Amici Curiae: Deporting Mugesera, Responding to the Securities Reference, Mandating Condom Use and Reflecting on SOPA

A Long-Awaited Departure

Twenty years after arriving in Canada, and seventeen years after his initial deportation order, Leon Mugesera is back in Rwanda to face a slew of charges stemming from comments he made that allegedly sparked the beginning of the Rwandan genocide in 1994. Mugesera sought refuge in Canada in 1992 after being charged with inciting hatred in Rwanda for a speech he made suggesting that the Hutu majority exterminate the Tutsi minority in the country.

Mugesera’s exhaustive legal battle illustrates the expansive nature of the appellate system in Canada – he managed to avoid deportation for nearly two decades despite a Minister of Citizenship and Immigration ruling that he be deported in 1995. During this time, the initial ruling was overturned by the Federal Court of Appeal (see [2004] 1 FCR 3) and subsequently appealed to the Supreme Court of Canada.

The case reached the Supreme Court of Canada in 2005, which overturned the Federal Court of Appeal decision and reinstated the initial deportation order (see Mugesera v Canada (Minister of Citizenship v Immigration), [2005] 2 SCR 100). However, legal posturing and appeals to international bodies, including the UN Committee Against Torture, delayed the outcome until just three days ago.

Mugesera was able to remain in Canada due to Canada’s policy to avoid extraditing individuals who may face torture or the death penalty. However, the Rwandan justice system had improved since the time when the deportation order was made and his last ditch effort to have the order stayed fell on deaf ears in the Quebec Superior Court.

The culmination of this long legal battle illustrates the potential pitfalls with Canada’s extensive appeal system. But it also opens the doors for other Rwandan war criminals residing in Canada to be sent back to their home country to face justice.

The Fed’s Response to the the Securities Act Reference

On the heels of the Reference re Securities Act, 2011 SCC 66, the Canadian government has scrapped plans to create a national securities regulator, respecting the court’s decision that securities regulation is not a valid exercise of the federal power to regulate trade and commerce and is thus within the constitutional realm of the provinces.

In the Reference, however, the Court was very careful to leave some room for federal government regulation of financial markets, promoting “cooperative federalism” and permitting the federal government to exercise jurisdiction over “genuinely national concerns.” The federal government plans on moving forward with this cooperative approach, as finance minister Jim Flaherty recently vowed to create a national body to monitor systemic risks to financial markets.

The court offered little guidance as to precisely what activities fall within federal versus provincial jurisdiction, so what this body will look like and how it will operate in relation to the provincial securities regulators is unknown at this stage.  However, in a recent interview at the Davos economic summit, Finance Minister Jim Flaherty suggested that a new organization would need to be created to serve this oversight role, and the task will not be delegated to the existing Office of the Superintendent of Financial Institutions.

LA Passes Law Requiring Condom Use on Porn Sets

The pornography industry is in for a shake-up after the City of Los Angeles passed a law mandating that all performers wear condoms on the sets of films that are licensed by the city. The new law, which is believed to be the first of its kind in both the United States and Canada, is controversial because LA’s San Fernando Valley is the centre of the multi-billion dollar industry.

Proponents of the law, cited as the Safer Sex in the Adult Film Industry Act, argue that it is necessary to stop the transmission of sexually transmitted infections (STIs) between actors who often perform without protection. The law also comes in response to the efforts of HIV/AIDS activists, who have been pushing for a change after a porn actor tested positive for HIV in 2010.

Critics maintain that the law will not meet its purported objective, as companies will simply move their productions to other cities. They are also adamant that the law is unnecessary to prevent the transmission of STIs because the majority of production companies already require actors to participate in mandatory testing, including rapid HIV tests, before they are allowed to perform. Their argument against condom use is largely driven by the idea that consumers of pornography will be turned off by the sight of safe-sex practices, and as a result, the industry will suffer financial set-backs.

As in the US, Canadian law makers have been reluctant to pass laws regulating the use of condoms within the porn industry. Some critics have argued that this reluctance is tied to a general resistance to recognize the industry as a legitimate form of work that should be covered by organizations such as OSHA or WorkSafe.

With the exception of child pornography, which is criminalized under s. 163.1 of the Criminal Code, RSC 1985, c C-46, there are no laws regulating the production of pornography in Canada. Canadian case law also emphasizes the consumption or production of child pornography, as well as the definition of “obscenity” (see, most recently R v Katigbak, 2011 SCC 48), rather than the regulation of adult film production.

Without a Canadian equivalent to San Fernando Valley, it is unlikely that advocates in Canada will be able to generate the public support that is necessary to initiate debate about the recognition of the porn industry as a legitimate workplace. However, if other American cities follow LA’s lead and Canadian HIV/AIDS activists decide to get involved, it may not be long before Canadian law makers are forced to take a more proactive approach to ensuring the occupational health and safety of pornographic actors.

SOPA: An Update

In the wake of the reaction generated by the recent online protests to two proposed US anti-copyright bills, SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act), there is mounting concern that internet users in Canada may have similar reasons to protest as Bill C-11, the proposed Copyright Modernization Act, is set to continue its second reading in the House of Commons.

At the centre of Bill C-11’s on-going controversy is a concern that if powerful lobbyists have their way, the bill could end up looking a lot more like SOPA than was initially intended. In his blog, University of Ottawa Law Professor Michael Geist suggested that if adopted, the recording industry’s proposed changes to the bill could have dangerous implications for Canadian Internet users. Most notably, Geist warns that users who are found to be “repeat infringers” could risk losing their Internet privileges entirely. There is also concern that further changes to the bill could lead to a complete shut down of popular sites such as YouTube, which is targeted for allegedly enabling copyright infringement.

However, proponents on the other side argue that such fears are unfounded largely because of section 27(2.4), which sets out six factors that the courts must consider to determine whether a person has infringed copyright or enabled infringement (see Clause 18). Section 27(2.3) defines infringement by means of the Internet as “a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.”

Confirming the legitimacy of critics’ fears will have to wait until Bill C-11 re-enters the House for further debate and amendments. Until then, Canadian Internet activists may want to take some lessons from their American counterparts, who have so far managed to challenge what they see as the more regressive elements of SOPA and PIPA.