About the App Last week, Prime Minister (“PM”) Trudeau announced there will be a voluntary nationwide contact tracing app coming soon. According to the PM, this app will alert Canadians if they’ve come into contact with someone who tested positive for COVID-19. Ontario will be the first to get this app on July 2. The government emphasizes that it will be important to use during the potential second wave as the Canadian economy slowly enters reopening. How it works? People who test positive upload their results anonymously COVID Alert, the app, using a temporary code that is given to them by a healthcare provider. Using bluetooth technology, the phone records and stores all app users that have come into close contact. If an individual has tested positive, they anonymously upload their results to the app. The app would then notify all close-contacts and may direct them to self-isolate for up to 14 days. The information that is uploaded will then be shared with other users to see if they have been near someone who has tested positive. How anonymous is anonymous? Although the app uses bluetooth technology, privacy remains a concern. Could uses be tracked using bluetooth identifiers? App Specifics from the Government The government considers this app to be low maintenance, as it runs in the background, uses bluetooth, no geotagging or location services of any sort. The federal Privacy Commissioner worked on the app, in an effort to connect cases and better document the spread of the virus. The intellectual property rights for the app will be granted to the federal government. Although healthcare falls within provincial jurisdiction, the pandemic is a national emergency and concern which has led to the federal government playing an increasing role in healthcare. The development and ownership of the app are the federal government’s intellectual property. What are Tech Companies Doing about this? Google and Apple have been limited to creating one COVID tracking app per country. I find this to be helpful as information is synced on one platform for all users in that nation. This provides streamlining the information. There are issues regarding syncing app information with that which exists through Alberta’s pre-existing app. Although this restriction creates a limited marketplace which forces individuals to use one app, I would consider this app to be synonymous with Amber Alerts on our phones, as opposed to multiple GPS app options. What are other nations doing? Many countries across the globe introduced COVID-19 tracking apps to their population post March 2020. While in some countries these apps are voluntary to download (Australia, Japan, and Germany), other countries (India, South Korea) mandated their citizens to download the app. The goal of the app, reiterated by governments, is to track those who have the virus and where they’ve been to caution close contacts and the general public from visiting hotspots. Is this democratic? These are questions that come to mind. The world we live in today people already voluntarily gives out a lot of personal information through cookies, accepting terms and agreements without reading them, and through the usage of social media to store our ideas into the virtual space forever. What makes this app different? Well we’re downloading something onto our device, what would it have access to? In Alberta, the COVID app, ABTrace Together, uses bluetooth as opposed to wifi, and it doesn’t require a phone number or name to be associated with the mobile phone itself. It differs from Australia where it is mandatory to provide these personal characteristics (but the information is said to be stored for only 21 days). In Italy, the app deletes information by the end of the year while keeping it anonymous. The right to delete the data when this pandemic is over, is an important factor to consider. There is a concern of how effectively the centralized system can dispose of personal data, and if users can verify that it has been done. Can an argument be made that this is for the public good? I would agree that this app would be important in knowing where an individual who contracted COVID has visited to ensure that others get tested. But would this be a way to outcast individuals from society and where is this information going to be stored? Can it be used to prejudice individuals from opportunities (e.g. access to medical information for employers, which is something that is currently still protected in Ontario that we aren’t required to share our medical history, decreasing a ground that we cannot be discriminated against). At the start of this pandemic, we have seen that Asian-Canadians experienced more racism. This app is a double edged sword - while it provides the benefit of protecting public health, it can also alienate & amplify stereotypes. Data in this society is crucial. Especially with big data analytics being on the rise. Companies profit from selling information about consumer preferences. So where does this app come in? Data has no boundaries, so can this app be considered domestic or can the data be stored across the world? The threat of IP theft continues as the cyber spy agency warns that foreigners could try to steal intellectual property from Canadians as being guise as COVID-19 relief impacts. My Opinion The fact that this app is voluntary will create a disparity in the results. Evidently, governments should not have authority over what the population should download on their phones. Pierre Trudeau’s comment “There's no place for the state in the bedrooms of the nation” could be updated to say that the state has no place in the cellphones of individuals. However, with the implementation of a voluntary contact tracing app, there needs to be significant uptake for the data to be representative and effective. I do think not everyone who tests positive will be uploading their results in fear that the information will come back to haunt them later in life. I also am skeptical to see how many people will download the app, will it be one person per household or everyone in it? My guess is that there will be very limited usage but that is just an observation based on the individuals I’ve spoken to. This app seems like it could disenfranchise individuals through the government having control over health related data via technology. Primarily, my concern is with data storage. These apps are being developed by Apple and Google. Although it is voluntary, low maintenance and requires little battery, there is a lot on the line. Storing information as such on a grand scale is different from the Health apps that people usually use to track their fitness. This app is one that relates to illness and I don’t know if our world can handle open data about one’s health without having all the answers. By: Karen Randhawa The tragic death of George Floyd has sparked many questions around how our social infrastructure can better destroy systemic barriers that have long excluded Indigenous and Black communities. While many solutions hinge on restructuring our policing regime, lawyers and judges alike have a significant responsibility in improving the treatment of Black and Indigenous offenders in our criminal justice system. Disproportionate incarceration rates remain a well-documented and distressing reality for visible minorities. Even though Indigenous people only represent 4.9% of the total Canadian population, they made up nearly 24% of the federal offender population in 2018. Likewise, only 3.5% of the Canadian population identify as Black, but data reveals that 7.3% of the federal offender population is Black. [1] Since media outlets have greatly emphasized the happenings in the US, it is easy to deny that systemic racism persists on Canadian soil. Ontario Premier Doug Ford recently stated Canada does not have the same ‘systemic, deeps roots’ of racism as the United States. Although he has since detracted from this statement, it is important to recognize that Canada, like its neighbour down south, was built on ideologies of white supremacy. [2] From enslaving nearly 3,000 people of African ancestry between 1628-1800s to instituting residential schools to take 150,000 First nations, Inuit and Métis children from their families, Canada is no different than the US. [3] Systemic racism is a complex and multidimensional issue that affects the everyday life of people of colour. As such, our governments must develop tailored solutions aimed at demolishing racial barriers in the economic, political and social spheres. Reforms to the criminal justice system is only the tip of the iceberg. The Impact of Gladue Reports on Indigenous Offenders R v Gladue (1999) was a milestone decision that reinforced the restorative principles of sentencing codified under s.718.2 of the Criminal Code (CC). In a nutshell, the accused, an aboriginal woman, pled guilty to manslaughter for the killing of her common law husband, following a violent dispute. The judge sentenced the accused to three years imprisonment, concluding that the offence very serious. The accused appealed on the grounds that the sentence was inappropriate. Both the British Columbia Court of Appeal and the Supreme Court (SCC) dismissed the appeal. The issue in the appeal to the SCC concerned the proper interpretation and application of s.718.2(e) of the CC. The provision reads: 718.2 A court that imposes a sentence shall also take into consideration the following principles: ... (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. The accused argued that the judge at first instance failed to consider factors that may have led to the offence. The SCC rejected the argument. Justice Cory and Iacobucci, for the majority, concluded that the judge had accurately contemplated mitigating and aggravating factors. Mitigating factors included the fact that the appellant was only 20 years old at the time of sentence, that she was a mother of two and expecting a third. On the other hand, the trial judge acknowledged several aggravating circumstances. The accused had stabbed the deceased twice and made remarks after the stabbing insinuating that she had intended to cause serious harm. As a result of the SCC decision, s.718.2(e) requires “both consideration of alternatives to the use of imprisonment as a penal sanction generally, which amounts to a restraint in the resort to imprisonment as a sentence, and recognition by the sentencing judge of the unique circumstances of aboriginal offenders” (para 38). This evolved into what is known as Gladue reports. In essence, these pre-sentencing reports call upon judges to apply an alternate sentencing method that accounts for the unique systemic and background factors which may have played a part in bringing the particular aboriginal offender to court (R v Ipeelee). They are often prepared by Gladue caseworkers at the request of the defence counsel, the Crown or the sentencing judge. It is important to note, that R v Ipeelee established that an accused does not have to show a causal link between their Indigenous background and the offence committed. Gladue reports can include information about the Aboriginal offender’s history with residential schools, child welfare removal, physical or sexual abuse and any underlying health issues. Gladue reports, however, have received an immense backlash since the SCC’s decision. The overrepresentation of Indigenous offenders has been ever increasing. Between 2013 and 2018, the Indigenous population within Canadian correctional facilities has increased by 14.7%. [4] A 2008 study conducted by Welsh and Ogloff found that the s.718.2(e) interpretation “underestimated the true complexity of the over-representation problem”, finding that Indigenous status alone has little influence on sentencing decisions. The study concluded that sentencing decisions placed an emphasis on the aggravating and mitigating factors (such as offence seriousness and prior criminal history), rather than factors specific to Indigenous communities.[5] Therefore, the Gladue decision requires that sentencing decisions must sufficiently delve into the cumulative effects of colonialism and its ongoing legacy within the criminal justice system. Courts must attempt to reject Western perspectives on the purpose of criminal justice, in favour of processes that rebuild Indigenous communities and respond to the broader question of reconciliation. With this shift in perspective, Gladue reports can become an effective tool during sentencing hearings. Gladue and Black Offenders Although, Black and Indigenous communities do not share the same history, there is no doubt that both communities have relentlessly endured systemic discrimination and remain ostracized today. As such, in my opinion, the criminal justice framework must extend Gladue principles to members of the Black community, when making sentencing decisions. This approach was recently applied in R v Morris, whereby Justice Nakatsuru allowed evidence in regard to the Black accused’s personal circumstances. In brief, a jury had found Mr. Morris guilty of a number of offences, including possession of an unauthorized firearm, possession of a prohibited firearm with ammunition, and carrying a concealed weapon. Mr. Morris was arrested in December 2014, when the police received a call about a home invasion in Scarborough. The accused, along with three other young men, were stopped at a nearby parking lot by officers in plainclothes and unmarked police cars. Mr. Morris proceeded to run, eventually colliding with a police officer’s vehicle. He continued to run and was later found outside a grocery store. The police found a loaded revolver in his jacket, hidden at the bottom of a stairwell. While sentences for gun offences tend to be three or more years, the defence argued that the sentence should be one year. Justice Nakatsuru reiterated that sentencing was a “very individual process”. He concluded that s.718.2(e) enabled judges to consider the social context of Black Canadians as well. In his judgment, Nakatsuru acknowledged that systemic factors such as “the history of colonialism, slavery, policies and practices of segregation, intergenerational trauma, and both overt and systemic racism that continue to affect Black Canadians” (para 9). The decision hinged on two reports brought by the defence. First, a report on anti-black racism in Canada generally, highlighting the experiences of Black Canadians within the Toronto region. Second, the judge admitted evidence about the social history of the accused, from a social worker. He placed an emphasis on admitting such evidence during sentencing hearings, in light of the overrepresentation of Black offenders in Canada. This is vital since the goal is to arrive at a fit and proportionate sentence. The more I know about you and your crimes, the better can I arrive at such a fit sentence. This is particularly important when it comes to tackling the problem of the disproportionate imprisonment of Black offenders. If we cannot have resort to such materials, we will never begin to do better. As a result, Mr. Morris was sentenced to one year imprisonment.
I couldn’t agree more with the decision rendered by Justice Nakatsuru. I believe that judges and lawyers have a duty to recognize that Black and Indigenous persons continue to bear the burden of our criminal justice system. Broadening the interpretation of s.718.2(e) to include Black offenders is only one solution to high incarceration rates amongst marginalized communities. Since the decision was rendered at the Ontario Superior Court of Justice, the decision is deemed to only be persuasive precedent. The SCC has yet to rule on the admissibility of background evidence for other minority groups and the broadened interpretation of s.718.2(e). Nonetheless, the federal government must codify this interpretation to guarantee a consistent and equitable approach to sentencing of Black offenders. By Lucinda Chitapain When the news broke out about the R v Chan & R v Sullivan appeals, I was furious to say the least. I could not believe that the Ontario Court of Appeal (ONCA) would set back the women/children’s rights movement by enabling defendants to use intoxication as a defence to sexual assault. However, these cases were not about sexual assaults & the rulings were more complicated than what was depicted by news outlets. What happened here is just another example of irresponsible media reporting - one that I, like the rest of Ontario, fell victim to. After coming to this realization (largely owing to Stephanie Guiseppe’s tweets & our in-house crim law expert, Samantha Heggart), I knew I had to write on this to clarify what the decisions are actually about. If a person like me, who is more informed about criminal law than the layperson, could be misled about the impact of Chan and Sullivan on the law then I can only imagine how many others are still mistaken. Automatism Before getting into the details of the cases, a quick crash course on the not criminally responsible (NCR) regime in Canada will help situate the discussion on Chan and Sullivan. Matt C. Zaitchik, PhD, states that the “term automatism refers to motor behavior that is automatic, undirected, and not consciously controlled.” Under the NCR regime, there are two types of automatism - mental disorder (MD) automatism and non-mental disorder (NMD) automatism. A defence of MD automatism negates the mens rea element as the defendant could not appreciate the consequences of their actions owing to their mental disorder. A defence of NMD automatism nullifies the actus reus element by proving that the actions of the defendant were not voluntary. There are two subbranches in NMD - insane automatism, when the state of involuntariness is brought on by a mental disorder and non-insane automatism, when there is an external trigger causing the automatism. Both Chan and Sullivan are trying to raise a defence of non-insane automatism. There is a preference for raising a NMD defence. While three dispositions are available for a successful MD defence - absolute discharge, conditional discharge or detention in a psychiatric facility, a successful NMD defence results in an acquittal. At the trial level Thomas Chan was under the influence of magic mushrooms when he attacked his father and his father’s partner, Lynn Witteveen. His father died from the attack and Ms. Witteveen suffered severe injuries. Chan was charged with murder and attempted murder. David Sullivan was an addict of the prescription drug, Wellbutrin. He overdosed on the drug in a suicide attempt. Instead, the drug propelled him into a state of automatism in which he stabbed his mother repeatedly. At court, Chan first tried to raise a defence under section 16 of the Criminal Code, claiming that he could not be held criminally responsible for an act committed while suffering from a mental disorder. Justice Boswell of the Ontario Superior Court of Justice (OSCJ) rejected this defence because at the time of the offence, Chan was in a state of toxic psychosis, not a mental disorder. Afterwards, Chan applied for an order to get section 33.1 of the Code struck down on the basis that it violated s.7 and s.11(d) of the Charter. Section 33.1 of the Criminal Code was enacted in 1995 as Parliament’s response to the Daviault decision. In Daviault, the defendant was an alcoholic who sexually assaulted an elderly and disabled woman after becoming extremely intoxicated. The Supreme Court of Canada (SCC) found that there is an exception to the prohibition of using self-intoxication as a defence to general intent crimes per Leary v The Queen (1978). Jordan Gold from Robichaud’s explains the distinction between crimes of general intent and specific intent well. Gold stated that while specific intent crimes require a high level of intentionality, for crimes of general intent “the court will presume that a person intends the direct consequences of their actions.” Sexual assault is a crime of general intent. The SCC held that a person cannot be held criminally responsible if they can prove, on a balance of probabilities, that their self-intoxication placed them in a state of automatism, a state of absent awareness. In such a state, they cannot satisfy the voluntariness element of the actus reus. Chan challenged the constitutionality of section 33.1, an extremely controversial provision. He had two arguments to support this contention. First, the court should bind itself to its former ruling in R v Dunn. In Dunn, the ONSJ implied that section 33.1 was unconstitutional. The rules of stare decisis however state that courts are only bound by decisions of higher level courts, even though decisions of courts of similar status or the same court can be persuasive. Second, Chan argued that the current court should strike the section down for being unconstitutional vis-a-vis his section 7 right to life, liberty and security of the person and his section 11(d) right to full answer and defence. Justice Boswell found that while section 33.1 does breach these constitutional rights, the section is saved by section 1. Sullivan first attempted to argue that section 33.1 did not apply to him because his intoxication was not voluntary - he ingested the drug in a suicide attempt, not to get high. After the court rejected his argument, he moved forward with an argument similar to that of Chan’s. Ontario Court of Appeal Given the similarities between these two cases, two men who became “automatons” after ingesting psychedelic drugs, committed violent crimes and are now challenging their convictions on the basis that section 33.1 unconstitutionally deprives them of the non-mental disorder automatism defence, the appeals were heard together. The ONCA, in a 3-0 decision, struck down section 33.1. In establishing the prima facie breach of Charter rights, the court identified three infringements: the voluntariness breach, the improper substitution breach and the mens rea breach. The voluntariness breach had been discussed previously. The improper substitution breach of section 11(d) refers to section 33.1 substituting voluntary intoxication for the mens rea element - it presumes that if someone voluntarily gets drunk/high and commits a crime, then they satisfy the mental requirement. This in violation of a defendant’s section 11(d) right to be presumed innocent until proven guilty. In R v Creighton, the constitutional minimum of fault level for criminal offences is penal negligence which is a “marked departure from the standard of a reasonable person.” While the Crown purported that section 33.1 meets this minimum stand of penal negligence, it is difficult to establish foreseeability between voluntary intoxication and violence. In reevaluating section 33.1 with the Oakes test, the ONCA came to the conclusion that the law fails at minimal impairment and proportionality. Lessons learned This incident has been an eye opening experience. It is clear that regardless of how reputable a news outlet may be, critical reading and research are musts. Although the decision can impact sexual assault cases, as automatism triggered by self-intoxication is now a valid defence, the defence of automatism is rarely raised and even more rarely is successful. You can read the decision here: https://www.ontariocourts.ca/decisions/2020/2020ONCA0333.htm By: Veena Ganesarasa
We’ve decided to halt our COVID-19 series to reinforce something that is of international importance, Black Lives Matter. Amidst a global pandemic, it is especially heartbreaking to see the recent events that have transpired in Minneapolis. Unfortunately, this is not an isolated event. Anti-Black racism is deeply ingrained in our social structures.
On May 25, 2020, Derek Chauvin (former police officer in Minneapolis) used knee restraint on George Floyd’s neck, contrary to protocol, resulting in Floyd dying. His neck was pressed for approximately 8 minutes, which can be seen in a bystander’s video surfacing the internet. While bystanders urged the officer to stop, the other police officers on site failed to intervene. Why did the police restrain him? Floyd was at a grocery store when an employee called the police accusing him of passing a counterfeit $20 bill. Upon the police’s arrival, Floyd, who was unarmed, was quickly brought to the ground and restrained. According to the Minneapolis police department, Floyd resisted arrest, but as seen in the bystander’s video, Floyd promptly surrendered. Hence, he was not posing a threat that would warrant the use of violent restraints and force from the police officers. To put things into perspective, America is seen to be a country of opportunities, a superpower, a democratic leader of the “global north.” However, this incident shows that the system is deeply flawed in the nation, where the allegation of a counterfeit bill at a supermarket has resulted in a man losing his life. What’s the current situation with the police officers? Since the death of Floyd, the four responding officers, including Chauvin have been fired. The FBI is currently investigating whether Floyd was deprived of his civil rights. Chauvin has been charged with third degree murder and second degree manslaughter, with bail being set at $500,000. This has left the community extremely outraged. Many believe that Chauvin’s actions constitute first degree murder. The current investigation is taking a deeper look into the obligations of police officers in such situations. The executive director of the Police Executive Research Forum, Chuck Wexler, stated that “no police academy teaches a police officer to use their knee to put it on their [the person that they are arresting] neck… because that can impact their breathing and their carotid artery [a crucial vessel that supplies blood to the brain].” In addition, police officers are taught to get their suspect off the ground as soon as possible, to sit or stand to ensure that the suspect could breathe. The Aftermath His last words - “I can’t breathe” - have rung across the world. When this video surfaced on the internet, thousands of demonstrators took to the streets in cities across America. Curfews are being enforced, people are being arrested. Enraged by the persistent disregard of Black lives, protesters have turned to looting to make their message heard. The Problem The issue cannot be summed up in a mere post or two. It is sadly not the first time that police officers have used improper procedures when arresting Black people. These protests are being fuelled by the need for change. Ahmaud Arbery was shot in his neighbourhood while he was jogging on May 5. Since there was video footage of the shooting, Gregory and Travis McMichael were charged for aggravated assault and felony murder. Breonna Taylor was shot seven times in her apartment when police officers came to search her apartment. This spurred the call for action that officers need to wear body cameras while conducting searches to document the events that take place. All three incidents involve the death of an African American, and highlight the unrelenting police brutality against Black individuals. The public outcry has escalated internationally, asserting the need for change. International Implications For those who are reading this outside of the US, it’s not just an American issue, it’s international. Unfortunately, racism is deep-seated in the history of countries around the world. In Canada, we like to live under the misplaced notion that racism, particularly Anti-Black racism, does not exist. However, racism plagues Canadian economic, political and social structures. Black people are systematically discriminated at essentially every touch point, whether it be policing, employment or being subject to comments in social settings. The current events show that it is time we change that and recognize that race is a social construct. By: Karen Randhawa Last week, the Ontario government announced that schools will not be reopening for the school year. Students enrolled in summer school are taking courses online. Universities have sent emails stating that it is likely that the fall semester will be online with smaller classes/labs to be held in person. In light of these updates, two major issues affecting university students have surfaced:
The Res Life University and college residences are not protected by rental rules under the Residential Tenancies Act. At this time, universities are developing a residence strategy for Fall 2020. Universities across the country have done a phenomenal job by posting on their respective pages the housing responses to COVID-19, which are regularly updated. These pages provide information on how to apply for a refund for those who evacuated their residence, and information about summer accommodations for people who are unable to return home. The FAQ pages state that students have two options: either they can receive a refund of their residence deposit by July 15, or have their deposit forwarded to the Winter term. Only single rooms will be open for residence, and common areas will be closed due to the need to practice social distancing. Keeping these changes in mind, is it fair to charge students the same amount of money for residence, given that many facilities will be inaccessible in the new school year? Off Campus Accommodation Ontario published rental changes during COVID-19. The government acknowledges that not everyone can afford to pay their rent, and thus did not create a blanket rule for all to follow. The application of the rules depends on the situation and circumstances. The province-wide strategy encourages landlords and tenants to reach fair arrangements that suit the needs of both parties during these difficult times. The website states “tenants who can pay their rent must do so, to the best of their abilities.” But what about students? Students who may not be moving back this fall but have already signed a lease? This creates room for issues. While some may have been able to sublease their place over the summer, it is difficult to say whether they will be able to do the same for the fall term. The rental scheme includes guidelines for landlords facing financial burdens. Landlords are given the option to discuss with their municipality about assistance with property taxes and municipal service fees. Likewise, banks are willing to cooperate with landlords to defer mortgage payments during this time. In British Columbia, a rental supplemental program was introduced that provides $500/month to low and moderate-income renters experiencing loss of income and hardship due to COVID-19. However, this amount would not suffice in Ontario where the average rent is $1273. In Toronto, there is the Toronto Rent Bank which provides no interest loans to low income renters who face evictions. However, this relief is for two months even though the pandemic is expected to impact the fall term which would mean upwards of six months. Contractual Implications Since April 30, 2018, leases are written in a standard template. This lease is written in simple language and is inclusive of the rental amount, due date, amenities covered in the rent, and the rules about the rental unit. Renter and landlord rights and responsibilities are explained. Since a lease is a contract, it is subject to the laws relating to contracts. Thus, is there a possibility that these leases can end because of COVID-19? Cessation Some leases have cessation clauses, where the tenant has duties and cannot simply walk away from the lease. Extinguishing the lease would create bad blood between the landlord and the long term tenants. Leaving the landlord out to dry and moving the stuff back? Not the most efficient way. Force Majeure A force majeure provision is either an act of God or a defined provision which such as a fire, flood, war or insurrection. There is no common law doctrine of force majeure. In Canada, a force majeure clause can only be relied upon if it exists strictly in the contract. Most leases don’t have a force majeure provision which would allow parties to terminate the lease or other obligations without a penalty. If such a clause exists, university students could most likely rely on this, since governments have imposed travel bans and quarantines. However, by the fall semester most of the economy is expected to open up and stay-at-home orders are likely going to be loosened, which may weaken tenant claims relying on the force majeure clauses. In order for a force majeure provision to be invoked, the destruction needs to be permanent in nature. Other factors besides Force Majeure could be:
If force majeure cannot be established, tenants may seek relief through the doctrine of frustration. Frustration In order to argue a contract has been frustrated, the tenant needs to argue that there was an unforeseen event which is:
There is a high bar to pass according to the test set out for frustration in Davis Contractors v Fareham. The party claiming frustration must show that the nature of the contract has drastically changed and that it would be unjust to hold the parties to the contract. COVID-19 has led to unprecedented circumstances. The government made orders under state of emergency for non-essential businesses, thus impacting wages to pay rent. There is yet to be case law that shows the impact of a pandemic on a frustration argument. In Canary Wharf v EMA, it was decided that Brexit did not frustrate the terms of the lease and rent needed to be paid. In Australia, it is difficult to request rent reduction or abatement, as frustration is not easily arguable in the context of a lease. In India, even if individuals are unable to use the premises during a period of closure, they will be bound to pay rent. Delhi High Court released a decision saying “temporary non-use won’t make rental lease void.” If the contract is found to be frustrated, the Frustrated Contracts Act applies:
Unconscionability Is it unconscionable to ask for rent when the property is not being enjoyed? If the landlords are deferring mortgage payments, but still charging rent, how is this fair? There is no mechanism in place to ensure that landlords who are asking for these deferrals are in fact providing relief to their tenants. This situation further highlights the power imbalances between landlord and tenants. COVID-19 is an unprecedented situation, which has impacted everyone on the planet. The level of uncertainty that university students face when it comes to their future is at an all-time high, arguably worse than the 2008 recession. It is a matter of health and safety. Not moving into private accommodation near the university is a way to promote social distancing. However, if students are required to pay their monthly rent, this adds to the pressure of meeting ends by being responsible for rent for unoccupied/ unused land. By: Karen Randhawa Social distancing has shown to be an effective tactic at flattening the curve across jurisdictions. However, persuading entire populations to abandon their daily lives and routines to isolate in their homes is not an easy feat. Rather than solely relying on public service announcements to convince citizens to respect stay-at-home orders, the government has relied on fines and charges as enforcement mechanisms. Fines & charges The fines are administered through city by-laws, meaning that there isn’t standardization across the country for violating stay-at-home orders. Cities have no constitutional status - they are “creatures of the state” or the creating province. The powers that cities have are flowed through to them by their respective provinces. The provinces are enforcing their stay-at-home orders through public health acts. If a law in pith and substance pertains to their constitutional power over healthcare and its criminal law implications are incidental (as criminal law falls solely within the federal jurisdiction), then the law can still be deemed constitutional. The stay-at-home orders likely fall under civil rights. While Prime Minister Trudeau has publicly stated the possibility of implementing the Emergencies Act to enforce the stay-at-home orders, the government has yet to do so - likely due to the high controversiality of the Act. The fragmented regulatory environment, owing to the provinces and cities spearheading enforcement, combined with the need for timely action, raise concerns about inconsistencies. First, the amount and administration of fines vary depending on the city. In Toronto, fines can range from $750 to $10,000 for individuals and up to $10 million for businesses. These are issued by police officers. Originally in Montreal, infractions were reported by police officers and it was within the discretion of Crown Prosecutors to charge the individuals between $1,000 to $6,000. By early April, Montreal modified its approach, authorizing police officers to lay charges. The range in fine amounts gives law enforcement considerable discretion in charging. Second, there are differences in what is considered a violation of the stay-at-home orders. In Calgary, only those who were blatantly in violation of the stay-at-home orders, for example street preachers, have been charged. In contrast, Melissa Leblanc of Montreal was fined $1,546 for having friends visit her for her birthday even though they were in their cars, maintaining the advised 2 metre distance. These jurisdictional differences in what is considered a violation seem arbitrary given that stay-at-home orders fall within the scope of criminal law, as they satisfy the Margarine Reference triple P test for criminal law. According to the Margarine Re, a law is deemed to be a criminal law when it has a Prohibition, Penalty (fine, imprisonment) and a Public Purpose. The stay at home order constitutes a prohibition on certain activities, accompanied with penal sanctions, for a public purpose. As such, there seems to be some rationale in establishing a national standard for the criminal sanctions associated with violations of stay-at-home orders. Furthermore, the laws around violations are quickly changing within jurisdictions as cities and provinces are trying to respond to the progression of COVID which creates confusion around what is lawful. As Abby Deshman from the Canadian Civil Liberties Association explains “ultimately when the law is unclear it’s left up to frontline law enforcement to decide who and when and how they will enforce those vague provisions and that opens the door to discriminatory enforcement and arbitrary decision-making.” Impact on minorities Mapping the Pandemic, a project by Alex Luscombe and Alexander McClelland from the University of Toronto, plotted reported infractions between April 4-13 which they collected from media articles, police releases and social media posts. Their study shows that the ticketing disproportionately affects individuals who do not have the ability to comfortably self-isolate due to their living conditions or have not been effectively informed about the spread of COVID-19. Given the systemic barriers faced by people of colour in housing, employment and various aspects of life, it takes no stretch of imagination to visualize who these individuals are. Privacy On April 6th, the Ontario government announced that they will be sharing information on COVID-19 positive individuals with first responders, including police, firefighters and paramedics. This information includes the names, date of birth and addresses of the patients. The CCLA states that this increased access to healthcare information, which has traditionally been heavily protected, raises concerns for privacy. As a greater number of individuals are now accessing this information, there is a heightened risk of privacy breaches and hacking. As CCLA recognizes, the benefits of this increased access are not clear given that testing information is often outdated. What is the public policy rationale behind the expansion of access if the benefits do not warrant it? So what? From reviewing the changing to policing and enforcement in light of COVID, it has become evident that it is imbued with vagueness and uncertainty. There needs to be change in the regulatory environment to make the rights and obligations of citizens clear. By: Veena Ganesarasa The Canadian government’s decision to close its borders, in an effort to prevent the spread of COVID-19, has wielded a substantial impact on the Canadian immigration system. Amongst several measures in response to COVID, the Immigration and Refugee Board (IRB) has paused all in-person hearings and the Immigration, Refugees and Citizenship Canada (IRCC) has come to a temporary agreement with the United States (US), which allows Canada to turn away irregular asylum claimants that have entered through the US-Canadian border. The suspension of IRB hearings has left asylum-seekers uncertain about their status and their fate in the country. It is particularly difficult for the hundreds of asylum seekers detained by the Canadian Border Services Agency (CBSA), awaiting their IRB hearings. In its call to action, Amnesty International has urged the Canadian government to consider the health of detainees and to develop an effective plan aimed at preventing both physical and psychological harms. The CBSA has made some progress, with the number of immigration detainees in provincial detention centres dropping from 353 detainees in March to 147 detainees by April 19th. While these numbers are promising, some concerns arise about the lives of these newly released individuals. (Read more about it here:https://globalnews.ca/news/6861756/canada-releasing-immigration-detainees-coronavirus-covid-19/) Asylum-seekers often do not have family or a viable source of income within Canadian borders. Given the current state of the country, there is no doubt that resettlement has become a difficult task for refugee claimants. Comprehensive resources must be allocated for these individuals, who likely need assistance in housing, employment and legal affairs. The current agreement with the US, however, questions Canada’s commitment to the 1951 United Nations Convention on the State of Refugees. When Canada ratified the Convention in 1969, it agreed to protect the lives of those who have a well-founded fear of persecution. In returning individuals back to the US before hearing their refugee claims, Canada has deeply contradicted the core principle of the Convention. This sort of agreement is not new to the IRCC. In 2004, the US and Canadian governments signed the Safe Third Country Agreement (STCA) which prohibits people from entering Canada through the official US-Canadian border, if they have already sought protection in the US (and vice versa). The purpose was to alleviate the domestic pressures on the countries’ immigration systems. Many human rights advocates have criticized the STCA on the basis that it violates Charter rights to life and security. Although these are uncertain times for governments across the world, Canada hs an obligation to uphold its commitments in the Convention. Rather than turning away potentially legitimate claimants and reneging on international commitments, alternative methods must be adopted to process asylum claims amidst these difficult times. By Lucinda Chitapain The rule of law indoctrinates that “everyone is equal before and under the law.” At a normative level, it’s seen as a great idea to foster. However, the law in practice deviates from this central principle. During a pandemic, existing inequalities in our societies are amplified at micro and macro levels. At the micro level, low income individuals are more susceptible to contracting the virus because of their status as “essential” workers, lack of access to protective wear, inability to afford to socially distance and relatively weaker immune systems. These micro inequalities are on a global level, whereby wealthier nations with stronger healthcare systems fare better than poorer nations. This pandemic has shed light on the extent of inequality in today’s world - there are those who are socially distancing in their vacation homes and those who do not even have a place to call home. "Go Home, and Stay Home"Social distance in your homes -- but what if you don’t have a home? A study conducted by scholar and colleagues showed that two effective means of containing the spread of COVID are to practice social distancing and to engage in contact tracing, the process of monitoring the interactions of a positive case. But how can a homeless person socially distance when they do not have a home? How can a homeless person meet their basic needs when access to public washrooms, recreational centre showers and non-profits providing services (i.e. clean clothes) is restricted? About 35,000 Canadians experience homelessness on a given night, and 235,000 Canadians are homeless in a year. Over 50,000 Canadians experience “hidden homelessness” as they sleep in cars, couch surf, or use precarious housing. Growing up in the 21st century, we have taken homelessness as a given. However, before the 1980s, chronic homelessness was not acknowledged as a serious national concern. Homelessness as we know it today emerged largely owing to the dismantling of social protections starting in the mid-1980s, as Canada embraced neoliberalism and its accompanying fiscal austerity measures. Homelessness is in part driven by modern conceptions of property. Legally, property is a relationship between individuals and chattels with varying rights and bundles. However, in the current context, property has become more of a thing rather than a relationship. This sort of thinking reinforces unequal power dynamics within society as those who have the upper hand, economically and politically, amass more property than marginalized populations. The power dynamics are further exacerbated by the flood of investment in the retail market by investors, turning potential housing units into investment properties and short-term rentals. Section 25 of the Universal Declaration of Human Rights states that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including… housing.” The Charter does not recognize a formal right to housing and litigants have yet to be successful in raising a claim on section 7 and/or 15 grounds. The Right to Housing case (Tanudjaja v Canada Attorney General), while not successful in their Charter challenge, did prompt the establishment of the National Housing Strategy - a commendable step in reducing chronic homelessness. Canada's ResponseDuring a pandemic, are we really doing the most for those who have the least? Affordable housing is scarce and homeless shelters frankly do not have adequate resources to meet demand. Shelters are mandated by protection protocols to ensure that those who occupy them are safe. Thus, decreasing the capacity or resources to house the homeless population. Further, the recent release of inmates, in an effort to prevent overcrowding in jails, can be problematic. These newly released individuals may not have access to stable housing, inhibiting their ability to practice social distancing. The federal of government has been formidably proactive with their homelessness strategy during COVID. In April, the government dedicated $157.5 million to address the needs of Canadians experiencing homelessness through the Reaching Home program. The City of Toronto has leased/ bought 12 private hotels throughout the city, where homeless individuals, who have contracted COVID, are being housed during their recovery. Currently, there are 200 beds available. There are plans to increase the scale of the initiative, by investing in another 15 properties. This unique collaboration amongst the city, NGOs (Doctors without Borders, The Neighbourhood Group) and the University Health Network not only ensures that homeless patients receive medical treatment, but that they also have a home to go to post-recovery. There are an estimated 3,100 tents at Cabot Square. The city offered 222 rooms at the beginning of the pandemic, whilst Toronto had moved more than 1000 people by the beginning of April. The BC government is distributing 3,500 smartphones which can be connected to Wi-Fi and have a pre-loaded $10 7-Eleven data card. These smartphones are aimed at helping coordinate the distribution of bars of soap, food and hygiene supplies, along with COVID-19 symptoms and testing. A tent city encampment at Vancouver’s Oppenheimer Park was cleared up earlier this month. According to authorities, everyone was offered indoor shelter. However, some campers decided to set up camp in a parking lot owned by the Port of Vancouver, which is next to CRAB park. There are more than three dozen people at this park and 20 tents at this point in time. In response, the Port of Vancouver may be taking legal action to remove these tents, on the count of trespassing. Among other factors, whether they have a legal basis for doing so hinges on determining if these tents are prohibiting the general public from using the public property - a question that is further complicated by public parks being closed during COVID. BC Housing is working with hotels as well to relocate individuals facing homelessness for temporary shelters. Vancouver has eight hotels at this time, along with two emergency response centres in recreational facilities. Similar to Toronto, there are outreach workers in place to ensure that these individuals receive support through addiction, mental health and primary care services. Other cities across the nation are pooling in resources. For example:
What about Post COVID-19?The current cost of a monthly suite is $1,200-$1,400. The median annual income for a single person in Canada is $33,000. Based on these figures, cost of a suite at these hotels would result in half of the wages (assuming income tax is taken into account when calculating this average wage.) When taking into account other living expenses, it is clear that the status quo is an unsustainable reality for many. With rent unaffordable and ownership, a far-fetched dream, the question remains as to what is going to happen to Canada’s ever-growing homeless population once the government stops its emergency funding. By: Karen Randhawa
Not to sound like the start of every one of your emails, but this truly is an unprecedented time. We have lived through Y2K, SARS, the Swine Flu and the 2012 Doomsday scare. Despite these experiences, the COVID pandemic shook the international community like no other. This Contagion-like reality is adding stress to our already overworked legal structures. Through this series, we aim to discuss the interactions of COVID at multiple stress points in the legal system. |
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