Amici Curae: Canada Fights Human Trafficking, Privacy vs. Freedom of Expression and Another Chapter in the Luke Magnotta Horror Story
Canada Commits to Fighting Human Trafficking
As a result of mounting international pressure, Canada has finally agreed to take action to combat human trafficking. The announcement was made on Wednesday in Ottawa by the Public Safety Minister, Vic Toews. According to Toews, it has been in development in years. Since 2005, provinces have been developing a strategy to combat this “despicable crime.” Toews claims that this new initiative will be “coordinated,” as in, a more comprehensive action plan that involves police, national and international partners. The Royal Canadian Mounted Police (RCMP) and Canada Border Services Agency will spearhead the initiative. In addition to manpower, the government promises to boost research and information-sharing on trafficking; human trafficking is a crime that is often kept underground, involving shadowy dealings among pimps from different geographic areas.
For this reason, human trafficking remains an underprosecuted crime. In Canada, the RCMP is aware of only 23 Canadian cases in which charges were laid and accused have been convicted of human trafficking or other related offences. Because the victims are often underprivileged and even underage, they are often too fearful to come out to police officers. Pimps have an easier time bringing in johns and, ultimately, profits as a result of the Internet. (See my recent commentary on the legal action taken against Backdoor.com in the US here and here). Together, these forces create an even more dangerous world for desperate young girls – even Canadian girls.
Even though the government should be applauded for fighting this crime, some wonder if our energies are being focused in the right direction. The overall effort will cost taxpayers around $25 million dollars. There may be a more cost efficient and arguably more effective way to bring these exploiters to justice. Some commentators believe that we need to be more alert to what is happening in our own community. Human trafficking is not always sex-related. Often, it comes in the form of criminal labor conditions (i.e. domestic workers). Sgt. Marie-Claude Arsenault, who is the spokesperson for the RCMP’s human trafficking national coordination centre, underlines public education, as the public is able to notice happenings in their community better and sooner than any police force. Her hope is that human trafficking can be stopped before criminal proceedings need to begin.
The War Wages On: Privacy vs. Freedom of Expression
Jill Clayton, the Privacy and Information Commissioner, announced Monday that she plans to appeal the Alberta Court of Appeal decision in United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130. In that case, the court ultimately found that freedom of expression trumped privacy.
(A case comment on Alberta court’s decision can be found here.)
To summarize briefly, union workers at a casino, the Palace, went on strike in 2006. The union videotaped individuals crossing the picket line and threatened to publish the videos on the website, www.casinoscabs.ca. Despite not having their images uploaded to the site, individuals who were found crossing the picket line complained to the Privacy Commissioner’s office.
After an initial inquiry, the adjudicator found that they could not collect and use the recordings – so, privacy won. The union appealed. The lower court sided with the union, upholding the union members’ freedom of expression. After another appeal, the Alberta Court of Appeal found that the Personal Information Protection Act, SA 2003, c. P-6.5 (PIPA) infringed the Charter right to freedom of expression; it was overbroad and was therefore rendered unconstitutional. It looks as though freedom of expression prevailed. But the decision was read extremely narrowly, deferring to the legislature to make the requisite changes to the PIPA to ensure Charter compliance.
While PIPA is a piece of legislation from Alberta, Clayton explained that the decision “has broader implications for substantially similar legislation across Canada.” It looks as though the Supreme Court of Canada will have the last say. If they do not grant leave, then the Alberta decision stands; if not, then the war wages on.
Now, Luka Magnotta’s Online Host Could Be Liable As Well
Just when it looked like the Luke Magnotta murder story could not get any more interesting from a legal perspective, it did. Now, the courts are faced with deciding whether or not the website that originally hosted Magnotta’s grisly video can be held liable for obscenity.
Charges of obscenity could be laid on the Alberta-based parent company of the website, with particular emphasis on the site’s initial refusal to take the video down. Some additional factors may be important. For instance, the owner eventually took it down, careful to the video down on his own terms. He claims to be responding to the viewers of the website. Further, the owner, Mark Marek, claimed that he was performing a public service by “vividly displaying the consequences of violence” to his audience. He even goes so far as to claim that this shocking video was instrumental in Magnotta’s capture. The prosecution disagrees entirely. Their counterargument is that the “harm-based” content in the video could be grounds for considerable liability under the charge of obscenity, especially if the harm is found to be widespread enough to hurt society.
Another legal issue is whether the freedom of expression can be balanced against the protection of society from harm. Similarly, the court will need to consider whether real-life violence constitutes educational news and information. These are some very weighty issues in a case that has already weighed on the consciousness of the country and on the world.