Category: Canada

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Rebuilding Your Life After Doing Something Stupid

(Screenshot of the Main Page of New Zealand’s “Clean slate Scheme”)

What happens to a person long after committing a criminal offense? Once a person has paid all obligations (prison, probation, fine) the charge still follows them around, right? Well, yes and no. While the convictions themselves do not disappear, there are options for getting the person back into society. Since a record limits people’s prospect for travel, work, education, adoption, etc… there are ways to get around this depending on the circumstances.

This article looks at 5 Common Law Countries: (a) UK; (b) US; (c) Canada; (d) Australia; and (e) New Zealand.

(a) UK: Spent convictions

Here is a link to the U.K. branch. The 1974 rehabilitation of offenders act refers to charges as ”spent” or ”unspent”. Spent charges are to have no impact on the person in most circumstances.

The waiting period differs. For example, community orders are spent a year after they are completed. Custody sentences range from 2 years, to 4 years, to 7 years, to permanently ineligible.

Also, the act has been amended. It used to be 30 months was the cut off period for charges being spent. It is now 48 months (4 years).

(b) US: Pardons

Click Here for more information.

This is still largely a political process, and can be done at the State level (by a Governor), or at the Federal level (by the President). Critics however believe that it largely leads to political and connected people getting the break. Those with minor charges do still get them often.

(c) Canada: Pardons, a.k.a. “Record Suspensions”

Click Here for the National Parole Board

For summary (misdemeanors) it is 5 years after the sentence is served

For indictable (felonies) it is 10 years after sentence is served.

In 2010 the rules were changed to prevent longer term and series criminals from getting their records sealed. Notorious pedophile Graham James discovered to have gotten one. This was 2010, and the rallying cry for reform became ”pass these reforms, or Karla Homolka also gets a pardon”.

However, those have been struck down for Ontario and BC residents, at least as far as those who finished a sentence before 2010. See here.

Note: to Canadian traveller’s going to the US — Homeland Security specifically says it does not recognise a Canadian pardon/suspension and a waiver must still be applied for.

One other thing of note: there are restrictions on those who can get one, (a) anyone serving a life sentence; (b) anyone declared a dangerous offender; (c) those with 3 or more felonies if they resulted in 2+ years in prison; (d) sex offences are still flagged in vulnerable persons checks; (e) drug trafficking if still flagged in U.S. access.

(d) Australia: Spent Convictions

Click Here for the link to the Australian site.

Australia ”spends” convictions, though it appears that the rules differ somewhat if the crime was committed in Australia v.s. abroad

(e) New Zealand: Clean Slate Scheme

Click Here, and also Click Here for information on the New Zealand site.

This scheme only refers to NZ society, and acknowledges that it isn’t recognized in many other places.

In order to be eligible, no jail sentence must ever have been imposed.

SOME THOUGHTS

This looked at 5 Common Law Countries: UK/US/Australia/New Zealand and Canada. While the result is much the same, one major difference is that the US system seems to be politically based.

Still, good news for those looking to move on. Doing something stupid (any fairly minor), shouldn’t be a lifetime hinderance for people looking to rebuild their lives.

In almost all circumstances, a pardon/suspension/spending can be revoked if the person commits more crimes. Makes sense, as its intended use is for people who have moved on. According to sources within the Canadian justice system, 96% of people who get a record seal do not commit other crimes. That is 24 out of every 25 people. Being able to clear a record is helpful for the vast majority of people.

Understandably, it does upset some people that ex-cons are able to seal or move on afterwards. In particular, many victims and their families take issue with this. And depending on the circumstances, they are absolutely right. However, these options seem much more geared towards minor offences and not towards serious, repeat offenders.

The 5 Common Law countries listed here all have this option, to varying degrees. Not sure where else it exists, but worth a close look.

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Child Killer Gets Transfer to “Healing Lodge” Because of her Race

(Interrogation of McClintic)

(Interrogation of Rafferty)

(News on McClintic’s Transfer To Healing Lodge)

As cited in a previous article, see here, all defendants/prisoners are not equal in the eyes of the law. This is a racially discriminating practice that Canada has been involved in doing since the late 1990s.

Here is section 718.2(e) of the Canadian Criminal Code:

all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

Yes, one racial group is allowed to get what amounts to a race based discount. The 1999 Gladue ruling essentially paved the way for this to be normalized across Canada, while the Ipeelee decision expanded the scope to include long term offenders.

Here are the links to the Court decisions of Gladue (1997, 1999) and Ipeelee (2012).

R. v. Gladue, 1997 CanLII 3015 (BC CA)
R. v. Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC)
R. v. Ipeelee, [2012] 1 SCR 433, 2012 SCC 13 (CanLII)

While Indigenous people getting a race-based discount is nothing new in Canada, the transfer of child killer Terry McClintic to a “healing lodge” has the Canadian public flared up.

In 2009, 8 year old Tori Stafford was murdered by Terri McClintic, who was an accomplice to Michael Rafferty. In 2010, both McClintic and Rafferty received life sentences, with a 25 year custodial minimum. In 2014, McClintic was transferred to a medium security prison. Now, in 2018, McClintic is being sent to this “healing lodge”.

Not only is McClintic a child killer, but she viciously assaulted another inmate in 2012, and bragged that she only regretted not causing worse injury. Definitely a candidate for transfer from maximum to medium security prison.

Unfortunately, the federal parties are playing politics with it, while avoiding the real issue. The Liberals, now in government, blame the Conservatives for the 2014 transfer to medium security prison (when Stephen Harper was PM). The Conservatives blame the Liberals for not stopping this transfer. Both blame the other, while saying that they were not able to do anything — that Corrections Canada makes the decisions.

But the real issue that both Liberals and Conservatives dodge is that the entire law giving special treatment to Aboriginal/Indigenous/First Nations peoples. No group should receive “any” special treatment. Raced-based discounts are immoral.

What “should” be done is have the Gladue/Ipeelee rulings overturned. Yes, the Supreme Court of Canada endorsed this nonsense, but it can be stopped permanently using Section 33, the Notwithstanding Clause of the Canadian Charter of Rights and Freedoms.

Application of Charter
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
Marginal note:
Exception
(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.
Marginal note:
Exception where express declaration
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Rafferty/McClintic have frequently been compared to Paul Bernardo/Karla Homolka, another male/female child killing couple. Karla Homolka’s mere 12 year sentence outraged Canadians, as does the McClintic transfer now.

Rather than bickering about whose government dropped the ball, this soft bigotry of low expectations needs to end. Legislate this nonsense out of Canadian law.

Update on the Story: On October 3, the Liberals, NDP and Green Party voted against a Conservative motion that would have kept Terri-Lynn McClintic in prison. See this link.

Further Update on the Story
On November 8, the Liberals have announced they will make new rules to send McClintic back. However, it doesn’t address underlying racist nature of the law — different sentencing rules based on skin colour, or even on ”how someone identifies”.

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European Union Censorship

(Provocative, but you get the point)

September 12, 2018 — the European Union passed this law, the “Copyright Directive”, in a 438-226 vote.

Other media on the subject can be found: here, here, here, and here.

The “Copyright Directive” was originally stopped in July of this year, primarily over concerns over Articles 11 and 13. And to a degree, the concerns were over the same thing. Responding to, or critiquing another’s work is very common, and makes way for advancement of discussion of ideas. As long as there is some educational, critical or reporting use (and not blatant copyright), then using portions of a person or institution’s work is fine. In fact, this very website, Chimeratsk.com, cites Canadian “Fair Dealing“, and American “Fair Use” provisions.

Article 11, a.k.a. the “link tax”, concerned ways for original content creators to get paid via taxes or royalties. In practice though, how would one know who the original content creator was? Perhaps the royalties would be going to someone who is at least in part responding to another person’s work.

Article 13 had to do with platforms such as Facebook and YouTube being blocked from sharing protected content. Apparently there is to be a huge database on protected material, which by itself sounds creepy. To be fair though, the law says that encyclopedia-type platforms like Wikipedia will be exempt. However, as many images, text and music can sound similar, how would the original creator be identified?

Further, copyrighted material does not last forever. For example, the book “1984”, written by George Orwell (a.k.a. Eric Arthur Blair was written in 1949, so after 1999, a Canuck should be free to use it freely. Under Canadian Copyright Law, 50 years after death, copyright protection would disappear. Yes, ironic to use the Orwewll book here. However, would this EU driven database(s) know when copyright on each image, unique, phrase, text, etc… lapse?

On a semi-related note: there is an academic database — turnitin.com which college and university students would upload digitial copies of essays and other papers. This is an anti-plagiarism site which was to ensure that students were handing in original work. The site would compare and contrast the student paper against millions of others and look for regions of overlap. Sounds great, except for problems those arose in this.

At its core, the Copyright Directive seems to nullify what may be considered Fair Dealing/Fair Use exemptions (by listing the original content creator as the copyright owner of any and all of its content, and responses. CLICK HERE, for an article on the proposed revisions of Article 11 and 13.

Some accidental incidents of censorship occurred here, here, and here.

While the E.U. has passed this Copyright Directive, there are reasons to be cautiously optimistic:

First, even if nothing is done, this seems absurd on its face to implement. (See the earlier criticism on logistical issues). Yes, content is still getting blocked, even the most innocuous stuff. While this is done under the guise of “protecting” creators, the complications that will arise will cause more and more headaches. Oddly, creators will “lose” money if research and ad revenue plummet.

Second, the law will undoubtedly face legal challenges and be tied up in the courts for years.

Third, each memberstate will implement their own version of this law, and that will likely not happen for a year or 2. Harder to enforce when the rules aren’t uniform. And on a related note: what about the UK, who is leaving the E.U.? What about any other member who may leave? What happens if governments change and their successors don’t agree with what they see? And won’t any inconsistencies in member laws make it easier to challenge the law?

Fourth, what if any E.U. members decide to just ignore the directive altogether? The EU has shown itself to be rather toothless in enforcing its own rules and orders.

Fifth, how will this be enforced when using material from, or creating new content in countries that do not have these laws, or subscribe to this version of them?

Online creators decry this EU directive, and they do have reason to be worried. However, there are many options available to fight it, and many hurdles it will face.

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Review of the Book ”An Advocacy Primer”

(3rd edition of the book by Lee Stuesser)

This book was released in 2005 by Lee Stuesser, a law professor at the University of Manitoba. It is basically a reference book for how to litigate different types of cases.

The book itself was written for law students in how to work for clients. However, the information provided is very straightforward, and many self-represented persons could get a leg up simply by reading through and following along. Self representation, as discussed here, is possible by many people, on the more simplistic cases.

”An Advocacy Primer” details: (a) how to go about the many steps in litigation; (b) gives many tips on how to prepare documents; (c) organize arguments; and (d) common pitfalls to avoid.

A brief outline of the book:

Chapter 1: Developing a Trial Plan
Chapter 2: Draft of the Pleadings
Chapter 3: Civil Case — Disclosure
Chapter 4: Criminal Case — Discovery
Chapter 5: Making Submissions
Chapter 6: A Trial Notebook
Chapter 7: Running a Civil Trial
Chapter 8: Running a Criminal Trial
Chapter 9: Opening Arguments
Chapter 10: Closing Arguments
Chapter 11: Your Case — Direct Examination
Chapter 12: Using Exhibits
Chapter 13: Principles of Cross Examination
Chapter 14: Impeachment
Chapter 15: Objections at trial
Chapter 16: Special Witnesses
Chapter 17: Appellate Advocacy
Chapter 18: Ethics of Advocacy

Stuesser’s work can be used in one of two ways. First, it can be read straight through as a non-fiction book. Second, it can be used in pieces, as needed for a representative in a legal matter. This 475 page book also gives many templates of legal forms, and exact wordings to include.

The second option is obviously far more practical. The first is possible, although it would be a very tedious read to do in one sitting.

Overall, the book is great source of information, both for self-reps and other legal enthusiasts.

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Ontario Gov’t Using Notwithstanding Clause to Shrink Toronto City Council (Bill 5)

Ontario Premier Doug Ford. (Source: HuffPost)

Ontario’s new Conservative Premier Doug Ford is attempting to shrink the Toronto City Council almost in half (from 47 to 25 members).  The main argument is that the ever expanding size of the council does nothing to actually improve representation and effectiveness.  Rather, it just leads to increased staff and costs for taxpayers.

Faith Goldy, currently running for Mayor of Toronto in October 22 election posted a YouTube video seen HERE, commenting on it.  An amusing video.

On July 30, 2018, Bill 5, the “Better Local Government Act” got its first reading.  August 14 saw it receive 2nd and 3rd readings and be passed.  However, the Toronto City Council voted to proceed with a legal challenge against it in court.

The Council claimed that the bill violated the Canadian Charter of Rights and Freedoms.  See HERE for a link to the text of the Charter.

On September 10, an Ontario Superior Court Judge ruled that the Provincial Government’s decision violated Section 2(b) of the Charter, which states: 2. Everyone has the following fundamental freedoms: …… (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;”.  Specifically, the Judge ruled that the Bill violated Torontonians’ right to “freedom of expression”.

To put it in more detail, because of the ongoing Mayoral and Council elections, cutting the Council size, it substantially interfered with municipal voters’ freedom of expression and the “right to cast a vote that can result in effective representation”.

However, the Ontario Government has decided to re-introduce the Bill, and instead rely on a different part of the Canadian Charter, Section 33, which is the “Notwithstanding Clause”.  In short, this provision allows a Provincial or Federal Government to pass laws even though a Court considers them unconstitutional.  33(1) reads as follows:

“33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”

To be fair, Section 33(3) of the Charter states that legislation passed this way will cease to have effect after 5 years.

The “Notwithstanding Clause” has been a part of the Charter since its inception, but has very rarely been used.

Application of Charter
32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

There is an interesting twist to this story: The Charter effects both the Federal Government, and the Provinces and Territories. (See above for Section 32). However, Canada is also governed by the Principle of Paramouncy. In short, in the cases of competing laws, the highest power will succeed. Put plainly, Federal law tops Provincial law, and Provincial law tops Municipal law. There is a good deal of logic to this, as Federal law would mean nothing if cities and Provinces could simply legislate their way aroung it.

An exception to this of course: is that the various levels of power cannot legislate if doing so steps outside their legal boundaries. Sections 91 and 92 of the Constitution spell out exactly whose powers are whose.

Hypothetically, the Federal Government could invoke “their” Notwithstanding Clause in order to override “Ontario’s” Notwithstanding Clause. But that doesn’t seem to be happening, at least for now.

A very interesting use of the Notwithstanding Clause. Shows at least the Ontario Government is serious about cutting the size of government. We shall keep an eye on it.

AN UPDATE TO THE STORY: On, September 19, 2018, the Ontario Court of Appeals stayed the order of the Ontario Superior Court, effectively giving Premier Ford the go ahead to shrink Toronto City Council. An interesting note here — while the Court of Appeals did say that shrinking the Council in the middle of a municipal election was unfair, unfairness by itself is not a reason to stop Bill 5.

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Ontario Universities Ordered to Protect Free Speech, of Face Budget Cuts

Ontario’s new Premier, Conservative Doug Ford, ordered colleges and universities across the province to come up with free speech policies.

They have until January 1, 2019 (one semester), to comply.

This is welcome news at least in principle.   Free speech must unrestricted, otherwise it no longer is free.

The original program from TV Ontario, a publicly funded show

https://www.youtube.com/watch?v=9YdFlKaJv4g

Audio of the infamous Shepherd/Rambukanna/Pimlott/Joel recording

Lindsay Shepherd/Dave Rubin, Decemebr 1, 2017.

It will be interesting to see the policy once it is actually fleshed out, and how the schools will deal with it.

Further, will schools still be able to censor (even if on a reduced basis) by claiming that topics are hate speech or inciting violence?

It will be of interest to read up on the Chicago Principles, aka the Chicago Statement, which serves as a model for free speech and open inquiry in the U.S.

To fully understand this proposal, some backstory and context is necessary for the readers.

One of the main incidents was in November 2017, when Wilfred Laurier University graduate student Lindsay Shepherd made international news.  The Waterloo university staff had reprimanded her for showing part of a TVO clip (which was public TV anyway).

Needless to say the incident (which was recorded), caused a backlash against WLU specifically, and universities generally.  Lindsay herself made many media appearances, and took free speech/open inquiry as a calling.

Shepherd founded the Laurier Society for Open Inquiry, L-SOI, and has deliberately sought speakers with different and controversial viewpoints.   One event was a debate on pro-choice v.s. pro-life.

However, one event was cancelled when Faith Goldy was scheduled to talk, on March 20.

https://www.thestar.com/news/canada/2018/03/20/faith-goldy-talk-at-wilfrid-laurier-university-shut-down-by-fire-alarm-after-protest.html

As an aside, Lindsay Shepherd and Jordan Peterson (the prof referred to as ”Hitler”), both have legal claims pending against Wilfrid Laurier University, and the 3 staff members from the meeting: Nathan Rambukkana, Herbert Pimlott, Adria Joel.

Suppression of free speech is not at all limited to Canadian schools.    There are many examples of this happening in the U.S. as well.

(a) In 2015, Mizzou (University of Missouri), was involved in a series a race-related events.   It also involved a faculty member, Melissa Click, asking to ”get some muscle over here” to remove a journalist covering an event.

(b) In 2017, there were violent riots across Berkeley University in Berkely, California.  Berkeley holds its ”free speech week” every year.   Typically conservative and controversial speakers are invited to give new views to students.  While protests are frequent, this onethis one ended in arson, when Milo Yiannopoulis came to speak.

(c) In 2017, In Evergreen State College (in Olympia, Washington), biology professor Bret Weinstein actually caused a mob takeover of the school when he emailed that the ”day of action” was a bad policy.  This was a day where whites were to ”leave for a day”, an inversion of the ”day of absence”, where black students and faculty leave for a day.

(d) Less dramatic incidents of speakers being shouted down are  rampant throughout the news and on YouTube.  An interesting observation is that it is almost exclusively ”left-wing” protesters trying to silence ”right-wing” speakers.

Author’s Note:  This is certainly a step in the right direction.  While I certainly applaud any news the promotes and defends free speech, there are many details I would love to ask Premier Ford.  Here are a few:

(1) Will colleges/universities still be able to ban groups they do not agree with, such as men’s issues awareness, and pro-life groups?  Will they be able to weasel around this law by saying it ”protects marginalized people”?

https://chimeratsk.com/canadian-universities-fighting-against-free-speech-and-free-association-in-court/

(2) Will colleges/universities still be able to ban political groups and talks it disagrees with?  One such example being University of Toronto banning the Canadian Nationalist Party, even though the founder specifically says they are not a race-based party.

U of T bars Canadian Nationalist Party from hosting rally on campus

(3) What measures will be put in place to ensure that colleges/universities can’t still suppress free speech under false claims of hate or bigotry?

(4) How will this actually be enforced?

I left university years ago.  Thankfully, as a STEM student I largely avoided this nonsense.  However, evidence of attempted suppression is everywhere.  I too despise actual hate speech and calls to violence, but false claims seem to be a convenient tactic to simply silence dissenting views from being heard. Still, this is a promising step.

Interestingly, Shepherd herself has questioned the merit and effect of “forcing” universities and colleges to adopt free speech guidelines. After all, how committed can they really be?