Category: Law

What is the difference between a hate crime and a terrorist attack?

“Why are attacks against some considered terrorism, while this is only a ‘hate crime’?” asks Joel Arthurs via Twitter in respect to our story about a Mosque in Peterborough, Ont. that was deliberately set on fire.

Sean Fine, The Globe’s justice writer gave this response:

The reader raises a good question. Terrorism and some hate crimes may overlap. Hate may be linked to a political, religious or ideological purpose – part of the definition of terrorism. And why do people commit hate crimes if not to intimidate? Intimidation is also part of the definition of terrorism.

But the Peterborough mosque example is straightforward. Someone threw a bottle with flammable liquid through a window, causing a reported $100,000 in smoke damage. Under Canada’s 2001 Anti-Terrorism Act, property damage qualifies as terrorism only if it is substantial, and likely to cause death or serious bodily harm, or endanger public health or safety. Or if the act “causes serious interference with or serious disruption of an essential service, facility or system.” A nuclear plant, for instance.

The wording of the terrorism law communicates the largeness of scale of terrorist crimes and motivations, as Parliament views them. The intimidation clause, for instance, includes an intention to compel “a person, a government or a domestic or an international organization to do or to refrain from doing any act. . .”

“Terrorism requires attacks on individuals, not just buildings,” Winnipeg human rights lawyer David Matas says. “It trivializes the concept of terrorism to use it for property damage.”

What is a hate crime? In Canadian law, it is a crime to advocate or promote genocide, punishable by up to five years in prison. It is also a crime to incite hatred of an identifiable group, if that incitement is likely to lead to a breach of the peace. (Maximum sentence: two years.)

But the term “hate crime” is most commonly used to describe any crime — assault or arson, for instance — in which hate is an aggravating factor. The Criminal Code written by Parliament instructs judges to increase sentences when there is “evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.”

“Hate crimes in Canada are simply a sentencing enhancement and not an independent crime,” University of Toronto law professor Kent Roach says. The penalty for arson would be increased if the court finds the arsonist’s motivation was hate.

But it is not always a simple matter to separate hate crimes from terrorism.
Imagine that a janitor working in the mosque was killed. Murder doesn’t require intent; it is enough that the person throwing the flammable liquid was willfully blind to the possibility. The charge could be murder, with hate as an aggravating factor. (Second degree murder, like that of first degree, carries an automatic penalty of life in prison, but the parole eligibility varies from 10 to 25 years; hate could mean more prison time.) Or the death of a janitor in the mosque could have resulted in a terrorism charge. All the elements — the intent to intimidate, the political motive, the death — are there.

The same goes for Justin Bourque’s killings of three RCMP officers in Moncton, N.B., last year, or Marc Lepine’s massacre of 14 women a École Polytechnique in Montreal in 1989. Terrorism or murder? That is where a prosecutor’s discretion comes into play.

 Follow Sean Fine on Twitter and if you have a question that you would like answered, use #AskTheGlobe and we will do our best to search for the answer.

Should I move my car after an accident if it’s blocking traffic?

“Is it okay to move your car after an accident or should you leave it in place until the police arrive — even if it’s blocking traffic?” asks Shelley Rowland on Twitter. Globe Drive’s Jason Tchir has the answer:

If nobody’s hurt and your car is drivable, move it out of the way, police say.

“There’s no law here that says you have to move it,” says Const. Clint Stibbe, with Toronto Police traffic services. “But we do have signage up mainly on the expressways that asks drivers involved in a minor collision to move their vehicles off the roadway.”

Police don’t usually show up at minor accidents — they only come if there’s an injury serious enough to send someone to the hospital or if there’s a criminal charge like impaired driving. If any of those apply, wait for police and don’t move your vehicle.

But, in a minor accident, it’s up to you to move your car out of the path of traffic — or off the road entirely.

“If your collision happens on a major highway, instead of moving to the shoulder, the OPP would like the drivers to exit off the highway and find a parking lot or side street to avoid any visual distractions,” says OPP Sgt. Kerry Schmidt. “This is the safest thing to do if you need to exchange info with any other drivers or call your insurance company.”

Read the full answer here and follow Globe Drive on Twitter 

What happens if Parliament ignores The Supreme Court ruling on doctor-assisted suicide?

Glenn Gray, a reader in Mississauga, Ont. asks: “The Supreme Court of Canada has given Parliament one year to put the assisted suicide laws in effect. What happens if parliament ignores this completely – or takes longer than a year? How would parliament be punished for that?”

Sean Fine, The Globe’s Justice reporter has covered The Supreme Court ruling extensively (and answered previous reader questions on the subject.) He has your answer:

The court did not command Parliament to do anything. It said that the prohibitions on assisted suicide in the Criminal Code no longer have any legal force, and it suspended the effect of its ruling for one year to give Parliament, and presumably other levels of government, regulatory bodies and medical associations, time to put in place the rules and processes by which seriously ill people could find a willing physician to end their lives.

Parliament has the right to take as much time as it wants, and to do what it chooses. But at the one-year mark, it will no longer be a criminal offence in Canada for a physician to aid in the suicide of a seriously ill, deeply suffering individual. People in that situation would be free to find a doctor willing to help them, and doctors would be beyond prosecution.

Even so, it would be a strange and uncomfortable situation simply to leave it open. In the court challenge, the federal government expressed deep concern for individuals who might be vulnerable to accept an early death against their wishes. Inaction by Parliament would allow for assisted suicide to happen with no recognized and enforced mechanisms for obtaining permission to end a life. The provinces could, however, if they wish, legislate in this area, within the parameters set by the court (that is, adults of sound mind whose irremediable suffering, either physical or psychological, is intolerable to themselves).

The court has no mechanism to punish Parliament. I don’t expect the Chief Justice to tell the Prime Minister he has to stay late and write lines or do pushups. But the electorate could punish the Conservative government or other parties, if it chooses. The government is accountable to the public, as always.

Follow Sean Fine on Twitter, and read the Globe’s editorial on The Supreme Court’s historic decision.

When will the law change to decriminalize doctor-assisted deaths?

Andrew Lemeuw in Toronto asks: “When will the law change with the new decriminalization of doctor-assisted deaths?  The Globe’s justice reporter Sean Fine, who covered the historic Supreme Court ruling, has the answer:

No later than Feb. 6, 2016.

The Supreme Court of Canada gave the government of Canada one year to draft new laws, if it wishes, to govern physician-assisted death. In a legal sense, Parliament could just do nothing; politically, though, that is highly unlikely, as the Conservative government would be seen as abdicating its duty to Canadians.

If Parliament approves no new law on assisted death by next February 6th, the law would change on that date to permit assisted dying for some suffering adults. This is a very serious right — control over one’s life covering what the court called “the passage into the death.” It can’t be held back by government inaction. Government can’t limit this right more than the court will allow.

The government has not publicly said whether it will introduce and try to pass a new law before the election. “This is a sensitive issue for many Canadians, with deeply held beliefs on both sides,” Clarissa Lamb, a spokeswoman for the federal Justice Department, said in an email. “We will thoroughly and thoughtfully study the Supreme Court’s decision . . . and ensure all perspectives on this difficult issue are heard. We will consult widely with Canadians and review the decision comprehensively before deciding how to respond.”

The Supreme Court set the parameters for any new law on physician-assisted death for ill people, and they are wide. They do not just cover the terminally ill. And “intolerable” suffering needs to be seen through the eyes of the ill individual. This group includes those who are suffering psychologically. The court said that the assisted-suicide laws currently on the books will not be considered valid “to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

Provincial governments, too, may wish to draft laws on assisted dying, since health care is a shared responsibility with Ottawa. Quebec already has drafted one such law, which was almost certain to be found unconstitutional if the court had upheld the Criminal Code provisions on assisted suicide; the constitution bars provinces from legislating in areas covered by the criminal law, which is exclusively federal jurisdiction. As it is, the Quebec law on assisted death would likely run afoul of the Supreme Court ruling, in that it applies only to the terminally ill.

The February 6, 2016 deadline poses a challenge for the federal government, as summer recess is coming and an election is expected next October. Some had suggested the Justice Department would ask the court for an extension, but that seems highly unlikely, and it is not difficult to imagine how the court would treat such a request.

Follow Sean Fine on Twitter , read the Globe’s editorial on the Supreme Court decision, and the Globe Debate column:  Next step in assisted suicide: Ensuring it can be done humanely

 

Do provincial jails use solitary confinement the way federal penitentiaries do?

“Do provincial jails in Canada use solitary confinement the way federal penitentiaries do?” asks Don Sellar, in Port Hope, Ont. “If so, what limits do they apply?” Patrick White, The Globe’s national reporter who investigated Canada’s reliance on solitary confinement in a recent feature Confined: The Death of Eddie Snowshoe, has the answer:

Yes, all provincial and territorial jails use some variant of solitary confinement. During a recent tally of provincial systems, I found that Ontario had 427 inmates in segregation while Prince Edward Island reported just one. These figures fluctuate day to day, hour to hour.

Generally, inmates can be sent to segregation for any one of four broad reasons: they require protection, they need to be isolated to maintain security of the institution, they have committed some kind of serious infraction or they voluntarily request solitary status.

I’m not familiar with the rules in every province, but for the most part, segregated inmates spend roughly 23 hours a day in their cells and qualify for certain privileges: access to health care, daily outdoor exercise, access to legal counsel, access to chaplains, family visits, telephone services, writing materials and books.

In reality, criminal lawyers and current and former inmates tell me these benefits are routinely withdrawn, often without explanation. Every warden seems to have a different interpretation of the regulations. One segregated inmate in an Ontario prison, for instance, told me his access to books was limited to religious texts.

When do they get out? Like federal institutions, provincial prisons have no hard time-limits on segregation. Prison officials review every inmate’s segregation status at regular intervals. But really, the only deadline is the length of the sentence. In provincial prisons – which only house those awaiting trial and those serving sentences of less than two years – the average term spent in jail, isolated or not, is considerably less than in federal institutions.

Read The Globe’s ongoing coverage of Canada’s use of solitary confinement here, arguments against the common practice herehere, and here ,  and follow reporter Patrick White on Twitter

If I get a ticket from a private company, do I have to pay it?

On Twitter, Oren Williamson asks: “If I were to get a parking ticket from a private company and not the government, do I still have to pay it?” We ask drive expert Jason Tchir:

Those parking tickets from private companies aren’t really tickets and the fines aren’t really fines, parking companies say.

“We’re a business, we’re not a municipality,” says Julian Jones, senior vice president, corporate development with Vancouver’s Imperial Parking Corp, better known as Impark. “The whole objective of our enforcement program is to enforce our payment system — not to write parking tickets and generate revenue.”

Impark says only a body authorized by statute (such as a municipality) can issue tickets or impose fines — Impark issues payment notices and collects fees, he says.

So what’s the difference? Well, if you get a parking ticket issued by a municipality and don’t pay it, it won’t appear on your driving record or affect your insurance rates — but the province won’t let you renew your vehicle’s registration. You won’t be able to get new stickers for your plates until you pay the ticket.

That restriction doesn’t apply for notices from a private company, says the Ontario’s Ministry of Transportation.

“If the private firm is not authorized by the municipality to issue tickets, an unpaid parking ticket, issued by the private firm will not result in plate denial,” says the MTO in an email.

It gets a little tricky because some municipalities, like Toronto, allow private security firms and parking management companies to issue official city parking tickets.

For the full story, click here.

For more of the latest drive news, reviews and advice, check out Globe Drive.

Why don’t Canadian death certificates show cause of death?

On Twitter, reader @TishHeaven asked: “Why doesn’t cause of death appear on Canadian death certificates?” She wanted to know as part of her quest to learn more about her family medical history. Globe reporter Josh O’Kane investigated, and found the answer is complex.  Death certificates in Canada are issued by the provinces and territories, so O’Kane reached out to all 13 of the agencies responsible for administering them. Here’s what he learned:

It comes down to privacy of personal information. You’re right –  a relative’s cause of death is important to learn more about your medical history. But because the cause of death is a component of a deceased person’s own medical history, it’s covered by the same kinds of privacy laws that exist to protect the medical records of the living.

I heard back from the governments of Yukon, British Columbia, Alberta, Manitoba, Ontario, Quebec and New Brunswick before this article’s publication. Confidentiality of medical records was the universal theme in restricting information about cause of death on publicly available death certificates.

“We operate within a number of different privacy regulations,” said Cynthia Vukets, a spokesperson for Ontario’s Ministry of Government and Consumer Services, in an interview. That ministry oversees Service Ontario – which in turn oversees the province’s administration of death certificates. “There’s a certain amount of personal information that is available to the public, and the rest is covered under privacy laws.”

But there is a lesser-known document, not available to the public, that a small group of people close to the deceased can request. Often called a “Medical Certificate of Death,” it’s usually filled out by a doctor and does include the cause of death. In most cases, next-of-kin family members can apply to their province’s Vital Statistics agency for a copy of this. It’s best to reach out to your province’s agency directly to see if you’re eligible as next of kin.

Read more

If a person wishes to be cremated, does it need to be stated in a will?

Reader Susan Salvo in Mississauga, Ont asks, “If a person wishes to be cremated in Ontario, does it need to be stated in a will?” Globe reporter Justin Giovanetti in Edmonton found the answer – which applies to all Canadians:

Here’s the main rule for writing a will: If you know how you want your remains to be treated, be exacting when you write it down.

Will writing isn’t a time for stylish prose that leaves survivors guessing. People should use plain, clear language. They should be repetitive. If they want cremation, they should state it emphatically. If they want their ashes scattered, they should be precise when they say where. It’s their will – they make the rules.

That said, make sure those closest to you know what you wish for:  whoever is chosen as a will’s executor has the same legal authority as the person who wrote it.

If a will is silent on a person’s preference of burial or cremation, the will’s executor will turn to a family in most cases and ask what they’d think the person would want. While it’s far from perfect, this is where conversations over the years are important. However, the choice is up to the executor.

Due to the increasing cost of burials—plots in Toronto are approaching the price of a compact car—an executor is empowered to make a different arrangement from a stated preference if they can show good reason. Aaron Morrison, the chairman of the legal committee for the B.C. Funeral Association, says “financial hardship” is the only reason he’s ever heard used.

Because of the small cost difference between burial and cremation in rural areas, not adhering to a will because of financial hardship is unheard of outside of big cities, according to Sheila Van Alstyne, who has run a funeral home in rural Alberta for 20 years.

If you know what you want, write it down – and make sure your family and those closest to you know too.

For more on important end-of-life decisions and planning, read Globe articles: Why we all need to have end of life conversations;  New conversation guide helps doctors discuss end of life care with patients and Estate planning: three documents you’ll need.

Is it normal to appoint someone to the Supreme Court of Canada who has never had any experience as a judge?

Michael Wayne in Markham, Ont. asks: Is it normal to appoint someone to the Supreme Court of Canada who has never had any experience as a judge? Sean Fine, The Globe & Mail’s justice writer, says, “yes, it’s normal — if normal means something done regularly. Having a member drawn straight from the practice of law is a bit of a tradition on the Supreme Court.” Fine elaborates:

Justice Suzanne Côté of Montreal, named to the court late last month, is the first of Harper’s eight appointees (seven judges plus a rejected appointee, Marc Nadon) chosen straight from the practice of law. This may be because lawyers have no track record of judgments; it is difficult to know how aggressively they will stand up to government on its crime laws, for instance.

Ian Binnie is the last Supreme Court judge who came straight from a law practice; he served from 1998 to 2011. Just before Mr. Binnie, John Sopinka was on the court from 1988 to 1997. And before Mr. Sopinka, Yves Pratte, from 1977 to 1979. And before Mr. Pratte, Ronald Martland, from 1958 to 1982.

Ms. Côté has a tough act to follow in Mr. Binnie and Mr. Sopinka, each of whom developed into a leader on the court; both were prolific writers and agile thinkers who influenced many areas of law.

“They were really concerned about the burdens placed on an accused who is confronted with the evidence gathered by police forces, and the inherent imbalance, University of Montreal legal historian Michel Morin said. “They had represented accused in the past, and they were very much concerned about the rules of evidence, burden of proof and procedural guarantees. And they insisted very strongly on using the Charter to redress the imbalance they perceived.”

Lawyer Guy Pratte, son of the late Yves Pratte, said it is desirable to have a lawyer’s experience, whether from the courtroom or the world of business law, “fresh from the bar, as opposed to 20 years on the bench – to have one person with a contemporaneous perspective on legal issues. To have one out of nine is desirable. Proof of the pudding has got to be justice Binnie and justice Sopinka, to leave my father aside. Both top-notch practitioners who were top notch members of the Supreme Court, both in their writing quality and their judgment.”

Legal historian DeLloyd Guth, of the University of Manitoba law school, said naming a lawyer straight to the Supreme Court is “less normal” now than it used to be. The professionalization of the judiciary is a fairly recent development.

“During the 800 years since Magna Carta (1215), the English crown built into its three common law courts (King’s Bench, Common Pleas, Exchequer) and Court of Chancery a strict respect for a progressive ladder out of the ranks of barristers to the bench,” he explained in an email. “You had to be an experienced lawyer, not necessarily a promoted, experienced judge. The twentieth century in England and Canada has witnessed a further professionalization of the judiciary, specifically with a convention that an appellate judge should first have trial judge experience.  It is also this century that effectively ‘invented’ appellate law courts around the world, most noticeably in civil law countries, thereby widening further the internal gap between trial and appellate court criteria and demands made on respective judges.”

He said an “abnormal” approach would be to name a non-lawyer to the Supreme Court. (That would be disallowed under the Supreme Court Act.)

Read more from Sean Fine here and follow our coverage of the Supreme Court of Canada here

Help! I have cockroaches. Can I terminate my lease?

Reader Trent Redekop in Vancouver wrote to us after moving into an apartment and finding unwanted roommates:  “I found out that it has many cockroaches. Can I terminate my lease?” Globe Real Estate Editor D’Arcy McGovern says your question reminds of him a recent trip to Puerto Rico, “where our ‘luxury beach-side condo’ came with some uninvited guests. The crunch of toonie-sized roaches underfoot while walking the halls in the dark of night is… memorable.”

Gross – but is it cause for a lease termination? McGovern explains:

I can certainly understand why you might be thinking of pulling up stakes. But unfortunately, it’s not grounds to terminate a lease unless under very specific circumstances. I asked Sandra Steilo, with B.C.’s Minister Responsible for Housing to explain.

“In any property, eradicating an infestation is a joint effort that relies on the full co-operation of both landlord and the tenant,” says Steilo.

“Working cooperatively and having a strategy in place is vital. Failing to fulfill responsibilities could mean that one party has to reimburse the other for expenses. The [BC] Residential Tenancy Act requires a landlord to maintain a rental property in a state that is suitable for occupancy by a tenant and meets all housing, safety and building standards required by law. If a landlord does not act in a reasonable and timely manner to deal with the problem, a tenant can apply for dispute resolution for compensation.”

She says that dealing with an infestation is considered part of maintenance, and is not grounds for terminating a lease, “unless it is expressly stated in the tenancy agreement.”

Steilo says that in the event of a dispute resolution, you will require acceptable proof, which could include photos, written documentation of communication with landlord, any third party reports or even a witness statement.

“The Residential Tenancy Act provides recourse to both parties,” she explains,” including dispute resolution services when tenants and landlords are unable to reach an agreement on their own.”

The dispute resolution process is a formal civil proceeding, similar to a court proceeding, designed to balance the rights of both tenants and landlords, says Steilo. “It is an opportunity for each party to tell their story and present evidence to an independent arbitrator.”

She says there are structures in place to protect a landlord’s rights as well – “if the landlord felt that the tenant provided a false claim and filed for dispute resolution, the landlord would need to show evidence that they had responded appropriately to the issue and provide written or photographic evidence of the steps taken to assess the problem and establish that there was not an infestation.”

More information on the dispute resolution process can be found here or tenants can call the Residential Tenancy Branch at 1-800-665-8779.

Read more from Globe Real Estate, and if you’re in need of a silver lining, at least you’re not these people.