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Mark Cooper
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Mark Cooper
2011-03-24 16:31
Thank you, Mr. Chairman and members of the committee.
I appreciate the opportunity to testify today, and I will share some research I've been working on about the cost of building nuclear reactors. Plus, I've done some analysis looking at the impact of safety, an issue the last panel suggested needs to be considered at this moment.
The high cost and large capital expenditures associated with the construction of nuclear reactors make the technology more expensive and risky than available alternatives. Because reactor projects are extremely complex and involve environmental safety concerns of very toxic and volatile fuel, they are prone to cost overruns. The cost is driven by the difficulty of dealing with the fuel.
Their huge size and long lead times make them vulnerable to changes in marketplace dynamics, or public policy for that matter, which may eliminate or alter their economics. Because of these characteristics, certain utilities in the U.S. cannot raise funds in capital markets to build them.
Reacting to this marketplace reality, nuclear utilities in the U.S. have sought to sidestep the judgment of financial markets to secure massive subsidies that shift the risk of nuclear construction away from utility stockholders onto taxpayers, in the form of loan guarantees, and onto ratepayers, in the form of advanced cost recovery. Equipment vendors are probably kicking in some subsidy too in an effort to get a bandwagon going.
In the U.S. the industry had some success getting loan guarantees and advanced cost recovery, but the reality of the economics of nuclear reactors has set in. Almost every one of the projects that was talked about or asked for licences has been delayed, suspended, abandoned, or cancelled altogether.
What we've had here in the U.S. is a classic bubble with a promotional frenzy in the early part of the 2000s followed by a speculative surge and then the failure of the industry to live up to its promises about costs, something it has always had difficulty doing. Finally, the bubble burst with low-cost natural gas, declining demand growth, stable alternatives, and subsequent cancellations.
The long lead times of these reactors and high costs make them a uniquely bad investment to make in a period of great uncertainty. The simple fact of the matter is that what you want in uncertain times are investments that are flexible, let you make changes, don't sink costs, the antithesis of building large central station facilities. I have laid this out in exhibits attached to my testimony.
As bad as nuclear economics were in the recent past, I believe the incident at Fukushima will make them more difficult.
As you heard in the last panel, after an incident all the people with responsibility for various aspects of nuclear reactors have to step back and re-examine. Policy-makers would be irresponsible not to look at how safety standards are set and how the process is used to re-evaluate the cost-benefit of various alternatives. To consider gathering more information and slowing down is a good policy.
Safety regulators would be irresponsible not to re-examine safety, perhaps looking for more safety measures, which may lead to long lead times or the retrofit of existing plants. Of course financial analysts will have to look at the risk of these projects, whether they are more difficult to complete and whether they're less attractive than alternative options, whether they are less popular with policy-makers who will give them less support. As a result, the cost of capital will increase.
Cost escalation flows from the conduct of these complex plants. I looked at the U.S. before Three Mile Island, I looked at the U.S. after Three Mile Island, I compared that to the French before and after, and what we know is that nuclear construction had a cost escalation problem before Three Mile Island, it had a cost-escalation after, and the problem got a little worse after, because safety was an increased concern.
Some utilities will argue it is unnecessary, especially when subsequent events or incidents don't occur. But one can also argue that the lack of events is a function of taking proper account of safety.
I looked in my testimony at the occurrence of such events, not to predict when a future event will occur but to make it clear that these are possibilities. They do happen; they need to factor into our thinking; and inevitably they will have an impact on costs.
In the U.S., there was never any reason for the government to put taxpayers or ratepayers at risk when this nuclear bubble started to inflate. Instead, they should have listened to the judgment of the capital markets and let the technology be. If in the future it comes around, I'm a consumer advocate: I would be glad to support it if its costs would support it, leading me to conclude that it was the least-cost option to pursue. But the simple fact of the matter is that the economics of new nuclear reactors, certainly in the U.S., were bad before Fukushima and will be worse after.
Thank you for the opportunity.
Susan Reid
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Susan Reid
2011-03-23 15:34
Thank you very much for the opportunity to appear before you today.
My name is Susan Reid, and I am a criminology professor at St. Thomas University in Fredericton, New Brunswick. I'm also the director of the Centre for Research on Youth at Risk, which houses the eastern hub of the Students Commission of Canada and the Centre of Excellence for Youth Engagement.
I have been studying the impact of juvenile justice legislation since the introduction of the Young Offenders Act, so I've been looking at this over a few years. I hope that my comments will help you as you move forward in the promotion of progressive youth justice legislation in the years to come.
“Why would you ask me what could be changed about the young offender system? I'm just another guy in blue clothes.” This was a comment from a group of young men I went to speak to in our only closed custody facility in the province, the New Brunswick Youth Centre. I responded to this young man by telling him that I was very interested in what he had to say because I wanted to share his comments with those who were making changes to the legislation. I told him I believed that the Youth Criminal Justice Act valued young people in its philosophy and principles, and it was important that young offenders' voices be considered when the government deliberated changes to the law that would directly impact them.
I am here today to let that young man's voice be heard, and to provide you with some pause related to the research and evidence on some of the proposed amendments to the Youth Criminal Justice Act.
I had the privilege of participating in one of the national round tables hosted by the Minister of Justice in the summer of 2008. At that time, I expressed my sincere appreciation for the thoughtful work that had gone into the creation of the Youth Criminal Justice Act. This legislation, unlike its predecessor, showed young people across Canada that they were important, that they were to be seen as valued and contributing members of society, and that we as a country believe in the potential of all our young people. I think we took the lessons learned with the problems with the Young Offenders Act and tried to create a piece of legislation that would be progressive.
I am afraid that in the proposed amendments, with the introduction of deterrence and denunciation to the principles of sentencing, we are headed back to that time when we had the dubious honour of being the country with the highest youth incarceration rate in the world.
I am saddened by the thought of more young people being held in custody, when our research evidence shows that incarceration does little to reduce offending patterns of young people and in most cases increases the likelihood that a young person will reoffend upon release. I believe the impact of such policies will be felt most by our most vulnerable members in our communities: the poor, the disenfranchised, and our first nations youth. I am worried that the message we will be sending to young people, with such principles as deterrence and denunciation, will tell them they are “throwaways”—discarded because we couldn't take the time to apply evidence-based research and practice.
I was very critical of the Young Offenders Act for its lack of priority placed on the principle section. When we created the Declaration of Principle in the Youth Criminal Justice Act, we were clear: we created a sequential approach to youth justice, where we were going further and further into the system, so that we started with the diversion of young people for minor offences, giving tools to the police to be able to move forward, with more severe and serious interventions as we dealt with more serious young offenders.
The final layer in section 38 sets out the purpose and principles of sentencing that underscore the long-term protection of society—just sanctions that hold young persons accountable and promote reintegration and rehabilitation.
The most successful parts of the legislation are in the area of extrajudicial measures and extrajudicial sanctions. Young people and professionals alike applaud that area. A recent meta-analysis of 29 studies in the United States that included over 7,000 juvenile offenders over a 35-year period conclusively showed that the more that justice processing happens to juveniles, the greater the likelihood of recidivism. Our best response is what we're doing right now—diverting minor offenders out of the system.
I also think it's great that the RCMP has developed a national strategy in terms of providing their officers with tools to be able to use evidence-based practice to screen offenders when they come before them to see about their suitability to be referred to an extrajudicial program.
When I was consulting with the police over my report on extrajudicial measures, they did express concern to me about the lack of record keeping in terms of the number of times young people have been placed with an extrajudicial measure, and they really would like to...and will applaud your recommendation before us about keeping track of those records. I'm concerned about that because the young people who are being diverted out of the system are not in the system and shouldn't have a record at this point. But it's the least of my concerns with the proposed amendment, to be perfectly honest.
The importance of protecting rights under the Youth Criminal Justice Act is also underscored in the preamble to the declaration in terms of underscoring the UN Convention on the Rights of the Child. It draws attention to us as well about the value of diversion from criminal proceedings, looking at extrajudicial solutions, and ensuring that we look for social and educational interventions. We must remind ourselves of the Beijing Rules, which also guide our choices under the UN convention; they talk to us about using juvenile detention in an institution as a measure of last resort.
One of the problematic areas with regard to this CRC is the reservation that we've had under section 37, which allows us to house young offenders in adult institutions. In the province that I come from...I want to applaud the number of young people who have been removed from that institution. But when we had empty beds, they had to fill them, of course, because it's cost effective, and they've chosen, on a ratio of 5:1, to put adults in those cottages within sight of young offenders. That not only is in violation of the UN Convention on the Rights of the Child, but it also reduces the programming that young offenders are allowed to participate in.
I want to applaud the government's insistence on the proposed changes that youth under the age of 18 who were given a custodial sentence will serve it in a youth facility, and I want to draw your attention to subsection 93(1), which also talks about the fact that we can keep young people in youth facilities until they're 20. Both of these sections are definitely in keeping with the philosophy and principles of the YCJA, and we should really underscore that.
However, I don't like section 92, which talks about the ability to make an application to the courts if it's in the best interest of the young person and the long-term protection of society to transfer that young person to an adult facility. I very much believe if we didn't have that provision we might have prevented the death of one of our New Brunswick youth, Ashley Smith, who took her life in one of our adult correctional facilities.
A University of Pennsylvania criminologist was quoted in the media in the 1990s referring to young offenders as “super predators”. John DiIulio predicted that the crime wave of the 1990s was going to be much more serious, and super predator became the common term for referring to young offenders, with a flurry of very punitive policies in the United States around dealing with young offenders. More recently, he's expressed his regrets for the characterization of young people in an article he published in The New York Times, which I was pleased to see, where he acknowledges that his predictions about the growing threat of youth crime did not come to pass.
I'm worried that the government, with its proposed amendments, is falling into the trap of what happened in the United States in an effort to do something because we believe Canadians want something to happen, and that we gain our knowledge from the few sensational cases that draw utter disgust from the public. Moral panics, as we have seen through history, are transitory and will subside over time. This is not to diminish the pain and the anguish that is caused to the victims and the families of those who have had a horrendous incident happen to them. On the contrary, I really strongly believe in the value of making sure that we match our interventions for those young people who come before us in such a way that we know that we're basing it on evidence and that we're doing the best possible thing for our young people and for the victims and the families of those young people who have come before our courts.
We know from our research evidence that providing too high a dose of correctional intervention to low- or moderate-risk offenders will actually increase the propensity for crime. We must ensure that we continue to promote this evidence-based practice and the idea that we think about the proliferation of news stories and take them into account. That's the dose the public is getting about what we do with our young people.
The United Nations Convention on the Rights of the Child is very clear on the idea of privacy, and that we need to be thinking about not publishing names in newspapers. I'm nervous about the idea of lifting the ban on that, because I see that as in direct violation of the UN Convention on the Rights of the Child.
I'm also concerned about media attention and recent marathons on the A&E entertainment network on Beyond Scared Straight. They're publicizing a show that talks about a program that we know from academic literature doesn't work. The public is going to see that as something that is cost-effective and perhaps would help in terms of reducing crime by young people, but we know that--
Gordon Penner
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Gordon Penner
2011-03-23 15:57
Hi. Thanks for having me. I don't have a huge report like the other two. I haven't been in the business that long. But I will relay my personal story, and hopefully this will shed some light on where I'm coming from.
In 2006, my son Jesse, 20 years old, a Douglas College student, was murdered by a ten-time convicted young offender. Most of his offences were for violence. He was released to a family that was described in court as the mother having her issues and the father being indifferent. And lo and behold, no one came forward with information that we found on Google—the 18-year-old brother, who was a cocaine addict at the time, was also out on bail for murder, for a home invasion in Burnaby that he did with his cousin. They released this boy to the custody of that dysfunctional family.
When I read the sections under pre-sentencing detention in the Young Offenders Act, I believe the language is already there. Why wasn't it carried out?
I probably have more questions than I have answers, but I can tell you it's been a nightmare for us because nobody seems to want to talk to us about these issues. We find that very disconcerting, that nobody wants to talk about a mistake that happened through the system.
If these kids were being assessed and evaluated properly, then they probably would be detained as well; therefore I don't think we would have to start naming kids who are on the border, who might fall through those cracks.
This boy who killed our son...it was random. As a matter of fact, 90% of the people at this house party didn't even know this kid. I don't know that naming them is going to do anything. On the issue of privacy and not naming these kids, I don't think that naming them is going to be the answer. I know one thing: privacy under the youth policy is being used to stymie my family. I cannot get my provincial government to discuss these issues with me. They've told me that he was a young offender and they won't discuss his issues or his family's issues.
If we can't find out why this boy was released, and nobody will talk to us, and the laws that are in place are not carried out, how would I think this new bill would do anything to help us? You're talking to a skeptic, at best. We've been dragged through this quagmire. It's a nightmare. We've had no assistance whatsoever getting through this mess. It's been quite an experience for us to go through the system and see all the things where the system broke down and dropped my family on its head. I think that's a sad state of affairs and a black eye to the criminal justice system.
In order for me to be able to speak with my provincial government, I would have to hire a lawyer. I would like to know why I have to be able to afford justice.
This boy has a medical history, by the way, and I couldn't find that out until I went to his detention review hearing. He was hit in the head by a vehicle when he was 8 years old and he has major frontal lobe damage. He was hit again by a vehicle when he was 10 years old and had a second frontal lobe damage.
He had 10 serious convictions by the time he was 16. He was kicked out of school at the age of 11, for violence. He was refused entry into an outreach program because of his violence; he was 13 at the time. I don't know what he did between ages 11 and 13 as far as education goes, but you can't help but think that he would be on the radar. I'm sure that most children in this country who aren't in school at that age are on the radar. At 13, he was found in possession of a stolen car. At 14, he had arson, times two, without regard to human life. He broke a liquor store clerk's hand with a baseball bat. He smashed a kid on the neck with a two-by-four-sized tree branch, at a sky train station, to rob him.
Now, do you think there might have been a few hints of escalation there?
My family and I have sat and had very many cheerful discussions about these issues. As far as we can see, the language is there that could deal with these kids.
It seems that there's a lot of confusion right across the country on how this whole system works. There seems to be a lot of issues on interpretation by different jurisdictions. The victims are just the meat in the sandwich.
That's about all I can really say at this point.
Thank you.
Manjit Virk
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Manjit Virk
2011-03-23 17:22
Our story is similar to Bruno's story. Our daughter, in 1997, was killed by her peers and it made national and international headlines. That crime, especially in Victoria, a beautiful city...it was never heard of.
We as victims have suffered over 10 years of a legal ordeal and a quagmire, and we've felt that the system was too lenient for the criminals, especially when Kelly Ellard, who killed our daughter, got appeal after appeal. She exhausted all of her chances of appeal with the taxpayers' money and put our life on hold.
But we are glad that now the government is thinking of giving some attention to the victims as well, not only to the offenders, and I share my sentiments with Bruno that the law has to treat them like adults. If they are doing adult crimes, they have to be treated like adults. Also, when their names are published, people will know who they are so these young people cannot hide behind the law, because their slate will be clean no more.
We are involved with crime prevention in Victoria now. We go to different schools and communities and speak to the young people face to face, pleading with them to try to live a healthy, wholesome life, free from bullying and violence. It has an impact on people. I have also written a book that tells our story. We have developed a DVD, which focuses on young people, their violence and bullying, telling our story. So these are the tools that are very powerful, and I think it's making a difference in young people's lives.
We hope that we'll continue to do that and encourage our young people to inculcate good habits and live a wholesome life, rather than squandering their life on drugs, loneliness, alcohol, and bullying. In Victoria and in British Columbia there is enough awareness of bullying and violence now in the school system, and we are doing our part.
Now to my wife....
Suman Virk
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Suman Virk
2011-03-23 17:24
As victims of crime, we have found that there has not been enough emphasis on the crimes that are being committed by these young people and the impact on the general public. A lot of children were looking up to the two individuals who took our daughter's life. They have glorified violence by the video games and rap music, so we have to get to what is causing our children to be losing control.
Definitely, I think if we have legislation that addresses this problem, maybe our children will think twice about harming one another. I think we have to speak up, because that's what causes kids to bully. It's because everybody keeps their secret. So definitely I think if a child commits a serious crime, society has the right to know who they are so they can protect themselves. Keeping their identity hidden is not helping the child or anyone else. I think that should be mandatory for all youth who commit serious crimes.
What we've learned is that most of these children don't change. What they do as teenagers they continue through the rest of their lives, so definitely early intervention is the key, starting with programs for youth counselling. We see more and more people with depression and other mental health issues. That should also be addressed for our youth, not just locking them up somewhere, but also giving them the mental help and attention they need.
There's a big spectrum here, but since we're discussing the legal system, I think we do need harsher penalties. If I had it my way, I'd have the legal system go a lot faster, too, because, as my husband said, we have to go through three different trials for one crime. To us that makes no sense, so I hope that can also be addressed.
Thank you.
Kasra Nejatian
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Kasra Nejatian
2011-03-21 19:01
I, Kasra Nejatian, do swear the evidence I shall give on this examination shall be the truth, the whole truth, and nothing but the truth, so help me God.
Kasra Nejatian
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Kasra Nejatian
2011-03-21 19:01
Mr. Chair and members of the committee, thank you for giving me an opportunity to appear before you today.
Before I start, I'd like to wish you and all the members of the committee Nowruz Mobarak, happy new year. I wish you all nothing but peace and good fortune in the coming year.
If I may, I'd like to make a short statement, and then I will be happy to answer any questions you may have.
My name is Kasra Nejatian. Until March 3 of this year I was the director of multicultural affairs in the office of the Minister of Citizenship, Immigration and Multiculturalism. I began working for the minister in the second week of January of this year as a ministerial-exempt employee. Before starting work in Ottawa, I was a corporate lawyer engaged in private practice in New York city.
Allow me to give a brief outline of the events that have led to my appearance before you today. On March 3, I was asked by the minister to follow up on a conversation the minister had had with the members of the Alberta caucus of the Conservative Party of Canada. The minister asked me to reach out to various Conservative electoral district associations in Alberta to solidify their support for an advertising campaign that the Conservative Party of Canada wished to run focusing on ethnic communities.
I drafted an outline of a letter seeking such support and asked my administrative assistant to further edit the text and to print one letter addressed to each member of the Alberta caucus. Pursuant to the minister's instructions, I asked that this letter be printed on non-governmental letterhead.
It may be appropriate to take a moment here to discuss some clerical issues. As it turns out, the office of the Minister of Citizenship, Immigration and Multiculturalism at any time can stock at least five different letterheads. The first three of these I was well aware of. They are, first, the departmental letterhead used by the minister to send out letters; second, the departmental notepad used for handwritten notes within the office; and, third, the personal letterhead of Jason Kenney. None of these was used.
The office also, I learned recently, stocks from time to time two different parliamentary letterheads, one for printed letters and another for handwritten notes. It was the first parliamentary letterhead that was used for the letter that went out on March 3. It is possible the office stocks other letterheads as well. I am just not aware of any.
As events have shown, the letters I have spoken about were mistakenly sent to all Alberta members of Parliament instead of all the members of the Alberta caucus of the Conservative Party of Canada.
About two hours after the letters were delivered by two volunteers, I noticed that the leader of the New Democratic Party was asking a question in question period about these letters. Until this point I did not know that the letters were printed on parliamentary letterhead. Up until this question was asked, I was not even aware that the office maintained a supply of parliamentary letterhead. I had assumed that the only three letterheads in the office were the Citizenship Canada letterheads and the personal letterhead.
Before the end of question period on that day, I submitted my letter of resignation to the minister's chief of staff.
A mistake was made under my watch. It was a mistake made in contradiction of the minister's orders. The mistake was mine. I have taken full responsibility for it.
Before I take your questions, I'd like to take a moment to formally apologize. First, I would like to apologize to the minister for not taking the due care required to ensure that his instructions were followed.
Second, I would like to apologize to you and to all members of Parliament. This building is a place I've admired ever since I came to Canada. I became politically active when I was a teenager. I became active because I didn't speak the language and wanted to find a place where I could learn English and learn about Canada and its traditions. It wasn't long before I fell in love with this place, its history, and its traditions. That I have caused a violation of them is deeply embarrassing. It is also the biggest personal disappointment of my life.
Third, I would like to apologize to the taxpayers of Canada. You have been kind enough to share your country with me. I love Canada. Serving its citizens in this limited way has been the greatest honour of my life. I am deeply sorry that my carelessness could cause a further distrust in public institutions.
Thank you, Mr. Chair. I am happy to answer any questions that you or the members of the committee may have.
Thérèse McCuaig
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Thérèse McCuaig
2011-03-21 15:46
Good afternoon.
Thank you for having me.
Thank you for inviting me to appear today.
In 1995 my 17-year-old grandson, Sylvain Leduc, his two little female cousins, 16 years old, and Sylvain's friend were kidnapped from Sylvain's home by a street gang named Ace Crew. Of that gang, the five that I know of who were in court were young offenders. The others were 18 and over.
The youths were placed in the back compartment of a Jimmy van, beaten upon, threatened, and told they would be beaten so badly that people in Ottawa would be afraid to walk the streets, and they made good on their promise. They drove them a half-hour distance away. In that car, someone kept loading and unloading a shotgun over their heads, telling them they were going to die. “Today's Wednesday; today's a good day to die”, they told the victims. In that car was a 15-year-old who was the head of the gang. He was controlling the show. He was 15 years old.
When they arrived at the building, the victims were taken out one at a time. In that car was a 25-year-old, a 24-year-old, a 19-year-old; they were the bad guys who were going to show the young ones how you deal with people who have offended you. They were brought in one by one, but in that apartment, in all, there were 12 people.
When the victims were brought in one by one, it was the young offenders who opened the front door and immediately tied them hand, foot, and neck, gagged them, and blindfolded them. One of the children was placed in a closet where green garbage bags had been taped up and down the walls and on the floor, to put their dead bodies into. My grandson was dragged off into the master bedroom. Another boy was placed in the washroom, and another young girl was dragged into the master bedroom with my grandson.
They took turns, many of them--sometimes two, sometimes three at a time--beating Sylvain to death. While some were doing that, others were burning my niece with a curling iron set on high. They burned the back of her calves, the back of her knees, the back of her shoulders. Then they flipped her over and two of them removed her jeans, her panties, and two others held her legs open and a young lady held her head down while they violently raped her with this curling iron. The young girl passed out, and just as she came to, she heard Sylvain gasping for breath as he died.
A man who lived one floor down, thank God, had heard the children being taken in at gunpoint. He hid behind his curtain and waited until they were all brought in and he called 9-1-1. The police arrived, and when they did, all the accused ran--all 12 of them. The police managed, just through smart perception, to detain four or five of them in the lobby while the older ones ran.
It angers me so much to even think of this and to tell you this: the police would have arrived probably in time to resuscitate Sylvain, but those young people in the lobby refused to tell the police which apartment to go to, so it took 45 minutes for them to find Sylvain. By then, of course, it was too late.
The young lady was taken by ambulance to the hospital, where she remained for three months. The doctors did not know how to treat her, as they had never seen this before. A team of professionals was put together, and they managed to save her womb--her body, in other words. They saved her life.
The other young boy was in the hospital with a concussion and severe depression for a whole month. The other young lady went into psychiatric care, where she remains to this day.
These crimes were horrific, horrible, and shook up Ottawa for sure, most especially members of our families. Three families were affected. You can imagine the grief, the hate, and the rage.
I made it my business to attend court. I had to laugh when you mentioned that a judge had said that these people had never been in his courtroom. Well, I have been in a courtroom for the last 15 years. In our case it took two years to try everyone, or off and on, three years. After that I became a victims' resource person with the office of Victims of Violence. I've attended many court hearings, trials, preliminary hearings--you name it.
In our case, at the time the law said you could not...I am going to use the word “punish”, which was never used, as you don't punish anyone for committing crime: you deter them; you make an example of them, and so on. That's for adults. For the young people, I was told, the only thing the judge has to consider is their rehabilitation into society.
Oh.
I remember the day my daughter went to the funeral home to make arrangements for her son's funeral. She could not afford a nice fancy funeral, of course. I remember her touching this beautiful urn. She wanted that urn for her son so badly. Of course, we could not afford that urn. I was so enraged in that funeral home, thinking that those people should be paying for the funeral. They should be made responsible at least for the funeral, but there was no such thing.
In court we were given a form, a victim impact statement on how this crime has affected you. On the reverse side it asked if you were claiming for damages and so on. I said, “Yes, by Jesus, yes. I am claiming for a funeral. I am claiming for an urn. I am claiming for a telephone answering service which the people used to make threats to us in our home. I am claiming for changing the locks on the door”. It was never, ever considered by the judge, because, I guess, young offenders are untouchable. They don't have to pay anybody. They don't have to apologize. They could not even apologize in the courtroom.
Before sentencing, the judge asked them whether they had anything to say. They laughed at us throughout the trial.
It was there that I found out how, at the time, the Young Offenders Act worked over the years. I was stunned that young people can commit crime after crime after crime. It does not matter. They always get probation, more probation, and more probation. Until they physically hurt someone, there is no time in jail. There is no time in jail unless they've committed a violent act.
During our trial the mother of the 17-year-old girl who held the girl down while she was being burned came to court. She was a responsible mother, a good mother, who had been begging the police for three years to put her daughter in jail. She was uncontrollable and violent. She hurt people. The police kept saying to her that there was nothing they could do until her daughter committed a violent crime. Out of desperation the mother said, “Yeah?” She pushed her daughter around until the daughter broke her mother's arm and kicked her in the stomach. Finally, the mother had grounds to have her put away. Even then it was only for one week.
I remember very well that young lady was told to not be in the company of another certain young lady because she had a criminal record. That young lady breached and breached and breached that condition. She would actually attend court on those breaches with the same young lady.
She was 17 years old and she had a history dating back to age 13: trafficking drugs, beating on police officers, smashing the window in a squad car, spitting on officers, resisting arrest, and having to be pepper-sprayed to calm her down long enough to arrest her many, many times--and still they would only put her on probation. There was no deterrence, no accountability.
I'll tell you right now that what really angered me was that these children were not poor or living difficult lifestyles and so on. Some of the parents were schoolteachers, some were doctors, and yet you and I, ladies and gentlemen, paid for their legal aid. I said, “How do you explain that to me, when you have parents with such nice jobs and high incomes, and we are paying for their legal aid?” Once the parent washes his hands of the child, we have no choice. How wonderful.
I also found out, which again enraged me, that during their stay in jail—it took a year and a half to get the trials over with—they're allowed to collect family benefits, the baby bonus. I questioned that. I wrote to the people in charge, and they said, “Oh, yeah, well, until they're found guilty, they're allowed to keep this money”. The criteria for this benefit are that you live at home and go to school. They're living in jail and refusing to go school, and yet still they were able to claim that money, and every week they'd get an allowance if they had been good that week.
Christiane Ouimet
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Christiane Ouimet
2011-03-10 15:29
I, Christiane Ouimet, do swear that the evidence I shall give in this examination shall be the truth, the whole truth, and nothing but the truth. So help me God.
Christiane Ouimet
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Christiane Ouimet
2011-03-10 15:31
Thank you, Mr. Chairman.
First of all, Parliament appears to have accepted outright, without any dispute, the Auditor General's report. The simple act of my being here today to express my serious reservations may perhaps be viewed as being inappropriate, but the purpose of my statement today is specifically to point out the significant flaws and mistaken observations that undermined my reputation personally and that of my office.
I am pleased to be here to discuss a report that, essentially, deals with labour relations and four of my decisions. I will focus specifically on the four decisions mentioned in the report. I would also like to talk to you about the rigorous approach, control measures and very detailed procedures that were implemented under my leadership.
To the members of the committee, I would explain that I have spent eight years serving Canadian public institutions. I myself have made decisions as part of an administrative tribunal, I have managed commercial fraud programs throughout Canada and I have led audit teams to improve organizations. When I was with the Immigration and Refugee Board, I developed the chair's plan to eliminate a backlog of 55,000 files. I received the honorary title of chief of aboriginal police in acknowledgement of my leadership. As the Associate Deputy Minister for Public Works, I reorganized a department of 14,000 employees at a time when the sponsorship file was an issue. I went back to my roots, at Agriculture Canada, to help needy farmers.
In 2007, with the support of the two Houses, I accepted the position of integrity commissioner. Today I am very proud to say that I have left behind a professional institution that has expertise in administrative investigations that is unique in Canada and has a staff of very high calibre individuals. When I left my position, 15 serious investigations were under way.
I must say, unequivocally, that I have serious problems with the report, which must be read bearing in mind the terms of reference that I will explain to you.
We took the legislation the way Parliament has given it to us. We took a very complex piece of legislation, and I had to institute an organization able to deliver the very complex mandate and have the procedures and the level of controls in place. I have produced a document at l'Université Laval that gives the genesis of the office, the complexity, the challenges.
Essentially, the act prohibited us from intervening if there was another process ongoing. We weren't there as a replacement of another organization or to implement court decisions. We were also limited in our action if there was a venue more appropriate. We had official languages complaints, we had privacy complaints, but we sat down with the appropriate jurisdictions—and rightfully so—if they said this was their jurisdiction.
We also had a long list of criteria to examine—good faith, whether it was sufficiently important—but in the end, we dealt with the disclosures that came to us, the reprisals, in addition to more than 100 disclosure regimes across Canada.
I should add as well that I think there's a profound misunderstanding of the work we were doing. The roughly 200 cases that keep being referred to were in fact subject to very extensive probes, what is called pre-investigations. In fact, my former deputy commissioner, who is an expert in administrative law, looked at the legislation. We had a duty of fairness to ensure that we did not prematurely launch an investigation and affect the reputation of people who are accused and raise expectations.
Essentially those probes involved interviews, documentary evidence, analysis of facts. We spent weeks, months, and occasionally years to look at those probes, and every one was documented thoroughly. At the end of the day, I am proud to say that there was consensus in all of the cases brought forward. I never had to overturn a single decision or recommendation.
I also implemented, from the first day I arrived, procedures to deal.... I fundamentally disagree that there were no procedures. I understand, Mr. Chair, that you got reports of all the procedures that were prepared by the institution. I haven't received a copy, but I'll give you just one example.
On December 13,
the procedures guide was completed.
It was very extensive, and while it carries the word ébauche, right in the body of the document it says:
“The rules contained in this guide are provisional.”
The “provisional” is because you have to gain experience.
Based on my extensive experience in managing investigations, the first thing you do is you have your rules of practice. We have checklists for every reprisal case because this was our exclusive jurisdiction. We had org charts. We had tracking systems. We also had, at my request, operational procedures developed. I hired a former senior official from the RCMP who had extensive experience in managing the policy that proceeded from my legislation. We had in fact consigned to that procedure a number of policies. For instance, how do you deal with senior officers? What are the timelines? Essentially, there was just about every possible tool that could be used. As I was leaving, similar to what I had done at the Immigration and Refugee Board, we had the mapping of how decisions were made and all the cross-checks that were done.
In addition, after decisions were made, I had quality control by my deputy commissioner, and also a former DG of audit, who did the review for file completeness. As a result of legal services reviewing files, we reopened the file, because we're not above making mistakes, but we wanted to make sure the process was solid.
One other major misconception: the tribunal. It was still early days, but I delegated under the act the review of every single reprisal case to my deputy commissioner to ensure that we had looked at them very carefully. There's a very stringent test under the act. There has to be a link between the reprisal and the disclosure. In the end, no cases met the test, but there's also one other important factor, and it's called conciliation. Under the act, conciliation is one of the venues that Parliament has given us. Most parties would prefer an informal conciliation process in order that their identity not be disclosed in front of a public hearing by the tribunal.
We compared very well. On checks and balances, I would refer to my presentation. Given that this is the accounts committee, we have exemplary financial controls and governance systems.
Very quickly, about human resources, when I took over, I inherited an administrative unit that had been operating for five years with its own way of operating. I was told that a few players were not very eager to have my leadership. In fact, there was somebody acting in the job who was very disappointed. And I was told in June that no briefing material would be prepared for me in August. The complainant who has gone into the news has indicated he became very furious on my appointment, regrettably. He refused to provide any information of substance on the investigations he had conducted previously and those that were before our organization. He had been promised an executive position without competition, like others. I must say that some members were very professional and very helpful. But at the end of the day, as a result of an exchange requesting information, he left, and the performance issue became a big concern. I could not give him performance...based on the advice of the human resources agency.
David Grossman
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David Grossman
2011-03-10 13:19
Thank you very much.
Distinguished members of the committee, I would like to sincerely thank you for this opportunity to testify before you. I believe everyone here today is aware of the significance of the matters that are being considered by this committee. A brief overview of my comments today has been distributed.
I am a Montreal lawyer with Osler, Hoskin & Harcourt. I am a member of the Quebec bar association and the Ontario Bar Association. I currently teach a course on evidence law at McGill University. Over the course of my career, I have had the privilege of working with the honourable Justice Michel Bastarache, when he was a justice of the Supreme Court of Canada, and with the honourable Irwin Cotler, on issues of human rights, including issues relating to state immunity. Today, I am a prosecutor for the Canadian Centre for International Justice in the case of Kazemi versus Iran. I must point out that I am appearing today as an individual, not as a representative of any of these organizations.
In a handout I have distributed to this honourable committee, I have highlighted three premises that I would like to look at as the points of departure in our examination of the implications of the State Immunity Act. I believe these premises are relatively uncontroversial.
The first is that we have faith in our judicial system to deliver justice to Canadians and to litigants generally who come before our courts. Around the world, our courts are recognized as bastions of fairness and impartiality, and with good reason. Moreover, I'd like to stress that there are procedural mechanisms allowed to all defendants in our courts to summarily dismiss abusive or unfounded motions or claims against them. These need not be restricted to cases of foreign states; these are available generally to defendants. They're part of the fairness and the tenor of our judicial system generally.
The second premise is that absolute immunity is not the law in Canada. The Supreme Court recently had the opportunity to opine on this specific point in the Kuwait Airways decision. As stated in paragraph 24 of that decision, the State Immunity Act represents a clear rejection of the view that the immunity of foreign states is absolute. Therefore, the premise upon which we are embarking in this study, the premise upon which we build in looking at the implications of the State Immunity Act, is that absolute immunity for foreign states does not exist.
The third premise is that torture, genocide, crimes against humanity, and war crimes, in other words, the crimes that are treated under Bill C-483, are particularly heinous offences, and our government should not be turning its back on the victims of these offences. When I speak on this point, I speak at a moral level as well as at a legal level.
Legally speaking, Canada has international obligations with respect to torture, genocide, crimes against humanity, and war crimes. All these crimes are clearly prohibited by customary international law. As you heard Professor Larocque mention, measures have been taken with respect to some of these crimes in the criminal sphere by Canada. I'd like to stress that internationally, under such instruments as the United Nations Convention Against Torture, Canada has specific obligations in the civil sphere as well. Article 14 of the United Nations Convention against Torture states:
Each State Party [which includes Canada] shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible.
Taking this third premise, the moral and legal obligation on Canada not to turn its back on victims, we arrive at the substance of my presentation, which is, what can we look at in the State Immunity Act and its implications in terms of these crimes? That brings me to lend my full support, and to ask this honourable committee to lend its support as well, to Bill C-483. From this perspective, we can look at Bill C-483 as not only a just measure, but indeed in many ways a conservative measure, addressing the issues of state immunity against the backdrop of impunity, against the backdrop of the most heinous crimes known to humankind.
I believe it is properly the role of Parliament to address this point through legislation. Indeed, as Professor Larocque has stated, to the extent the Canadian courts have opined on this issue and found that state immunity exists in these areas, they have been doing so on the basis of the State Immunity Act, and on the basis that they believe they are representing the will of Parliament.
I would respectfully submit that it was not the will of Parliament to address the impunity of foreign states in this regard. However, from an international perspective, we see the development as well as the general premise of civil law countries, through their partie civile system and through decisions such as Professor Larocque mentioned in Italy, that immunity, even in the civil context when it comes to torture, genocide, crimes against humanity, and war crimes is something that international law no longer accords. Immunity in these aspects, if it is being granted by Canadian courts, is only being granted on supposed reliance on the State Immunity Act. In that regard, we believe there is both the legal and moral imperative for this committee and for Parliament generally to act with respect to Bill C-483.
The State Immunity Act, simply put, is an enactment of Parliament, and it should not be used as the basis for perpetuating an injustice against victims. In this regard, the bill can be seen as no more than an exception to an exception. It is, in limited circumstances, what would allow an apparent impediment, according to certain jurists, of the State Immunity Act and to allow justice to proceed in the context of our recognized and fair legal system.
Moreover, Bill C-483 respects the role of private litigants. Litigation is a very difficult process, and I venture to say especially so with respect to victims of crimes such as torture or genocide. From the financial and psychological perspective, litigation is difficult. Bill C-483 does not lessen that burden for litigants. Moreover, it does not force the Canadian state to take positive steps towards bringing foreign perpetrators to justice. It simply allows victims of these heinous crimes to allow the natural course of the justice system to run its way. It simply removes an impediment for the victims of these crimes, to the extent the State Immunity Act can be said to create that impediment in the first place.
Simply put, I would state that foreign states accused of committing genocide and other heinous crimes should be treated no better than other defendants in our justice system.
Bill C-483 does not do many important things. It does not accord further territorial or personal jurisdiction to Canadian courts. To the contrary, it specifically prefers remedies that would be taken in domestic courts of these foreign states. It does not expand the territorial jurisdiction of Canadian courts in this regard, and it does not break new ground, either from an international perspective or even from a domestic perspective.
The State Immunity Act already recognizes that exceptions to immunity exist and that absolute immunity is not the rule in Canada. In other words, what we are looking at here is an exercise in line drawing. We are not seized with the question of whether immunity for foreign states is a good idea. That type of absolute immunity has already been rejected by Parliament and by the courts, and internationally.
The question we are dealing with is where to draw the line. I would respectfully submit the proper place to draw the line is not where it would doubly victimize victims of torture, genocide, crimes against humanity, and war crimes. I would respectfully submit to this honourable committee that support for Bill C-483 is something that would advance the law in Canada and would ensure that justice would be served, and that defendants that are foreign states accused of heinous crimes would not be given undue privileged treatment under the law.
I would welcome your questions in this regard. Thank you very much for the time you've accorded me.
Michael G. Woods
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Michael G. Woods
2011-03-10 10:11
My name is Michael Woods. I'm a trade lawyer at Heenan Blaikie just down the street here on Metcalfe. That's why I'm here--because I'm just down the street on Metcalfe. The person you really wanted to hear from, Professor Todd Weiler, my good friend, wasn't able to make it from London because of the weather. He sends his apology.
I won't make a real opening statement. I'm just here to explain that I'm pinch-hitting and that I wasn't involved in the case on either side. I can answer questions to the best of my ability. I haven't delved into the case in any great detail. We in the trade bar, of course, follow these different chapter 11 cases.
I'm very interested in the federal-provincial aspect. I'm very interested in the questions of how people perceive the NAFTA going forward. I'm very interested in the idea that we should not consider ourselves being at a fixed point. It's awfully hard to open trade agreements and amend them, and the danger of doing that—and we've had those discussions before about NAFTA—is that you could lose the whole agreement. I think there's a trade-off in terms of the NAFTA, and indeed NAFTA chapter 11, and it would be a bad day if we had to tear up the whole agreement or if it were to be de-liberalized, let's say.
That said, I think there's lots of scope and lots of room for administrative mechanisms and ways to approach trade as we're going forward.
I'm proud to say that my firm advises the Government of Quebec in the Canada-EU free trade negotiations, and in that context I believe we are seeing more involvement. I'm not directly involved in those discussions--it's Pierre Marc Johnson and Véronique Bastien of our Montreal office--but I see more and more interchange between the provinces and the federal government as we move forward with these trade agreements, because there's a recognition that the trade agreements affect provincial jurisdictions as well as federal and that there's a lot at stake.
It's not a one-way situation. The reason we have the aspects of chapter 11 and investor-state dispute settlement, which is the big issue, is that it's a mechanism that's 100 years old and has been protecting Canadian, European, and American investors all around the world. It's something we seek to protect our investments.
Trade works as a two-way street. Countries that were the developing countries that we wanted protection in are now countries like Brazil, which are investing huge amounts of money in Canada. The investment between the United States and Canada is huge. I don't have the statistics with me, but there's this added protection.
Obviously I have a vested interest. I've been counsel on NAFTA cases. I've been co-counsel with Todd Weiler, so I have that particular point of view, but I think that progress can and should be made on the federal-provincial aspects. It is possible and it's doable.
Finally I'd like to say that having just come in as a pinch-hitter and looked through the case very briefly, my view is.... I've worked at the trade law division. I was there when we negotiated the NAFTA. I was there when we negotiated the FTA. I was there during the Uruguay Round. I'm not that old, so I wasn't there during the Tokyo Round, but I've been there: I've acted on government teams defending and I've acted as claimant counsel.
The only documents I have are the claim for arbitration, the notice of intent, and the claim itself. I know the lawyers on both sides. I think the lawyers took a calculated view of the situation, and they came out with a settlement. I can't comment on the politics of the settlement and I can't comment on how the situation came to be where it was, but if I were sitting there as counsel on either side, I would think that the deal that was struck would be a reasonable one. If I were sitting with the trade law division going back to government, or if I were advising AbitibiBowater, I would say that there would be risks in going forward and that this is a settlement we can live with.
As to the other related elements, I don't have a clear picture of what was going on because I wasn't involved. Perhaps that allows me to speak more freely; I am speaking today as an individual. However, I can tell you this: if you have a hard question and you get two answers from two different lawyers, as you were saying, I have with me Alexandra Logvin, who joined the firm as a student working on a NAFTA chapter 11 case. She has great experience in international arbitration. She's worked with the federal government as well. She worked on the UPS case. She's worked with us and with Todd Weiler on claimants' cases.
That includes, I must tell you, for those of you who wonder about the balance of how the NAFTA could work, that I'm proud to say that we fought for the feedlot operators of Picture Butte and Lethbridge and so on when the border was shut because of BSE. We took a case forward for individual cattle lot operators, and we consolidated the case.
So it's not just about big corporations suing or making claims against the government; the tool can be used by anybody who has an investment. One of the problems, frankly, and one of the things that I would like to see would be more empowerment for individuals, for corporations, to be able to take on governments directly, at their own expense, and to find ways to set up tribunals so that they're less ad hoc and more cost-effective--and therefore less costly--for individuals who should be able to take on countries that are harming their investments or their trade rights, just as you can sue the government in Canada.
I said I wasn't going to make an opening statement, but if you put a lawyer in front of a mike, that's what happens.
Nicholas Bala
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Nicholas Bala
2011-03-09 15:51
Thank you. It's a privilege to be invited back here. I was here last June and I presented a brief, and I understand you have copies of that brief. Having been here before, I will say a few words by way of introduction.
I am a law professor, and I specialize in a range of issues related to families and children, including young offender issues. I've probably written more about youth justice issues than any other law professor in Canada; there are others who have written more from the point of view of other disciplines.
I agree it is an appropriate time to look at the act and make some amendments to it. However, I do not agree that there should be very substantial amendments. I think that while youth crime is understandably a serious problem, the legislation can only have a limited impact on youth crime. In fact, the youth justice system can only have a limited impact on youth crime.
Largely I think the legislation has been a success, or at least a qualified success, in that the rates of use of court and custody have gone down, as we've heard. Youth crime has not increased. We have achieved both a significant financial saving and a significant saving in terms of human resources.
I worry that the thrust of some of these amendments will be to increase the use of courts and custody, and that will increase financial costs, though I should say not to the federal government. Unlike some of the other changes in the criminal law where the federal government may pay for part of the cost of incarceration, this is totally placing the burden on the provinces. I worry about that.
Having said that, I think there are some good provisions in this act. We've heard about a number of them. Certainly there's the introduction of the concept of diminished moral accountability. In proposed subsection 29(2), I think the issue of pre-trial detention is extremely important. In fact, since I submitted that brief, we've had more recent data. You'll hear from Statistics Canada that we send more young people into pre-trial detention than we do into custody. It's a bigger issue now than the use of custody.
One of the problems with sending young people into detention is that their rehabilitation is very difficult to undertake. They're suddenly put in detention where there's limited programming. There is greater potential for abuse from other inmates, less access to programming, and higher levels of suicide and mental health problems. It's a very significant concern.
Having said that, I view proposed subsection 29(2) as somewhat narrowing; it clarifies the law in this area. Probably on balance it's an improvement over what we now have, but I would submit that subsection 29(2)—and I'm sure in your questions we can talk about it—is actually going to narrow the scope for using pre-trial detention from what it is now.
I will refer to two parts of the act where, along with my colleagues here and elsewhere, I share great concerns. One is about the introduction of deterrence and denunciation into the principles of the act. I think it's important that we have a youth justice system that deters young people from committing offences and holds them accountable—and, if you want, from the point of view of colloquial speech, “denounces crime”. But if we use the words “deterrence and denunciation” and put them in the act, the message to judges is to send more young people into custody. That will be its only effect. Unfortunately for the young people who are committing offences, the reality is they are not considering the consequences of getting caught. They are not thinking that the sentence Parliament has imposed is going to go from four months to six months for this offence.
Increasing sentences will not have any impact on their behaviour. There's a huge amount of research that shows that increasing the severity of youth sentence does not affect behaviour. On the other hand, putting those words into the act will affect judicial behaviour, in particular with increased sentences. I'm concerned about that.
On the issue of publicity...and one can understand the point of view of the public, let alone the victims, who say, “I want some accountability here. I want this young person to be held accountable, and I want to know that he or she is appropriately shamed.” Unfortunately, the reality is that if we put their names in the newspapers—there is experience with this in the United States, where they do allow publicity—the offenders go around saying “Look, I'm the toughest guy here. I'm in the newspaper.” It doesn't affect their behaviour, but it does make their rehabilitation much more difficult. It stigmatizes their siblings and their parents. It does not have the kind of positive effect on reducing youth crime that one might hope.
In other words, we have to have a sophisticated, thoughtful, research-based response to youth crime if we want to have a safer society and not do things that might intuitively but in an uninformed way be a response to youth crime that may actually lead to a society where there is an increase in youth crime.
We want to have changes in the act that are smart changes that lead to a safer society, not changes that are, if you want, dumb changes that lead to an increase in youth crime and a society that has more problems with youth crime.
I will end there. Thank you.
Ivan Fellegi
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Ivan Fellegi
2011-03-08 15:41
Thank you, Mr. Chair.
My position is well known, but I would like to reiterate it briefly. First, the census is enormously important, and the national household survey, whatever its name, is part of the census.
Why is it so important? Because many of the most significant national issues can only be assessed by it: from the progress of aboriginal people in catching up in education or living standards, to the impact on different groups of people of the 2008-09 financial crisis, the living standards of the elderly, the position of minority languages, the economic integration of recent immigrants, and so on, this is part of our regular national stock-taking. Indeed, some would say it is a critical part of the democratic accountability of governments at all levels.
Second, it is my professional assessment and that of the Statistical Society of Canada, as well as of the American Statistical Association and the French professional statisticians, that a voluntary national stock-taking could be deeply flawed. This cannot be proven scientifically. Indeed, it is conceivable, though hardly credible, that all those who choose not to respond to the survey are exactly like those who choose to respond.
However, in a practice extending over 50 years, I have never seen a study investigating the characteristics of non-respondents that would have concluded they are like the respondents on all the wide range of variables that are collected by the national household survey. I'm certain that the reason my professional colleagues in Canada, the United States, and France have felt compelled to write about our voluntary census is that they have not seen examples of such incredibly fortuitous behaviour either.
My third reason for being here is that most questions of interest are intrinsically relative, that is, they relate to the evolution of different groups over the medium and the long term. Indeed, my earlier examples are all of this character. Whether the aboriginal groups are catching up, whether recent immigrants are doing better or worse than earlier arrivals, whether the situation of minority languages has improved or deteriorated relative to 2006 or 2001, and so on.
If people behave differently as a result of the long-form census being voluntary rather than compulsory, then all these comparisons will be rendered potentially invalid. Since most variables change relatively slowly over time, the impact doesn't even have to be huge for us to be unable to differentiate between real change and illusions created by creeping biases.
Fourth, I'm here because I want to underline once more the fundamental difference between bias and sampling error. If we had a proper random sample and enumerated successfully most of those selected, our error due to having enumerated fewer than 100% of the population can be estimated. By contrast, it is exceedingly rare that bias can be estimated. The significantly lower response rate we can be pretty sure will be present, but we would normally have no idea even of its direction, let alone its magnitude.
That is why I referred to biases as “pernicious” when I testified last time. And that is why increasing the sample size from one in five to one in three solves the minor problem, but leaves the elephant in the room unaddressed.
My last point is to underline that nothing I've said is a criticism of Statistics Canada. I'm convinced they will do everything in their power to have as successful a survey as possible under the circumstances.
They will probably do better than almost anyone could have done under the circumstances, but we cannot expect miracles. They have an incredibly difficult task in front of them, not only to collect the best possible data, but subsequently to provide usable guidance to their hundreds of thousands of users about which data are likely to be relatively safe and which should carry the equivalent of what chemical companies label with crossbones.
With all my heart, I wish for them and for our users that my forebodings should all miraculously turn out to have been utterly wrong.
Thank you.
Russell McOrmond
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Russell McOrmond
2011-03-08 11:21
First, I offer my condolences to Gordon Brown.
If you have my brief, you actually have a partial transcript of what I'm about to say.
My name is Russell McOrmond. I'm the policy coordinator for CLUE, the Canadian Association for Open Source. I'm the co-coordinator of an organization called “Getting Open Source Logic INto Governments”. I'm the host for Digital Copyright Canada, which uses the domain name billc32.ca. I'm an independent software author and a technical consultant.
I coordinate a few petitions that have been tabled in Parliament. There's the petition for users' rights, which has had nearly 3,000 signatures tabled, and a petition for information technology property rights, which has had nearly 400 signatures tabled.
But I am here today as an individual. I do not envy you the job that is in front of you. Copyright is as complex as tax law and, as is the case in tax law, there can be both too little and too much. I have often said that copyright is to creativity as water is to humans: too little and you get dehydrated and die, too much and you drown and die.
A bill dedicated to the ratification of the 1996 WIPO treaties would have been complicated enough. The bill before you is an omnibus bill that includes many unrelated topics and it is unlikely you will have the time to adequately study the impacts of all of these topics.
Even though the bill has been passed at second reading, topics that are outside the bill have continued to be included in presentations and questions. I have created a set of frequently asked questions and answers at billc32.ca/FAQ. While I offer commentary and alternatives to many of the policy positions within the bill as well as topics outside the bill, today I must focus on my primary concern, which is information technology property rights. I have some props that I use. I've been doing this presentation for a few years.
I'm holding up four things. In one hand, I'm holding a DVD, which represents two things: some copyrighted content and the tangible medium it is stored on. These two things can have two different owners, and the rights of each should be respected. In my other hand, I hold some digital technology. It's my Google Nexus One phone, which represents hardware and software. Again, these can have two different owners: the copyright holder of the software and the owner of the information technology.
While you have been told that technical measures are entirely a matter of copyrighted content, real-world technology works quite differently. It is not possible to understand the impact of Bill C-32 in real-world scenarios without a better understanding of that technology.
On the content side, it is possible to encrypt content such that it can be accessed only if you have the right keys. I have here one example of an access control.
I discuss in my Bill C-32 FAQ how access is a novel concept in copyright, and how protecting access and access controls effectively creates an opt-out of the rest of the Copyright Act for those who make use of access controls. I also discuss how legal protection for access controls in copyright law can be abused to circumvent the traditional contours of contract, e-commerce, privacy, trade, and consumer protection and property law.
Content cannot itself make decisions such as whether it can be copied or how many times, or any of the other things that copyright holders might like to encode in their licence agreements. Content alone cannot make decisions any more than a paperback book is capable of reading itself out loud. Any decisions that are made are encoded in software that runs on computing hardware. What are often called “use controls” in the context of copyright are nearly always software running on computing hardware.
It is critical, therefore, to think not only about the interests of the copyright holders of content, but also about the interests of software authors and the owners of information technology.
I am a software author. Before copyright can offer me anything, I need to ensure that the owners of technology have the right to make their own software choices. If they are not able to make their own software choices, how can they possibly choose my software? This means that IT property rights, including the rights of owners to make their own software choices, are far more important to software authors than copyright.
Let's talk about some real-world technology examples. This DVD here has an access control applied to it--notice that I said “access control”--called “the DVD content scrambling system”. The keys for this type of digital lock are managed by the DVD Copy Control Association. It is important not to let the title of the organization confuse you into thinking that this is a copy-control or a use-control technical measure, as it is not. The DVD Copy Control Association is an association made up of major studios, major hardware manufacturers, and major software vendors. This organization negotiates what features will be allowed in hardware and software that will be given keys capable of unlocking the access control applied to the content. It is the contractual relationship between these major vendors--not copyright--that this access control is protecting.
If you are a competitor of the members of the DVD CCA, or for any reason cannot sign on to their contractual obligations, you will not receive the keys to encode your own content or decode content. It should be reviewed by the Competition Bureau to determine whether such contractual obligations should be allowed. Tying the ability to access content encoded with DVD CCA keys requiring a DVD CCA-approved access device seems like a textbook example of “tied selling” under section 77 of the Competition Act.
Any time you hear the word “lock”, you must always ask who manages the keys. It is not the owner that is in control but the entity who manages the keys. In most real-world examples of technical measures, copyright holders do not control the keys to locked content. They are sometimes but not always given the choice about whether it is locked or not, but not much control beyond that. In the case of locks on hardware and software, the keys are specifically denied to the owners of the hardware. The purpose of the lock is to lock the owner out of what they own.
For no other type of property would this be considered. We would never legally protect non-owner locks to all guns in a country where many are uncomfortable with the mere registration of long guns. We would never legally protect non-owner locks on our homes, alleging it was necessary to protect the insurance industry from fraud. We would never legally protect non-owner locks on our cars, allegedly to ensure that automobiles could never be used as a getaway vehicle.
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