Amici Curiae : Toby’s Act, U.S.’s Battle Against Solitary Confinement and Canada’s New Copyright Reforms

Pride in Ontario: Amending the Ontario Human Rights Code

Toronto is gearing up for what will be one of its proudest weeks yet. Ontario will not only be celebrating its booming pride community but also celebrating the Royal Assent of Bill 33, or Toby’s Act (Right to be Free from Discrimination and Harassment because of Gender Identity or Gender Expression). The Act amends Ontario’s Human Rights Code RSO 1990, c. H-19 with respect to gender identity and expression. Ontario is only the second jurisdiction in Canada to explicitly extend protection to gender expression and identity – the Northwest Territories was the first jurisdiction to do so.

The bill unanimously passed in the Ontario Legislature on June 13, 2012 and received royal Assent six days later. This Bill updated the Code for the first time since the 1980s when the words “sexual orientation” were added.  Bill 33 is named after the late Toby Dancer. Dancer fought to raise awareness of the the discrimination faced by the trans community. Studies suggest that Ontarians identifying as being a member of the trans community suffer from a disproportionate amount violence and harassment; more than 78% of trans individuals have attempted suicide. Hopefully, these amendments will take meaningful steps to correct the injustices faced by Ontario’s trans community.

Last year, Toronto was home to North America’s largest pride parade. It is only fitting that Queen’s Park, just around the corner from the parade, passed the bill. Hopefully, other jurisdictions will take a cue and extend the same protection to the Canadian trans community.

Mounting Pressure on Canada and the US to Eliminate Solitary Confinement

When it comes to the state of criminal law in Canada, what captured our attention this year (begrudgingly, for some) was the omnibus crime bill that the Conservative Party proposed and subsequently passed. But what has attracted international attention was not so much Bill C-10, as was the continual use of solitary confinement for prisoners, particularly those with mental problems, in Canada. As a party to the United Nations’ Convention against Torture, Canada was subject to a regular review this year by the international body, which issued a report condemning solitary confinement in our country. At around the same time, the United States Congress was reviewing the issue of solitary confinement in its own country. In fact, this is the first time that the issue is being debated among lawmakers on Capitol Hill – and, surprisingly, is being advocated by members of both parties.

The United Nations’ Committee Against Torture expressed concern with several areas of the prison system in Canada, from overcrowding to institutional violence. One of the sharpest criticisms was launched against solitary confinement for prisoners with mental health problems. For instance, Ashley Smith died in 2007 after spending nearly a year in solitary confinement in federal prisons across Canada. Together with prolonged periods of isolation, her mental health problems, which were left untreated, pushed Smith to the breaking point.

In the United States, where solitary confinement is arguably a more widespread practice, legal actions have been taken against the government in recent weeks. A class action lawsuit was filed on Monday on behalf of mentally ill inmates held in solitary confinement at ADX, a federal maximum-security prison in Florence, Colorado. Last month, civil rights lawyers launched a case in Federal Court, on behalf of prisoners who had spent more than ten years in isolation at Pelican Bay State Prison in California. At around the same time, prisoners from almost every state had been conducting hunger strikes to protest this harsh practice. To an extent, the United States government has seen the error of its ways. Senator J. Durbin of Illinois, who is leading the Senate hearing, pointed out that the United States has relied on this practice more than any other democratic country in the world. As well, he noted that half of all prison suicides involve inmates who were placed in solitary confinement.

In the United States, lawyers are preparing for a legal battle, arguing that solitary confinement violates the Eighth Amendment, which bars cruel and unusual punishment. In Canada, our freedom to not be subject to cruel and unusual treatment or punishment is enshrined in Section 12 of the Charter. However, human rights activists and lawyers here have not set things in motion yet. Hopefully with mounting social pressure domestically and internationally, we can begin to view solitary confinement not as a way to punish the most wicked and depraved of us, but rather as an undoubtedly inhumane practice.


Bill C-11 Passes, Ushers in Major Changes for Canadian Copyright Law

Summer has just begun in Canada, and Parliament has spent a busy last week before its annual recess. Among the myriad pieces of legislation that were debated on in recent months was Bill C-11, also known as An Act to Amend the Copyright Act. Passed at a midnight reading of the House of Commons on June 18, 2012, the C-11 has been the subject of debates over the state of Canadian copyright reform for nearly 15 years. Moreover, it has also sharply divided Canadians, with commentators pointing out its many advantages and disadvantages. For instance, the maximalist perspective has held that C-11 was necessary to align Canadian copyright law with the rest of the developed world’s, especially with the provisions of the WIPO Copyright Treaty, and the Performances and Phonograms Treaty (WPPT). Both of these contain provisions that aim to enforce copyright protection with stricter measures. Until the reforms, Canada’s weak protection regime had garnered it international criticism, and had become a source of embarrassment on the international stage.

C-11 has been said to possibly bring “SOPA-like” protection to Canadian copyright law, with critics mainly being concerned about protection measures such digital locks, the “enabler” provisions as well as increased tariffs that users will have to deal with. In contrast, claim C-11’s supporters, the protections offered by it will help promote industry, preserve jobs in the entertainment and adjacent industries, and will allow for copyright holders to be given their economic dues. In any case, C-11 is here to stay, with the changes being formally codified into the Copyright Act (R.S.C., 1985, c. C-42) soon after the Senate gives it the final go-ahead, and it has received Royal Assent.

A full summary of the specific provisions the Bill changes can be found here.

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