Law Times

January 25, 2010

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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ..........Tim Shufelt Staff Writer ............. Robert Todd Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. January 25, 2010 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ or Sandy Shutt at 905-713-4337 Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Taking a balanced approach on Haiti I mmigration lawyers have moved quickly to respond to the disaster in Haiti. Following the earthquake, for ex- ample, the Canadian Bar Association announced it was setting up a web site to facilitate links between practitioners willing to help with the immigration process and those seeking to bring their Haitian relatives here. The Canadian government has been proactive as well. In the immediate after- math of the earthquake, it promised sig- nificant assistance, particularly by match- ing Canadians' donations to the ravaged country. At the same time, it vowed to fast-track immigration sponsorship ap- plications so Haitians with ties to Canada can come here more quickly. Not surprisingly, the move has generated debate. Canadians in the process of adopt- ing Haitian children, for example, com- plained last week the government wasn't doing enough to help them get their kids to Canada. At the same time, advocacy groups said the government should open the immigration sponsorship class to include siblings, cousins, and other ex- tended family members. In addition, as reporter Tim Naumetz has described in Law Times this week, some lawyers worry Haitians looking to come here will face legal obstacles, in particular the require- ment that they have a passport. On the other side are concerns that opening the doors so widely to immi- gration applications will allow people who would otherwise be ineligible to get permanent residency here. A common is- sue raised is the fact that the earthquake allowed prisoners in Haiti to go free, some of whom could apply to come to Canada under an expedited process. Is it appro- priate, then, to change how we do things given the risks? Should Canada not have a standard way of handling immigration matters that apply to all scenarios? So far, the government is right to be cautious by facilitating Haitian cases while keeping the basic immigration rules intact. What's important is to make sure that the measures announced don't create unintended consequences by, for example, allowing dangerous people into the country. At the same time, if we find the rules are unduly restrictive and don't achieve the goal of facilitating fam- ily reunification, the government should loosen them. But first, let's give officials a chance to try out the expedited process. Balance, then, is key. While we shouldn't jump to change the rules too quickly, the scale of the Haitian disaster is so unprecedented that doing so may be necessary. In the meantime, the Conservatives deserve credit for reacting so quickly to the humanitarian crisis. It's rare to see a government so often associated with di- visiveness and meanness act so magnani- mously. Whatever the merit of Conser- vative policies, Prime Minister Stephen Harper has never shown much eagerness to truly govern in the interests of all Ca- nadians, including those who didn't vote for him. But now, we're seeing him take decisive action on an issue we all care about. Let's hope his actions on Haiti are a signal he'll act similarly in the future. — Glenn Kauth he Canadian Radio-tele- vision and Telecommu- nications Commission has once again been considering the issue of net neutrality. The recent history of the thorny debate in Canada has its origin in a 2008 decision in which the CRTC addressed a complaint by the Canadian As- sociation of Internet Providers against Bell Canada, a major Internet service provider, with respect to Bell's use of Internet traffic-management practices by slowing down peer-to-peer file- sharing applications. The deci- sion was limited to the treatment of secondary ISPs that were using Bell's Gateway Access Service to offer competing Internet access to their own customers. Along with the decision, the T CRTC issued a public notice to examine the matter more broadly. Given that some of the largest ISPs had implemented traffic-manage- ment practices or had indicated their intent to do so, the com- mission considered it necessary to Assessing net neutrality — again Bits and provide a level of certainty on the permitted uses of them. While it released its framework in October, debate on the issue continues. Under the framework, two categories of traffic-management practices are available to help ISPs manage congestion on their networks. The first category is an economic one where com- panies link rates for Internet services to usage. Many ISPs, for example, now sell their Internet service based on a tiered pricing model where higher monthly bandwidth caps are available for higher monthly fees. Technical traffic-management practices are also available to slow down cer- tain services as a tool to handle temporary network congestion. When ISPs use those tactics, they must address a defined need and nothing more. As a result, they have to ensure that any ac- tions they take aren't unjustly discriminatory or unduly pref- erential. The commission's prior approval is required where an action would result in the carrier controlling the content or influ- encing the meaning or purpose of telecommunications, or in the case of wholesale services where an ISP employs more restrictive traffic-management practices than for its retail services. At the consumer level, ISPs may generally continue to em- ploy such tactics without prior approval by the CRTC, which will review them primarily based on complaints from the public. When ISPs use traffic-man- agement practices, they must be transparent about their actions so consumers can obtain the informa- tion they need to make informed decisions about their purchases. Consequently, the CRTC directed ISPs, as a condition of providing Bytes By Alan Gahtan retail Internet services, to disclose such information clearly and prominently on their web sites. Economic traffic-man- agement practices attract less scrutiny because they are more transparent to users. But tech- nical uses of them, particularly those that result in discrimina- tion or preference, would be subject to greater scrutiny. In those cases, the ISP must estab- lish that its actions are designed to address a specific need, that they result in minimal discrimi- nation or preference, and that any harm to users is as little as reasonably possible. Where a traffic-manage- ment practice would lead to blocking the delivery of content, the ISP can't imple- ment it without prior CRTC approval. Tactics that result in blocking Internet traffic would get approval only in exceptional circumstances as they involve denying access to telecommunications services. In the case of time-sensitive audio or video traffic, such as Voice Over Internet Protocol systems, actions that introduce delays are likely to cause deg- radation to the service. The commission believes that when noticeable degradation in occurs, it amounts to controlling the content and influencing the meaning and purpose of telecommunications the ques- tion. Accordingly, it found that such cases would require prior approval. In addition, the commission took steps to ensure that ISPs don't disclose or use personal in- formation collected in order to manage Internet traffic for other purposes. Finally, it announced its intention to undertake a fu- ture review of the regulatory measures applied to Internet traffic-management practices by wireless data services. LT Alan Gahtan is a Toronto-based technology lawyer and Law Times columnist. His web site is www.

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