Legal aid: horrendously underfunded

This week, I am writing about legal aid.

Yes, I’ve written about it before: Politics and Legal Aid in BC. But, it’s a crucial topic, so I am going to discuss it, again.

To start, legal aid is a vital program for our province. It’s VITAL.

But, despite it being so vital, very few people know much about it (until they need it, of course).

So, what is it?

Well, it’s a program that allows poor families and people to have a lawyer when they really, really need it. That’s basically it.

The legal system is complicated. And, lawyers can be expensive. And, unlike doctors, the client (and not the government) typically pays the lawyer fees.

So, that’s why legal aid is important: it’s a safety net, designed to catch people who genuinely need a lawyer, but who can’t afford legal fees.

So, what’s the status of legal aid in BC? Well, as you may be able to guess from my tone, it isn’t good…

 

At present, legal aid services are only provided to people who may go to jail or be deported from Canada or to people who are involved in a family dispute that involves violence, abuse, or a custody dispute (for children). AND, in order to qualify for legal aid, you must earn very little money.

So, that’s it. Doesn’t seem like much, right? Well, it isn’t… Legal aid is horrendously underfunded.

You may ask, “So, what is happening with legal aid going forward?” Answer: it’s getting worse.

Legal aid in BC is facing a big budget shortfall, which means that the legal aid program is going to have cut even more services. And, who does that hurt? You guessed it: poor families.

It is very sad. But, it isn’t THAT surprising because the BC Liberals have NOT been reprimanded for all their budget cuts to legal aid (and to the court system, generally).

Here’s some history…

After the BC Liberals took office in 2001, they slashed legal aid’s funding almost in half. And, with the cuts, many family law services and poverty law services (previously provided to poor families) were completely eliminated. In effect, a lot of poor families were ‘left on their own’.

In 2011, a report was given to the Liberals, recommending that legal aid be recognized as an essential public service. The report called for stable funding. The report was ignored.

Then, there was the 18 month job action by legal aid lawyers that was supposed to draw public attention to poor legal aid funding. But, that ended (and failed) recently.

And, what’s legal aid doing now? It’s asking the government for more money. And, what has the government said in response? Justice Minister Suzanne Anton said that she would be happy to discuss the issue, but that the province is already being generous. Generous?!

Our court system is crying out for adequate funding!

So here’s my advice: stop listening to the government’s propaganda regarding our justice system.

We have one of the best legal systems in the world. But, without money to fund it, it will crumble.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on October 1, 2013: Legal aid horrendously underfunded.

Begging for money?

So, last week, I was on the radio in Vancouver. I was a guest speaker on CKNW radio, talking about panhandling and the laws around it.

Now, if you recall, I wrote a column about this topic about a year ago: Is panhandling illegal? And, while I had written about the law around panhandling before, I wanted to do some extra research. Really, I didn’t want to sound foolish on the radio!

So, for a few hours, I did some extra research, and I thought I would share some of that research with you.

To start, there are actually a lot of laws that attempt to regulate how people can panhandle.

In 2004, the provincial government created the Safe Streets Act. It was an attempt to make a bunch of different types of panhandling illegal.

The prime motivating factor behind this law was that a lot of businesses were complaining about panhandlers harassing their customers. Also, tourists were being “put off”, especially in Vancouver.

So, the new laws made it illegal to ask for money in an “aggressive” way. Now, what does that mean?

Well, it means that panhandlers can’t follow someone for money, they can’t use threatening or rude gestures, they can’t block someone’s path, and they can’t repeatedly ask someone for money. If someone violates these rules, then they can receive a $115.00 fine.

The new laws also made it illegal to panhandle in certain places, basically creating “no go” zones for panhandlers. So basically, panhandlers can’t ask for money within 5 meters of a bus stop, a public toilet, a pay phone, or an ATM. It basically made it illegal for panhandlers to ask a person for money if that person is standing in a place and is being held ‘captive’, not being able to walk away (because they are waiting for the ATM or whatever else). There is an $86.00 fine for this offence.

Now, the provincial government didn’t REALLY have to pass these laws – this is because a lot of municipalities already have very similar laws.

Cities, such as Kelowna, Kamloops and Vancouver have laws that outlaw nearly the same type of panhandling. In fact, the municipalities’ laws are often ‘tougher’ on panhandlers. For instance, Kamloops, Kelowna and West Kelowna make it illegal to ask for money within 10 METERS (rather than 5 meters) of an ATM or bus stop.

But, really, what’s the point of giving a fine to someone who is panhandling? If you thought this, you’re exactly right.

The typical ways that are used to get money from people (who owe fines or debts) don’t really apply to people who are begging for money. After all, if they had assets to collect or wages to garnish, they probably wouldn’t be panhandling in the first place…

So, what do authorities do? Well, let’s not forget the Criminal Code, which arguably has more ‘teeth’.

The Criminal Code makes it illegal to threaten someone or disrupt someone’s right to enjoy their property (while panhandling).

And, make no mistake: the Criminal Code is used against panhandlers. For instance, in Victoria last year, a man was arrested and charged with mischief (a Criminal Code offence) for repeatedly entering into businesses and asking customers for money.

Clearly, there are a lot of laws that surround panhandling.

And, as a ‘final thought’ (quoting Jerry Springer), let’s not paint all panhandlers with the same brush. Sure, some people will act aggressively. But, others are simply down on their luck and don’t deserve to be treated with disrespect. So, be nice.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Column originally posted on Castanet.net on August 20, 2013: Begging for money?

Lessons from the Nude Beach

As I write this column, I recognize it’s an unusual topic… but, hear me out…

Vancouver has a lot of famous landmarks. And one of those landmarks is Wreck Beach, a clothing-optional beach.

I went to Wreck Beach a few weeks ago with a friend.

When he originally asked me to go, I was skeptical. At that point, I hadn’t been to any such beaches and I had some pre-conceived notions about clothing-optional beaches. Basically, I thought it would be uncomfortable.

But, my friend insisted that it had a beautiful view of the ocean, was very secluded, and that it’s full of nice people.

He convinced me. And so we went.

It was a Sunday in July and it is very busy. It wasn’t what I thought it would be, at all.

Everyone around us was friendly and talkative. And the view of the ocean was incredible, particularly at sunset. I was impressed.

Now, this may sound like I am giving a glowing endorsement of Wreck Beach. But, I’m not…

There are problems with Wreck Beach…

For some context of the problems, there are several rules at Wreck Beach, which include:

  1. Don’t stare or gawk;
  2. Don’t photograph; and
  3. Don’t video-record.

The rules of Wreck Beach can be seen on its website.

Now, I agree that the rules (in theory) seem fine. But, there are problems…

To start, the rules are enforced by the Regulars, the people who regularly go to Wreck Beach. And the rules aren’t enforced equally, which (at least to me) is unfair.

Here’s an example:

Now, you aren’t allowed to gawk or stare, right? Well, from speaking to some people, I learned that the “Don’t stare/gawk” rule applies LESS if you’re naked yourself. So, basically, the less clothing you are wearing, the more freedom you have to walk around the beach and look at nude sunbathers.

Is that fair? I don’t think so. If someone doesn’t want to be gawked at, is it better that the person doing the gawking is naked themselves? If anything, I would think it would be more uncomfortable…

Oddly enough, this made me think of our legal system.

In our legal system, we have some core principles. And one of those core principals is that everyone is equal before the law and that the laws apply to everyone, EQUALLY. So, it doesn’t matter who you are friends with, what societal position you have, or what you’re doing: the laws apply to you, period. And that’s a great thing.

Another core principle in our legal system is that laws have to be clear. This is a REQUIREMENT. And, it’s something that we should be proud of. Laws need to be written clearly so everyone knows what is required and expected of them. And, if they aren’t written clearly, then such laws are challenged in court and they are changed.

Remember the rules from Wreck Beach? They are incredibly vague!

Consider the rules regarding taking photographs.

My friend told me that he witnessed someone take a photograph of the ocean at sunset. And, even though the photograph didn’t have any sunbathers in it, the fellow taking the picture was still questioned and verbally attacked.

But, was this photograph really against the rules?

Surely the rule against photography is meant to protect the privacy of sunbathers. So, if there are no sunbathers in the photograph, then there is no problem, right?

Well, that’s the problem: we don’t know. Obviously, the rules could be clearer – and if they were, the fellow who took the ocean photograph could have avoided the verbal onslaught.

Now, it may sound like I am attacking Wreck Beach, but I’m not. It’s a beach…a nice beach, in fact. I am just using it to describe some core principles in our legal system…some core principles that every Canadian should be proud of.

Now go enjoy the sun.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Column originally posted on Castanet.net on July 23, 2013: Lessons from the Nude Beach

(Sad) future of B.C. politics

This recent provincial election was…interesting. And, historical for a number of reasons: some good, some bad.

First, it’s great that Christy Clark is the first woman to lead a B.C. political party to victory. That is no small feat, considering she was once 20 points behind in the polls.

Next, it was good to see that the pollsters aren’t always right (even though, in this case, I was hoping they were).

The argument that polls should be treated with caution is even stronger when considering that, just over a year ago, the Alberta Progressive Conservatives unexpectedly defeated the Wildrose party for a majority government.

The election was also historical for another big, BIG reason: several people were either fired, humiliated, or both for comments that they had made in the media.

AND, with that, a dangerous precedent was set: if you make an online comment, that comment can haunt you, sometimes more than a decade later.

Let’s go through the list…

  • Dayleen Van Ryswyck: a local NDP candidate made some ‘less than politically-correct comments’ on Castanet’s forums about Aboriginals and French Canadians. These comments were made approximately 4 years ago. After the comments were made public, Ms. Van Ryswyck resigned as a candidate for the NDP.
  • Mischa Popoff, a well-known business person and a former Tory candidate was fired from the BC Conservatives when it was discovered that, in March 2012, he wrote inappropriate remarks about women and the Missing Women Inquiry in Kelowna newspapers.
  • Ian Toothill, a former Vancouver-False Creek Conservative candidate, was fired when it was discovered that he made tweeted some “odd” comments about the Nazis and also tweeted that “men love sluts”.
  • Rob Herbert, a former Conservative candidate, was fired when he called Premier Christy Clark a “bitch” in a tweet.
  • Dr. Jane Shin, the medical doctor and Burnaby-Lougheed NDP candidate, was publically ridiculed when it was discovered that, 11 years ago, she made a derogatory remark about Chinese-Canadians on a video-game website.

Yes, I think that these people made some bad choices. But, I’m not trying to further chastise them: that’s been done a lot already and that’s not the point of this column…

The point of this column is to argue that a dangerous precedent has been set…

In this new age, almost everyone has an ‘online profile’, whether it is on Facebook, Twitter, YouTube, or whatever. And, on those websites, almost everyone writes comments or posts photographs. And, I’d be willing to bet that almost EVERYBODY, both young and old, regrets posting or writing something online.

Ask yourself this:

  • Have you ever taken an inappropriate photo of yourself and posted it online?
  • Have you ever argued (online) about a controversial topic and then later changed your mind on that particular topic?
  • Has someone ever taken a ‘less-than-professional’ photograph of you and posted it online?
  • Have you ever said something (online) to someone or about someone that you later regret?

If any of the above scenarios have occurred to you, then you’ve probably hoped that those ‘moments’ remain buried… But, as we’ve seen in the last election, they might not…

And, as we saw in the last election, anything you say online, even if it occurred many years earlier, is ‘fair game’.

So, what’s the downside of that? It may serve to keep ‘ill-suited’ candidates from political office, right?

Well, consider this: do you think respected business professionals or community-minded people will be MORE or LESS likely to enter politics, knowing that their previous online comments or photographs could return to HAUNT them?

Granted, not all great candidates will be ‘turned-away’ from politics because of this issue. But, if some otherwise great people are turned off by this, then who really loses? Obviously, it’s the public.

So, what’s the solution? Well, I don’t have one…

Granted, people should (absolutely) be very careful when posting online. But, who amongst us hasn’t said or done something that they regret?

I’m interested to see future elections, particularly how our lives are increasingly displayed on the Internet. It’ll be…interesting.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 28, 2013: (Sad) future of BC politics.

Politics and legal aid in BC

So, there’s an upcoming election and, if you’re like me, you’ve heard a lot of promises.

But, I haven’t heard much about the funding of B.C.’s justice system, which makes me wonder, “What the heck?!”

Now, I have previously indicated in columns that the courts are HORRENDOUSLY under-funded. You can read that column here: Justice system in crisis.

But, in addition to court budgets, legal aid in B.C. is also under-funded.

You may not have heard much about this topic, but there have been several protests by lawyers about the poor funding of legal aid: BC trial lawyers take stand.

So, what’s the problem? Well, the problem boils down to this: justice in B.C. is unattainable for a lot of people in British Columbia (because of their financial means) and legal aid does not “fill those gaps”.

You may not know a lot about legal aid, so here’s some information…

First of all, “legal aid” is basically government funded legal advice and service.

So, how do you get that government-funded lawyer to work for you?

Well, there are some hurdles that you need to jump over. First, your particular legal issue must be covered by legal aid.

Here are the most common situations when legal aid will be provided:

  1. You are charged with a criminal offence that could send you to jail (if convicted);
  2. You have a serious family law problem, which generally involves some issues involving a child’s safety or care; and
  3. You are facing immigration proceedings that may result in you being removed from Canada.

The next hurdle to jump over is Legal Aid’s financial guidelines. Basically, your net household income must be below a particular amount. Here’s an example: if you live alone, your net income must be equal to or less than $1,480.00/month.

And, you can’t have a lot of assets either. An intake legal assistant at Legal Aid will look at the value of your assets (to determine if you should receive legal aid). They’ll consider things like your cash, RRSPs, home, and car. With some exceptions, assets are considered disposable (i.e. able to be sold).

You may be thinking, “It sounds like legal aid covers a lot of different legal matters.” If you think that, consider this…

Legal aid doesn’t help you if you want to create a Will or Power of Attorney. It doesn’t help you if someone physically hurts you and you want to sue them for your losses. It doesn’t help you if someone refuses to pay you for services/work that you agreed to provide to them. It doesn’t help you if you are charged with a “typical” criminal offence, as the most common criminal offences don’t result in “jail time”.

You get the point: legal aid doesn’t provide assistance to most legal situations.

Then, there are the financial hurdles… A LOT of people make more than $1,480.00 (or approx. $17,700.00 net per year), but cannot reasonably afford a lawyer (or any other unexpected expense for that matter).

For your information, I frequently meet with and provide advice to people who cannot afford a lawyer and who do not qualify for legal aid. And, it can be heart wrenching.

Many of these people have great cases and civil claims (but cannot afford a lawyer to prosecute their claim). And, many of these people who are charged with criminal offences have legitimate defences (but cannot afford a lawyer to argue that defence).

Now, I take on some of these claims on a pro bono basis; but, obviously, I can’t take them all.

So, what do we do? Well, we need to ensure that legal aid is adequately funded, so that JUSTICE is attainable for more people.

Here are some wise words, said by the Right Honourable Chief Justice of Canada Beverley McLachlin, P.C.: “Our brains are hardwired for justice. To be required to accept that you can’t have justice is to give up a part of yourself as a human being.”

Something to think about on election day…

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on April 30, 2013: Politics and legal aid in BC.

Bullied, raped student ends her life…

I’m angry…

By now, you’ve heard about the tragic death of Rehtaeh Parsons. But, in case you’ve been living under a rock, here’s the tragedy…

Rehtaeh, 17 and from Nova Scotia, was taken off of life support and died on April 7, 2013 following a suicide attempt. Rehtaeh had been allegedly raped by four boys. Apparently, there was even a photograph of the rape. She was also bullied relentlessly.

The rape was reported to police, but APPARENTLY there wasn’t enough evidence to lay charges. So, the bullying continued… until Rehtaeh eventually took steps to end her own life.

I am furious!

Obviously, I am furious at the “boys” who committed the rape.

And, after reading about the tragedy, I am also furious at the police.

Granted, I don’t have the full story; but, I have a REALLY hard time believing that they couldn’t get enough evidence together. I also have a hard time imagining that four boys could commit such a serious crime and completely cover it up, totally escaping criminal liability…

The Nova Scotia government is apparently devoting substantial resources to find out what happened. I hope that they find the individuals who are responsible…

And, I applaud Nova Scotia Justice Minister Ross Landry for taking these steps. But, there is something that he said that just doesn’t make sense….

He said that, in the wake of Rehtaeh’s death, he’s considering NEW LAWS when it comes to sexual assault and distribution of child pornography.

Maybe I am missing something here…

The laws surrounding sexual assault and child pornography aren’t gray or vague. I think we all know that rape and child pornography are illegal. And, there aren’t truck-wide holes in those laws.

So, I fail to see how different laws would have prevented this tragedy.

It seems pretty clear to me: the police couldn’t get enough evidence to lay criminal charges. That’s what they said, right?

Okay, so let’s assume that the police weren’t incompetent in investigating the crime. If they weren’t (and we’ll find this out soon), then obviously they needed further resources.

It makes me angry when politicians say that they are going to create new laws when the existing laws are just fine. The problem isn’t the laws – it’s the ENFORCEMENT of those laws.

So, here’s a better idea: how about devoting more resources to ensure that police are able to effectively investigate crime? Better training, more police, more resources, you name it…

Enough is enough.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on April 16, 2013: Bullied, raped student ends her life…

You’re worth more alive than dead

I had someone ask me last week, “What is the family of a car crash victim (who dies in the crash) entitled to?” That was a great question and is the topic of this week’s column.

 

To start, you probably know that if you are INJURED in a car crash, you have a right to sue the driver who caused the crash. In the lawsuit, you are entitled to money (i.e. compensation for your losses).

Generally, injured car crash victims are entitled to an award for ‘pain and suffering’ and an award for a loss of income (if the victim loses shifts or his/her job). The injured victim is also entitled to an award for medical treatment, which can include medical treatment for the rest of the person’s life. Sounds fair, right?

Well, the situation is MUCH different if you are killed in a crash (rather than just injured).

If you are killed in a car crash, you obviously cannot sue for your losses (because you’re dead). But, some of your family members can: only your parents, children, or spouse can sue the driver.

Now, you are probably thinking, “What can you sue the driver for?” Well, you’ll probably guess that your family could receive money for their ‘pain and suffering’ (for losing you). If you thought that, though, you’d be wrong.

After you die in a car crash, the resulting lawsuit is controlled by the Family Compensation Act , R.S.B.C. 1996, c. 126. And, in these types of lawsuits, your family can ONLY get compensation for their FINANCIAL loss resulting from your death. That means that there CANNOT be an award for ‘pain and suffering’.

I’ll explain…

Here is an example: You are 40 years old. You have a husband and two children. Your family depends on your income (as your husband is a ‘stay-at-home dad’). One day, on your way to work, you die in a car crash. As a result, your husband and children sue the offending driver (who caused your death). From the lawsuit, they are basically only able to get the money (from the offending driver) that keeps them living the same lifestyle that they were living before your death. In deciding how much money to award, the court looks at how much financial support you provided to your family. It is just a math question. There is no award for loss of love/companionship or for ‘pain and suffering’.

Seem unfair? Well, it is. Here is an example to show how unfair it is…

You are 70 years old. You have a husband and two children. Your children are grown up and have left home. You retired five years ago with enough savings to retire comfortably with your partner. One Tuesday, you are killed in a car crash. As a result of your death, your family suffers zero financial loss from your death. As a result, your family would likely receive NOTHING in a lawsuit against the driver who caused your death.

This same situation is applicable to children: if a child (who is killed in a car crash) contributed nothing (financially) to the family, then the family is likely to receive NOTHING in a lawsuit against the driver who killed the child. On the flip side, when a child or an elderly person is injured (and not killed), they are entitled to ‘pain and suffering’ and potentially a bunch of other money.

Clearly, A LOT of people are worth more alive than dead…

Fortunately, the law may change in the future. Currently, there is a group, the Wrongful Death Law Reform Group, that is working to change this current situation in the law. Among their efforts, they are trying to introduce a new law: the Wrongful Death Accountability Act. This law would allow for fair compensation for deceased car crash victims. You can read more about the group’s efforts to change the law here: Wrongful Death Reform Group.

Drive safe…

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on January 29, 2013: You’re worth more alive than dead.

Kids committing crimes?

Kids make mistakes. That’s inevitable. These mistakes range from stupid to criminal.

When youths commit crimes, there is a lot of confusion over how these youths are dealt with. This confusion seems to lead to (misplaced) anger and frustration at our justice system.

In response to that public frustration, I write this column, explaining some of the legal issues involved when kids commit crimes.

 

To begin, the applicable law when dealing with kids/youths who commit crimes is the Youth Criminal Justice Act, S.C. 2002, c. 1. For your information, youths are those under the age of 18. Those who are 18 or over are considered adults.

Youths who commit crimes are subject to different rules (compared to adults). Why? Well, it’s obvious: they’re kids. Here are some of those differences:

When youths are first found committing a crime, police and prosecutors have a responsibility to consider alternative ways (other than criminal court) to help the youth ‘learn his/her lesson’. This could include giving a warning, talking to the youth’s parents, or sending the youth to some rehabilitative/educational program.

Another difference is that a youth, when arrested, is entitled to speak with a lawyer AND with his/her parent/guardian. Statements made by the youth without those rights could be inadmissible in court. Police officers would be wise to follow this rule.

Next, if the child is charged with a crime and taken to court, then the youth is less likely to be kept in custody while awaiting trial (compared to an adult). This makes sense: it is undoubtedly better for the youth’s rehabilitation to be with his/her parents than in jail.

Also, if a youth is taken to court, there will be a ban on the publication of the name of the youth. As well, access to the records of youths is strictly monitored. Obviously, this is important: if a youth’s name is made public, then the mistakes of that youth could affect the rest of his/her life.

Next, if the youth is convicted of a crime, then the youth is less likely to spend time in jail (compared to an adult). See section 38 of the Youth Criminal Justice Act.

I recognize that this makes some people angry. Some people want children to sit in jail cells to ‘learn their lesson’ (even for minor offences). But, think about it: very little is gained from sending a child to jail, except potentially ‘hardening’ that child, hurting their chances at rehabilitation. Jail doesn’t always help; it often hurts.

Instead of jail, convicted youths are more likely to be referred to programs that helps educate and rehabilitate them, ensuring that they lead productive and law-abiding lives. Youth sentences can also include the youth financially compensating victims (in vandalism-type cases), writing apology letters, receiving counselling, completing community service, or taking educational programs/courses.

If a youth commits a serious enough crime, like murder or manslaughter, then Crown Counsel could try to have the youth receive an adult sentence (i.e. life in prison). Whether or not an adult sentence is pursued will depend on the circumstances of the crime and on the circumstances of the youth. See section 72 of the Youth Criminal Justice Act.

But, with that said, even if the youth is given an adult sentence, the parole eligibility date will be much sooner (compared to an adult offender). For instance, when youths receive (adult) life sentences for murder, parole eligibility for youths is between 5 and 10 years, depending on the age of the child and the nature of the offence. See section 745.1 of the Criminal Code. Also see the following link, explaining parole: Parole explained.

I recognize that the seemingly ‘soft-approach’ to youth crime makes some people very upset. But, to those people: consider that when the ‘soft-approach’ (i.e. the Youth Criminal Justice Act) was introduced in Canada, that there was a 4% drop in police-reported youth crime, a 17% drop in youth court charges, and a 22% drop in youth homicides.

Here’s this week’s final thought: it is inevitable that children will commit crimes. So, ask yourself this: is our community better served by harshly punishing children or helping children get their lives back on track?

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on December 4, 2012: Kids committing crimes?

Risks of posting comments on internet

The Internet has given everyone a voice – whether on Facebook, in a chat room, or in a forum. This is not always a good thing…

There are a few types of online posters.

Some posters try to make intelligent comments and conversation. Others post online for therapy, telling the world their every thought (with little filter). Others are more interested in ‘stirring the pot’, simply trying to irritate and annoy other people by posting inflammatory, threatening, and off-topic comments. These people are referred to as ‘trolls’. Most trolls are harmless (and are likely children).

Whatever your intentions when posting online, it is important to know that the worst thing that can happen to you is not a ‘slap on the wrist’ from the forum or website moderator/administrator. That couldn’t be further from the truth. Believe it or not, there can be legal consequences.

To start, there can be criminal consequences when posting comments online.

If you have viewed a thread or visited a chat room, you have probably seen posters act completely ridiculous with each other, even threatening each other. I have seen comments like, “You better hope that we never meet in person because you will be very sorry”. This type of comment could lead to a criminal charge. For more information, you can review section 264 (criminal harassment) and section 264.1 (uttering threats) of the Criminal Code.

While criminal penalties can be bad, civil (i.e. financial) penalties can be even worse. Depending on the amount of money that you could be forced to pay, you could be wishing that you had been taken to criminal court…

A common lawsuit made against Internet posters is for defamation of character. A few weeks ago, I wrote about defamation: Sued for spreading rumours? For easy reference, a defamation lawsuit follows when a person makes a communication (written or spoken) about another person/organization that hurts the reputation of that person/organization.

And for your information, just because a poster is anonymous in his/her postings does not mean that he/she is immune from liability. People’s real names can and will be located from their ISP (internet service provider). Hiding your name is ineffective.

To illustrate that posters should be careful, consider the following case: Uppal v Diler, [2012] O. J. No. 2713. In this case, the Ontario Superior Court of Justice (Small Claims Court) awarded $22,000 for a plaintiff dentist against the dentist’s former patient. The former patient had sent defamatory emails, uploaded postings on YouTube, and made statements on the website for the Association of Dentists (about the dentist). The Court held that the former patient was deliberately campaigning to harass the dentist and smear his reputation. Interestingly, the Court said that it would have awarded $45,000.00, but the dentist did not seek this amount in his claim.

Also, for your information, websites hosting threads/forums need to be careful, too, in ensuring that defamatory comments are not posted on their websites. If defamatory comments are present on a website (about a company or a person), that website may receive demand letters (from that company or person), requesting that the defamatory comments be removed. It may wise to conform to such letters; while unpopular, it may be financially-wise.

Outside of civil and criminal consequences, your postings can haunt you in other ways (so be careful).

For instance, there are numerous examples of people being fired for posting about their employer. Remember Mark Jen? He was fired from Google after 11 days for posting on his blog about Google, which included comparing Google to his former employer, Microsoft.

Also consider that in personal injury cases, it is not uncommon for ICBC to rely on photos that motor vehicle crash victims post on Facebook. These photographs, of course, show the victim smiling, which ICBC argues is indicative that the victim is not ‘that hurt’ (because people who have soft-tissue injuries never smile, right?). As silly as it may seem to rely on Facebook photos, it happens.

The Quebec Superior Court said it best in Laforest c. Collins, 2012 QCCS 3078:

“The Web has become the most powerful and frequently used medium of communication on earth. It permits wars to be halted quickly, criminals to be quickly captured. Teaching has no limit. Communication can be personal as well as impersonal. The Web can make anyone a celebrity in a few minutes. It can tarnish or destroy a reputation with one click.”

Finally, outside of the legal consequences, Internet posters should be respectful in their posts. It’s like going to a party: just because there isn’t a law that says you should be respectful and considerate, it doesn’t mean that you shouldn’t be.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on November 27, 2012: Risks of posting comments on internet.

Bullying (and legal consequences!)

Do you have a lot of great memories from high school?

 

High school can be fun. But, because of bullies, high school can also be a never-ending stream of embarrassing and frustrating ‘experiences’. And for some people, it’s much worse…

I am sure that by now, we’ve all heard of Amanda Todd, the young and tragic victim of bullying: Amanda Todd’s heart-wrenching story.

Her story isn’t even uncommon…

The 3rd leading cause of death among youths is suicide and at least half of all youth suicides are related to bullying. Suicide from bullying is so common among youths that it has been termed, “bullycide”. What a complete disgrace that it has got to this point…

Amanda Todd’s story has sparked A LOT of interest in how to use the law to stop bullying. And some of the proposed strategies are better than others.

After the tragedy, Premier Christy Clark discussed creating laws to criminalize cyber-bullying and to more severely punish the ‘bully’: Christy Clark says new laws are needed to combat bullying. Christy Clark wasn’t the only one with this idea. Here is an online petition, attempting to criminalize cyber-bullying: Petition to stop bullying.

I appreciate the good intentions in trying to create new, tough laws to stop cyber-bullying. But, quite frankly, creating new, tough laws is a very poor solution to bullying. Criminal law is a blunt tool and not the best way to deal with this social problem.

Maybe I am alone, but I have a very tough time believing that the Criminal Code or other punishing laws will be used against bullies in grade school. I can’t see Crown Prosecutors approving charges against school-yard bullies and I can’t see police officers spending much time investigating into such cases, either.

Also, for your information, the Criminal Code already deals with bully-type behaviour. For instance, it is a crime to threaten another person or another person’s property (section 264.1 of Criminal Code). It is also a crime to harass, follow, or repeatedly communicate with a person, causing that person to fear for their safety (section 264 of Criminal Code). For your information, this section is often used in cases where an ex-boyfriend continues to follow around his ex-girlfriend (i.e. in ‘stalking’ cases).

So, what is a better legal strategy to combat bullying? Well, in a previous column, I suggested suing the school authorities if the children are not protected: Bullies, schools, and lawsuits.

The argument was as follows: there is a legal obligation that children receive schooling and, if children attend a public school, school authorities owe a duty to keep those children safe and protected against preventable and foreseeable harm, including harm from other children. If school authorities fail in keeping children safe from preventable harm, then the school authorities should be held accountable. And, if schools are held (financially) accountable, then school authorities are fiscally motivated and will do whatever they can to prevent and detect bullying.

School authorities have been sued in these types of cases all over Canada: Taking schools to court. This is great. It is also great that, in September 2012, the Supreme Court of Canada ruled that a youth could hide her identity when she launches legal action against cyber-bullies: Top court protects anonymity.

The downside to civil litigation (i.e. suing schools) is that litigation is expensive and slow. While it may (eventually) get justice for the victim, it is hardly the best way to deal with a school-yard bully.

So, can the ‘law’ really be used to help stop bullying? Answer: yes, BUT there also needs to be A LOT of work done in other areas, like parenting and in the education system (to stop bullying before it starts or stop it immediately after it starts).

There is no way that I can fully address this topic in this column. But, before I conclude, I will say that I was excited to hear about a new online tool for students to report bullying. Using this online tool, students could anonymously report instances of bullying. The reports would then be sent to school coordinators who would decide whether or not school authorities should investigate or whether or not police should be involved.

In closing, I am happy that there are some great efforts being made. But, with that said, it is infuriating that another person had to die before this issue got the attention that it deserves.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on November 20, 2012: Bullying and legal consequences.