My hunch wasn't that crazy after all

Some of you may recall that a few weeks ago I wondered what would happen to the enforcement of prostitution laws after the Supreme Court's important ruling striking several provisions.  In particular, I was curious how police forces and prosecutors would respond to the context of what were likely to be unsuccessful prosecutions of a law still technically in effect for the coming months.

Turns out that at least in Saint John they just won't be enforcing prostitution laws until the federal government addresses the court's requirements.

I can't help but wonder how many other jurisdictions in Canada are taking the same approach?  I would imagine that most would rather not make it so clear that they won't be enforcing prostitution laws even if they won't be.

How Will This Work? or Did the Supreme Court Pull a Fast One?

Yesterday the Supreme Court of Canada found (ruling is here) that a number of provisions criminalizing aspects of prostitution trade (apparently selling sex for money itself isn't illegal in Canada) were contrary to provisions in the Canadian Charter of Rights and Freedoms.  Instead of immediately declaring the offending provisions illegal the court gave parliament a year to enact new provisions before the current provisions will become inactive.

I can't help but wonder if suspending the declaration that these provisions are unconstitutional for a year isn't something of a fiction?  Are these provisions not basically already dead?

Even if the laws are still theoretically in force has the highest court in the land not just provided a perfect defense for anyone for anyone charged under these rules?  Maybe more to the point, would a prosecutor ever consider bringing charges once the Supreme Court of Canada guaranteed there to be no chance of a successful conviction?

And maybe this part is a stretch, but are the police going to be inclined to even arrest people using these provisions if the chance of prosecution is slim?  Might many police forces decide to use their resources on more promising endeavours until this matter has been clarified with either new law or a clear lapsing of these provisions?

And as laws tend not to apply retroactively, might the period of time from yesterday until a new law is passed or the provisions clearly lapse be something of a Wild West/Renaissance for prostitution in Canada?

I'd be really curious to know if there's something about this ruling that I've missed or if some part of my analysis is way off because as it is I can't yesterday's ruling isn't much more significant than has been previously suggested.

And I should also note that it would seem to me that a similar situation might arise every time the Supreme Court finds a provision unconstitutional but suspends the implementation of their order.  Is the suggestion that the law is still in effect (despite zero chance of a successful conviction) so powerful to continue to discourage the behaviour in question, whatever that behaviour might be, or is the delay really as much of a fiction as it seems?

Dead voters aren't the only thing Newfoundland doesn't have

According to a CBC story, for at least the last five years, Securities Commission of Newfoundland and Labrador has not had to fine anyone for securities law violations.  Despite the fact that this sounds great, I can't help but think it also sounds too good to be true.

Because the CBC piece doesn't really address the issues in Newfoundland (because they, like PEI, haven't fined anyone recently so there are no unpaid fines to collect) I decided that I should probably try to find the name of the entity responsible for enforcing securities regulations in Newfoundland.

A quick search lead me to a Newfoundland Government page that kind of suggested that the name of the relevant entity is the Securities Commission of Newfoundland and Labrador (and that this entity falls under the aegis of Service NL).

Of course, because this first website included very little of the information I was looking for (like the names of members of the Securities Commission) I decided a little more digging was needed.  It only took me a few more seconds to find the page of the Canadian Securities Administrators, which includes names and bios of provincial representatives.

The bio for the Newfoundland representative was quite a read.  Not only does the short write-up include a few biographical details about the representative, but it also mentions that this individual

is the Director of the Financial Services Regulation Division and was appointed Superintendent of Securities in December 2009. He is also the Superintendent of Insurance, Superintendent of Real Estate and Registrar of Mortgage Brokers and has responsibility for the regulation of Prepaid Funeral Contract Sellers.

But maybe more important than the fact that the Superintendent of Securities wears quite a number of hats simultaneously, is the fact that this bio also mentions that Securities Commission was eliminated in 2005.

Funny that the Government of Newfoundland and Labrador's website doesn't mention this.  Actually, there are still quite a number of references to the old securities commission scattered throughout the areas of the site that deal with securities regulation.

And because I found all of this a little curious I decided to quickly skim through the old versions of the law to see how the Securities Commission was constituted.  Apparently it had at least one member, but additional commissioners could be appointed. The other aspect of the law that immediately jumped out to me is that related to the investigatory powers of the Securities Commission.  The old version of the Securities Act included the following section:

3.4  In carrying out its duties under this Act, the commission has all the powers that are or may be conferred on a commissioner under the Public Inquiries Act .

The current version of the act doesn't seem to  provide the Superintendent with quite the same range of investigatory powers and requires that investigators empowered through the act, at least in some cases, to go to judges to seek prior approval for searches (this might be something of an improvement, if it investigations are actually initiated).

I've been trying to find out a little bit more about the Superintendent's office, but as of yet I haven't found much.  This, of course, contrasts with the Nova Scotia Securities Commission, a organization that provides easy access to their organizational chart and overall goals (as far as I can tell the name of the position of Superintendent of Securities, and that they are the chief securities regulator isn't even listed in an obvious and clear way on the main portion of the Newfoundland website).

Oh, one last thing about the 'securities' section of the Service NL website.  If you follow the link titled Public Orders all you find is the following text:

Copies of orders, rulings and decisions relating to discretionary relief can be obtained by calling (709) 729-4189.

Am I the only one that finds some of this a little strange?

Predictable response?

The introduction of amendments to the accesss to information law in Newfoundland earlier this week caused quite a furor. Not surprisingly, the media and the opposition parties were less than keen to see changes that will make it easier for the government to deny access to information. 

Aside from the fact that these amendments seemed tailor-made to cause the uproar that they caused, I find the timing quite strange.  If you wanted these amendments to seem like normal housekeeping amendments, which seems to be what the government wants, why would they more or less hide the details of the changes until the end of the legislative session and then try to ram the bill through on the same week it was introduced?  Could they have come up with an approach that would be more likely to raise suspicion among the critics whose ire they were hoping to avoid? If so, I'd be curious to see such an approach implemented at some point in time.

Because of cabinet exemptions to the law we will likely never know, but I would really love to know how long these changes have been in the works and how long the text of the current bill has been ready. In other words, how long were they sitting on the bill in its final form before they introduced it? (And as far as I know there hadn't been much discussion of such a bill/changes in the run-up to its introduction - a fact that likely intensified the feeling of shock among opponents).

While here are other aspects of this bill that merit consideration, the issue of it's timing seems particularly peculiar to me.

The all-night vote-a-thon

So in just a little while the Canadian House of Commons is set to begin would could be close to 24 hours of straight voting (they'll be voting on hundreds of proposed amendments to the recently introduced budget).  Because the Conservatives have a majority government the outcome isn't really in question, though I guess when you're trying to coordinate such large number of people for such a long period of time unexpected things may crop up.

Anyway,  for a while I'd been thinking about heading over to check out a little of this vote-a-thon, despite the fact that it will probably be just about the most boring thing in the world.

Then I went out for a walk.

Originally I was thinking I might just pick out a coffee.  Turns out that I ended up going for a slightly longer walk and ended up walking past Parliament.

By the time I made it to Parliament I had pretty much come to the conclusion that I probably would just give the whole vote-a-thon thing a skip and maybe just watch the streaming version, if anything.

Of course now that I'm back home and I get the sense that the voting is just about to get underway I'm a little more interested in the idea of heading over to watch the late night parliamentary antics.

Of course another problem is that if I head out to the House of Commons I'll lose my online coverage of the 'filibuster' currently ongoing in the Newfoundland House of Assembly (which is currently in recess while they resolve a point of order relating to comments about whether or not someone called someone racist and whether or not the comments are unparliamentary).

Anyway,  what a night.  I have more strange opposition-induced middle of the night legislating than I ever thought I'd have a chance to witness.

I think I may have fixed the internet again

So shortly after my recent post (and an email to webmasters) about the New York state senate's anti-anonymity on the internet bill's website and the non-appeareance of comments comments from the past week appeared.

While I don't know if my actions were directly responsible for the appearance of comments on the site, the time does seem a little suspicious.  That being said, I really hope that New York State Senate doesn't have a system that requires additional feedback before they post comments on legislative proposals.  Such a system would seem to undermine much of the point of a system of web-based commenting on legislation.

Anyway, it's nice to see that there are now 16 comments on this questionable piece of legislation.  It would be even nicer if the public had some way of knowing how many comments have been submitted and if any have been rejected.

The appearance of inclusiveness in New York

Some of you may recall that a few days ago I posted about a bill before the New York state Senate that would prohibit anonymous commenting on websites.  While looking into the bill while I was preparing the post I stumbled across a New York state website that provides access to a copy of the text of the bill (as well as all other bills before the legislature as well as other legislative documents), as well as some additional information about things like expected fiscal implications.

One aspect of the website that stood out immediately was that at the bottom of the page they provide an opportunity for members of the public to publicly comment on the bill or give the page a 'thumbs up' or 'thumbs down.'  Not surprisingly, to comment they require one to sign in through one of any number common web identifiers (Ex. OpenID or a Yahoo account).  Though this hurdle is likely meant to cut down on nonconstructive comments and spam.  Once you've submitted a comment one is notified that before comments are posted for the public to see they must be approved by a moderator.

Because no one had yet commented on the bill, or at least that's how it seemed at the time, I thought that I might give their system a shot and show who their whole system worked.  And as this is the first time I've seen this option available to members of the public I thought I would try to help those responsible for implementing the system out by giving them some traffic.

I can't remember what my first comment a few days ago was, but I know it was pretty mundane.  I probably commented/asked about enforcement.  Whatever the case may be, it's now been almost a week since I made the comment on the site and it still hasn't been approved by the moderators nor have I received a notice indicating that my comment has been rejected.  Even the 'thumbs down' that I gave the bill hasn't yet made an appearance.

While I think it is admirable of the New York State Senate to try to use new technologies to encourage the participation of the citizenship in the legislative process, I fear that implementing a system that is either non-functional or incredibly slow may actually be worse for public participation.  Also, by making the terms of comment moderation unclear users aren't able to know if any comments that do make it past the moderators are really reflective of public sentiment, or if the comment they are reading are those comments favoured by the moderator/censor.  Even if the comments aren't being censored/skewed the fact that they are moderated makes it hard for a skeptical public to know that this is actually the case and that the viewable comments do accurately reflect the views of the comment posting public.

My gut is telling me that it seems likely that the level of discussion that we are seeing on these New York Senate bills will be not to dissimilar from the type of discussion we might come to find standard in a world where anti-anonymity on the internet legislation is the norm.

NY's potential contribution to the perfection of the internet

On the Media, a great public radio show from New York, just brought to my attention a bill from New York that is aimed at the elimination of anonymous commenting on internet sites (I can't tell if their goal is to reform the entire internet, or just the part of the internet that resides in New York state - in either case the whole thing seems a little futile).

Given that the bill is less than a page long (and is really just an amendment to the civil rights law) I was able to breeze through it in just a few minutes.

The first aspect of the bill that caught my attention was the definition of the term 'anonymous poster.'  In the bill an

ANONYMOUS POSTER IS ANY INDIVIDUAL WHO POSTS A MESSAGE ON A WEB SITE INCLUDING SOCIAL NETWORKS, BLOGS FORUMS, MESSAGE BOARDS ORANY OTHER DISCUSSION SITE WHERE PEOPLE CAN HOLD CONVERSATIONS IN THE FORM OF POSTED MESSAGES.

According to my reading of this definition the 'anonymous' descriptor is really superfluous as they seem to be referring to any and all who post messages on websites.  Why not use this basic definition of a 'poster' and then suggest that anyone who engages in such actions without providing their legal name and contact information is an 'anonymous poster'?  Or is that too obvious a solution?

Another definitional matter that is worth thinking about is that they haven't defined what constitutes a 'message.'  Might a 'thumbs up' or a 'like' be a 'message'?  In some ways, these non-verbal interactions with web-based content may be just as important or meaningful as various forms of written contributions.  And what about videos or audio content, are these things 'messages'?

Aside from obvious jurisdictional, technological, and enforcement issues, I was also struck by the bill's brief business end.  If passed the bill will require

A WEB SITE ADMINISTRATOR UPON REQUEST SHALL REMOVE ANY COMMENTS POSTED ON HIS OR HER WEB SITE BY AN ANONYMOUS POSTER UNLESS SUCH ANONYMOUS POSTER AGREES TO ATTACH HIS OR HER NAME TO THE POST AND CONFIRMS THAT HIS OR HER IP ADDRESS, LEGAL NAME, AND HOME ADDRESS ARE ACCURATE. ALL WEB SITE ADMINISTRATORS SHALL HAVE A CONTACT NUMBER OR E-MAIL ADDRESS POSTED FOR SUCH REMOVAL REQUESTS, CLEARLY VISIBLE IN ANY SECTIONS WHERE COMMENTS ARE POSTED.

First of all, who can lodge such a request?  Is this opportunity open to anyone, and if so how are they expected to go about doing this?  Can I use New York and its courts to unmask trolls even if I nor the trolls are in New York?

Secondly, and this is maybe the most striking feature of this bill, the suggestion that one can engage in anonymous posting as long as 'anonymous posters' provide their name, address, and contact information seems to be something of an oxymoron to me.  It would seem to me that if an 'anonymous poster' is providing all of this information that they are no longer anonymous - but that's just my non-legal reading of this text (and if you recall the earlier definition 'anonymous poster' meant basically anyone posting anything on the web so maybe this isn't as crazy as it seems).

Of course, the substantive issue that this bill seems to be addressing is the legitimacy of anonymous communication.  It would seem that those in support of this bill don't think that residents of New York/users of the internet should be able to engage in anonymous communication despite the fact that anonymous communication has a long and storied history in the United States, The Federalist Papers being a particularly prominent example of an important anonymous publication in the US.  Given first amendment protections of free speech in the US this position seems strange, and, based on a quick internet search, not only that is likely to fare well under the harsh light of judicial review.

Anyway, I guess we'll see if this makes it anywhere (and as nothing has happened since the bill's introduction on March 21 my fears may be for naught).

No, not all skiers

So the bill about requiring ski helmets in Nova Scotia that I mentioned yesterday has now been posted online. As you may recall, I was interested in whether or not the requirement would actually apply to all skiers, as was reported in the CBC article, or if it would specifically apply to downhill skiers.

It turns out that this very issue is dealt with in s. 2 of the bill.

The purpose of this Act is to protect the health of Nova Scotians by requiring people to wear protective helmets while downhill skiing or snowboarding at ski hills where people pay to ski or snowboard.

Of course, I guess this means that if you are just out in the woods or at an abandoned ski hill there would be no requirement to wear a helmet.

There are also sections of the act that seem to provide the potential for abuse.

7 (1) For the purpose of enforcing this Act and the regulations, an enforcement officer may, without a warrant,
(a)investigate any complaint of a contravention of this Act or the regulations and examine any person to determine if a contravention has occurred;
(b) from time to time and at all reasonable times, enter the property or premises of an owner or any other person if it is reasonably necessary to do so in order to determine whether or not this Act and the regulations are being complied with;
(c) request that a person remove the person's helmet and provide it for inspection;
(d) require a person to provide the person's name and address or proof of identity; and
(e) do any other thing necessary for the purpose of enforcing this Act and the regulations.

Is it really necessary to allow enforcement officers to be able to request ID and proof of address if there is no suspicion of wrong-doing? Or that people must submit to helmet inspections? What about s. 8 of the Charter?

8. Everyone has the right to be secure against unreasonable search or seizure.

Can this invasion really be "demonstrably justified in a free and democratic society"?

Yesterday, while looking for a copy of the bill, I happened to come across the press release issued to announce the impending introduction of this bill. Something that caught my eye in the press release was the claim that "The Snowsport Helmet Act will be the first legislation of its kind in the world." Could this really be true? Had no other jurisdiction tried to implement a mandatory helmet law?

Well, after a few minutes of searching I came to the conclusion that the claim may not be entirely accurate (it likely depends on your definition of 'first of its kind'). It seems that in California legislation was introduced, and passed by both houses of the legislature, that would have required those under sixteen to wear helmets while downhill skiing. Though the bill had legislative support it was eventually vetoed by California first post-Schwarzenegger governor.

So if you take 'first of its kind' to mean 'bill requiring some segment of the population to wear helmets while skiing' it is clear that this bill is not the first of its kind. On the other hand, if you take 'first of its kind' to mean 'bill requiring all downhill skiers to wear helmets while skiing' then the claim may hold water, though I can't claim to have done a particularly extensive search.

All skiers? Really?

CBC Nova Scotia has just reported that "The Nova Scotia government plans to pass a law requiring all skiers to wear helmets." Not surprisingly, the story doesn't have too many details on the proposed legislation.

I can't help but wonder if it is really necessary to require cross country skiers to wear helmets as they majestically make their way through the countryside at sub-10 KPH speeds. Requiring cross-country skiers to wear helmets is practically like requiring a walking/running helmet. Until I get to see the text of the bill I won't know if this really is the intent of the legislation, or if this is just another instance of sloppiness in the original media report.

A Few Quick Notes 541

-The weather has really been yo-yoing for the past few days. On Sunday I woke up to sun and blue skies only to find that within an hour the skies had turned so grey that it seemed like the sun was about to set. Only minutes later I was in the midst of an intense downpour and thunder and lightening store. After the sky cleared we had another such transition at about 2:00 PM. My recollection is that yesterday was also intermittently bright and dark while today, at least so far, seems to be a beautiful, if cool, day. Of course, rain seems to be in today's forecast so who knows how things will actually turnout as the day moves forward.

-Fortunately yesterday evening turned out to be quite pleasant, even if the skies were a little grey. Jeannette and I decided to go for an evening stroll and, somewhat unintentionally, ended up visiting Acadia University's botanical garden. Though we didn't take as much time to visit the gardens as we could have, it was nonetheless a very enjoyable visit. I am sure we will be heading back throughout the summer.

-I should be paying more attention to some of the legislation that has recently been introduced, or that is about to be introduced, by the Harper government. Some of these bills, if enacted, could really change the way things work in Canada and, sadly, I get the sense that they are being rushed through without too much consideration of their potential impact.

Anyway, not that my opinion counts for much, I think that the Senate reform attempts are likely to be particularly important and could really change some of the central institutions of government. While I am not so much of a fan of the current structure of the Senate to say that we should never consider changing it, I do think that any changes should be discussed openly and widely before they are implemented. Currently it seems that the plan is to implement the changes without really having much of a national discussion about what impact these changes might have or whether or not it is even constitutional for the federal government to unilaterally make such changes to the constitution and the functioning of a powerful (or potentially powerful) institution.

I really should probably motivate myself to write a letter to Mr. Harper and my local MP (Mr. Harris), but for now this will have to do.

-Now that I am about 12 days removed from my surgery I have enough energy and have recovered enough that I can get back to work. I guess this means that I should probably stop blogging for the time being and actually get back to work.