whereas the Government of Canada is committed to achieving reconciliation with First Nations, the Métis and the Inuit through renewed nation-to-nation, government-to-government and Inuit-Crown relationships based on recognition of rights, respect, co-operation and partnership;

Whereas the Government of Canada is committed to using transparent processes that are built on early engagement and inclusive participation and under which the best available scientific information and data and the Indigenous knowledge of the Indigen­ous peoples of Canada are taken into account in decision-making;

And whereas the Government of Canada is committed to assessing how groups of women, men and gender-diverse people may experience policies, programs and projects and to taking actions that contribute to an inclusive and democratic society and allow all Canadians to participate fully in all spheres of their lives;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1/ Safeguards to protect the environment, and H&S of Canadians? Okay, few could disagree with that.
2/ Promoting competitiveness sounds great, if that is what the Bill does.
3/ Committed to reconciliation? Okay, here is where we start to have issues. Will development be blocked or rerouted in the name of “reconciliation”? Or will there be extra “taxes” attached?
4/ Inclusive participation? Isn’t that redundant? And best scientific information and data “and” the Indigenous knowledge of the Indigenous peoples are taken into account?

*** So is there Indigenous knowledge and non-Indigenous science and data? See the above video on “decolonizing science”

5/ Committed to assessing how groups of women, men and gender-diverse people may experience things? Okay, back to the gender obsession. And is “gender diverse” a reference to trannies, or just mixed men/women?
6/ I thought this was a science based approach. Now it’s being infiltrated by (a) Indigenous knowledge and (b) Gender politics.

Okay, now we get to “another” preamble,

PART 1 

Impact Assessment Act

Enactment of Act

Enactment

1 The Impact Assessment Act, whose Schedules 1 to 4 are set out in the schedule to this Act, is enacted as follows:

An Act respecting a federal process for impact assessments and the prevention of significant adverse environmental effects

Preamble
Whereas the Government of Canada is committed to fostering sustainability;

Whereas the Government of Canada recognizes that impact assessments provide an effective means of integrating scientific information and Indigenous knowledge into decision-making processes related to designated projects;

Whereas the Government of Canada recognizes the importance of public participation in the impact assessment process, including the planning phase, and is committed to providing Canadians with the opportunity to participate in that process and with the information they need in order to be able to participate in a meaningful way;

Whereas the Government of Canada recognizes that the public should have access to the reasons on which decisions related to impact assessments are based;

Whereas the Government of Canada is committed, in the course of exercising its powers and performing its duties and functions in relation to impact, regional and strategic assessments, to ensuring respect for the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982, and to fostering reconciliation and working in partnership with them;

Whereas the Government of Canada is committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples;

Whereas the Government of Canada recognizes the importance of cooperating with jurisdictions that have powers, duties and functions in relation to the assessment of the effects of designated projects in order that impact assessments may be conducted more efficiently;

Whereas the Government of Canada recognizes that a transparent, efficient and timely decision-making process contributes to a positive investment climate in Canada;

Whereas the Government of Canada recognizes that impact assessment contributes to Canada’s ability to meet its environmental obligations and its commitments in respect of climate change;

Whereas the Government of Canada recognizes the importance of encouraging innovative approaches and technologies to reduce adverse changes to the environment and to health, social or economic conditions;

And whereas the Government of Canada recognizes the importance of regional assessments in understanding the effects of existing or future physical activities and the importance of strategic assessments in assessing federal policies, plans or programs that are relevant to conducting impact assessments;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1/ The Government of Canada is committed to sustainability? Okay, sounds nice, but that can get very expensive. See Agenda 21, signed in 1992 by Brian Mulroney, and Agenda 2030, signed in 2015 by Stephen Harper. Interestingly, Mulroney and Harper both “identify” as Conservatives.
2/ Integrating scientific information and Indigenous knowledge? Again, is there a separate set of scientific principles depending on skin colour or ethnicity? Science is so racist.
3/ Committed to public participation, yet this is an omnibus bill rammed though parliament
4/ Fostering reconciliation and inclusion? So will protests be shutting down any projects? Will “payments” be demanded?
5/ You support UN Declaration on Indigenous Rights? Okay, that agreement means that virtually any work can be shut down at any time, for any reason.
6/ Meet it’s international efforts regarding climate change? Silly me, thinking Paris Accord was “non-binding”

Note: There is a preamble for the Energy Regulator Act, and it’s wording is almost identical.

Rights of Indigenous peoples of Canada

3 For greater certainty, nothing in this Act is to be construed as abrogating or derogating from the protection provided for the rights of the Indigenous peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.

Again, any project can be shut down on a whim.

Purpose

Purpose of Act

6 The purpose of this Act is to regulate certain energy matters within Parliament’s jurisdiction and, in particular,

(a) to ensure that pipelines and power lines as well as facilities, equipment or systems related to offshore renewable energy projects, are constructed, operated and abandoned in a manner that is safe, secure and efficient and that protects people, property and the environment;
(b) to ensure that the exploration for and exploitation of oil and gas, as defined in section 2 of the Canada Oil and Gas Operations Act, is carried out in a manner that is safe and secure and that protects people, property and the environment;
(c) to regulate trade in energy products; and
(d) to ensure that regulatory hearings and decision-making processes related to those energy matters are fair, inclusive, transparent and efficient.

(a) No problem with this.
(b) No problem with this.
(c) Stop. Government shouldn’t be regulating trade. It just makes things more expensive.
(d) Make decisions that are inclusive? Getting back into the gender politics again?

Mandate

11 The Regulator’s mandate includes

(a) making transparent decisions, orders and recommendations with respect to pipelines, power lines, offshore renewable energy projects and abandoned pipelines;
(b) overseeing the construction, operation and abandonment of pipelines, interprovincial power lines and international power lines and overseeing work and activities authorized under Part 5 as well as abandoned facilities;

(c) making orders with respect to traffic, tolls and tariffs and overseeing matters relating to traffic, tolls and tariffs;
(d) making decisions and orders and giving directions under Part 8 with respect to oil and gas interests, production and conservation;

(e) advising and reporting on energy matters;
(f) providing alternative dispute resolution processes;

(g) exercising powers and performing duties and functions that are conferred on the Regulator under any other Act of Parliament; and
(h) exercising its powers and performing its duties and functions in a manner that respects the Government of Canada’s commitments with respect to the rights of the Indigenous peoples of Canada.

On the surface, this doesn’t look objectionable. However, it is unclear just how much authority the Energy Regulator will have to make unilateral decisions.

Board of Directors

Establishment and composition

14 (1) The Regulator is to have a board of directors consisting of at least five but not more than nine directors, including a Chairperson and a Vice-Chairperson.

Indigenous representation

(2) At least one of the directors must be an Indigenous person.

Of course, it wouldn’t be a Liberal bill without a racial or gender quota.

Matters of law and fact

(3) For the purposes of this Act, the Commission has full jurisdiction to hear and determine all matters, whether of law or of fact.

Power to act on own initiative

33 The Commission may on its own initiative inquire into, hear and determine any matter that under this Act it may inquire into, hear and determine.

Orders and prohibitions

34 The Commission may
(a) order any person to do, immediately or within or at any specified time and in any specified manner, anything that the person is or may be required to do under this Act, under a condition of a document of authorization, or under any order made or direction given by the Commission or a designated officer under this Act; and

(b) prohibit the doing or continuing of anything that is contrary to this Act, to a condition of the document of authorization or to the order or direction.

Okay, now we are getting into some actual enforcement. However it is unclear what all these added levels of bureaucracy will actually accomplish. It just seems to slow things down.

Wasn’t part of this bill to ensure speedy startup and process?

Exercise of Commission’s Powers and Performance of Its Duties and Functions by Designated Officers

Regulations

54 The Governor in Council may make regulations that specify
(a) powers, duties and functions of the Commission that are technical or administrative in nature and may be exercised or performed by designated officers;
(b) any circumstances in which those powers are to be exercised and those duties and functions are to be performed only by designated officers; and
(c) the procedures and practices that apply to the exercise of those powers and the performance of those duties and functions by designated officers.

Good in a way, delegate matters the powers at hand don’t understand to underlings who would know more.
Also a bit concerning. There is no requirement to actually have any education, experience or training in the industry. Wouldn’t this invite mistake from incompetent, politically driven leaders?

Rights and Interests of the Indigenous Peoples of Canada

Duty to consider — Commission

56 (1) When making a decision, an order or a recommendation under this Act, the Commission must consider any adverse effects that the decision, order or recommendation may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.

Duty to consider — designated officers

(2) When making a decision or an order under this Act, a designated officer must consider any adverse effects that the decision or order may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.

Advisory committee

57 (1) The Regulator must establish an advisory committee for the purpose of enhancing the involvement, under Part 2, of the Indigenous peoples of Canada and Indigenous organizations in respect of pipelines, power lines and offshore renewable energy projects as well as abandoned pipelines.

Membership

(2) The membership of the advisory committee must include at least
(a) one person recommended by an Indigenous organization that represents the interests of First Nations;
(b) one person recommended by an Indigenous organization that represents the interests of the Inuit; and
(c) one person recommended by an Indigenous organization that represents the interests of the Métis.

Confidentiality — Indigenous knowledge

58 (1) Any Indigenous knowledge that is provided in confidence to the Regulator under this Act or any other Act of Parliament that confers powers, duties or functions on the Regulator is confidential and must not knowingly be, or be permitted to be, disclosed without written consent.

Exception

(2) Despite subsection (1), the Indigenous knowledge referred to in that subsection may be disclosed if
(a) it is publicly available;
(b) the disclosure is necessary for the purposes of procedural fairness and natural justice or for use in legal proceedings; or
(c) the disclosure is authorized in the circumstances set out in the regulations made under section 59.

Consultation

(2.‍1) Before disclosing Indigenous knowledge under paragraph 2(b) for the purposes of procedural fairness and natural justice, the Regulator must consult the person or entity who provided the Indigenous knowledge and the person or entity to whom it is proposed to be disclosed about the scope of the proposed disclosure and potential conditions under subsection (3).

Further disclosure

(3) The Regulator may, having regard to the consultation referred to in subsection (2.‍1), impose conditions with respect to the disclosure of Indigenous knowledge by any person or entity to whom it is disclosed under paragraph (2)‍(b) for the purposes of procedural fairness and natural justice.

Duty to comply

(4) The person or entity referred to in subsection (3) must comply with any conditions imposed by the Regulator under that subsection.

Protection from civil proceeding or prosecution

(5) Despite any other Act of Parliament, no civil or criminal proceedings lie against the Regulator or the Minister — or any person acting on behalf of, or under the direction of, either of them — and no proceedings lie against the Crown or the Regulator, for the disclosure in good faith of any Indigenous knowledge under this Act or any other Act of Parliament that confers powers, duties or functions on the Regulator or for any consequences that flow from that disclosure.

Regulations

59 The Governor in Council may make regulations prescribing the circumstances in which Indigenous knowledge that is provided to the Regulator under this Act in confidence may be disclosed without written consent.
Once again, this seems designed to fail.

1/ If any indigenous person or group can shut down an entire project, or at least delay it for years, development will come to a standstill.
2/ Duty to consult: Again sounds nice, but written in such a way as to ensure nothing gets through.
3/ Committee must include:
(a) First Nations
(b) Inuit
(c) Metis
So not only is there “one” representative, but there are to be “three” each from different groups.
4/ Indigenous Knowledge provided to regulator is confidential.
What? So it cannot be challenged if we don’t know what it is.
5/ Before “disclosing Indigenous Knowledge”, the Regulator must discuss with person who provided it.
6/ No punishment for disclosing “Indigenous Knowledge” if it was done in good faith? Great, but if this knowledge is so powerful, why “wouldn’t” we want to share it
7/ So where is all this transparency, if “Indigenous Knowledge” is kept secret?

Public Engagement

Public engagement

74 The Regulator must establish processes that the Regulator considers appropriate to engage meaningfully with the public — and, in particular, the Indigenous peoples of Canada and Indigenous organizations — when public hearings are held under section 52 or subsection 241(3).

Participant funding program

75 For the purposes of this Act, the Regulator must establish a participant funding program to facilitate the participation of the public — and, in particular, the Indigenous peoples of Canada and Indigenous organizations — in public hearings under section 52 or subsection 241(3) and any steps leading to those hearings.

Public hearings are good, but the incessant pandering to Indigenous groups gets tiring.

Regulation of Construction, Operation and Abandonment

Orders

95 (1) To promote the safety and security of the operation of a regulated facility, the Commission may, by order, direct the holder to repair, reconstruct or alter part of the regulated facility and direct that, until the work is done, that part of the regulated facility not be used or be used in accordance with any conditions specified by the Commission.

Other measures

(2) The Commission may, by order, direct any of the following persons or bodies to take measures in respect of a regulated facility, an abandoned facility or any work or activity authorized under Part 5 that the Commission considers necessary for the safety and security of persons, the safety and security of the regulated facility or abandoned facility or the protection of property or the environment:

(a) an Indigenous governing body;
(b) the holder or any other person;
(c) the federal government or a federal Crown corporation;
(d) a provincial government or a provincial Crown corporation;
(e) a local authority.

This sounds nice, but in practice, anyone on the list can start making demands and delay or shut down any major project. Again, pandering to Indigenous bodies.

Offence and punishment — duty to assist and orders

112 (1) Every person who contravenes subsection 103(4) or fails to comply with an order under section 109 is guilty of an offence and is liable
(a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than five years or to both; or
(b) on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than one year or to both.

Defence — no notice

(2) A person must not be found guilty of an offence for failing to comply with an order under section 109 unless the person was given written notice of the order in accordance with paragraph 109(3)‍(a).

Offence and punishment — obstruction

(3) Every person who contravenes section 106 is guilty of an offence punishable on summary conviction and is liable, for a first offence, to a fine of not more than $100,000 and, for any subsequent offence, to a fine of not more than $300,000.

This is one of many references in the Bill which criminalise certain actions. If nothing else, the bill does have teeth in it.

Pipeline Claims Tribunal

Establishment

Establishment of Tribunal

143 (1) The Governor in Council may, by order, after a designation is made under subsection 141(1), establish a pipeline claims tribunal whose purpose is to examine and adjudicate, as expeditiously as the circumstances and considerations of fairness permit, the claims for compensation made under this Act in relation to the release that occurred from the designated company’s pipeline and specify the location of its head office.

Reasons

(2) However, the Governor in Council may establish a pipeline claims tribunal only if, having regard to the extent of the compensable damage caused by the release, the estimated cost of paying compensation in respect of that damage and the advantages of having claims dealt with by an administrative tribunal, the Governor in Council considers it in the public interest to do so.

Claims treated equitably

(3) A Tribunal must exercise its powers and perform its duties and functions with respect to claims for compensation in an equitable manner, without discrimination on the basis of nationality or residence.

Now adding even more bureaucracy. The Governor in Council may establish a tribunal to specifically rule on pipeline compensation.

This bill goes on and on. Feel free to read the entire document

But the main take away is that it creates more and more levels of bureaucracy for any sort of development projects, such as pipelines. The only plausible explanation is that the Bill seems designed to prevent anything from getting off the ground.

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Mandatory Minimum Sentences: Good, Bad, Or It Depends?

Suggested Offences With Mandatory Minimums
CC 46-48 (Treason)
CC 83.01-83.3 (Terrorism)
CC 151-154 (child Sex Offences)
CC 229-239 (Murder, 1st degree)

The case AGAINST Mandatory Minimums
-Judges are better able to look at a case and decide what is fair
-Judges are better able to decide what would be best for the public
-Judges are not subject to the whims of the population, given their jobs are secure
-In the event of very poor rulings, they can be appealed
-Mandatory minimums are very costly to the public
-Mandatory minimums result in “social costs” to the public
-There is no general deterrence
-Politicians in general cannot be trusted to pass good laws
-Politicians take so much power anyway, a separate judiciary is necessary
-Government should stay out of people’s lives as much as possible
-Given fraud and corruption within gov’t it is hypocritical for them to be passing such laws
-Judges are best able to “make that exception” when needed
-Mandatory minimums make it hard, if not impossible to make punishment fit the crime. It always must.

Articles Cited:
Research At A Glance
Mandator Minimum Penalties
Mandatory Minimums Unfair and Expensive
PBS Special on Mandatory Minimums

The Case IN FAVOUR OF Mandatory Minimums
-Politicians can (theoretically) be thrown out, judges cannot
-Although far from perfect, public input can help draft laws
-While judges are well intended, different perspectives can lead to widely differing sentences on cases of similar facts
-Consistency is necessary in applying sentencing principles
-If bad rulings occur and are not struck down, they can create ”precedent” for future bad rulings. Having set standards eliminates that possibility
-If not mandatory minimums, then guidelines (as is also the case in US/UK)
-Some offences are so bad they “require” prison time (as mentioned, it covered offences like murder, terrorism, child sex offences)
-Of course, this is not to imply that all, or even most offences should carry mandatory minimums
-The crimes being proposed for mandatory minimums are committed so rarely, that there would be ”no dragnet” of people.
-For certain offences, the well being of society needs to trump individual rights
-The Principles of Sentencing (see below) to see a need to balance both individual rights and society’s (the group’s rights)
-Items (a), (b), (c) put societal interest first, while (d), (e), (f) put individual interest first

What Does The Law Say?

Note: the information here is not necessary to prove that mandatory minimums are necessary, but rather to explain when the rationale behind sentencing.

Also the Bill C-42 was introduced to remove so-called ”conditional sentencing” for certain offences. The rationale being, if house arrest is inadequate, the probation would be even more so. In effect, it would ”create” mandatory jail sentences (though the length not specified).

Purpose and Principles of Sentencing
Marginal note:
Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Objectives — offences against children
718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Objectives — offence against peace officer or other justice system participant
718.02 When a court imposes a sentence for an offence under subsection 270(1), section 270.01 or 270.02 or paragraph 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

Objectives — offence against certain animals
718.03 When a court imposes a sentence for an offence under subsection 445.01(1), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Restrictions on Conditional Sentencting, Bill C-42

R v. Proulx (2003) for conditional sentencing

“The requirement in s. 742.1 (b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence, and not the primary consideration in determining whether a conditional sentence is appropriate. In making this determination, the judge should consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law. Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals.

Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. This follows from Parliament’s clear message to the judiciary to reduce the use of incarceration as a sanction.

A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future.

Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.

Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served. A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances.

No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced. However, it would be in the offender’s best interests to establish elements militating in favour of a conditional sentence.

Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.”

R v Proulx makes a pretty compelling case in favour of “conditional sentencing” a.k.a. “house arrest”. This case is recognized and relied on when handing down sentences. Many defense lawyers argue that conditional sentencing would better serve everyone (in most cases) than physical prison.

The restrictions that came from Bill C-42, however, means that certain offences are no longer eligible for conditional sentencing. This means that Judges will have to choose jail sentences, since probation would be considered unfit.

Overall, a very interesting topic to cover.