Law Times

Law Times • June 28, 2010 Doing the n the old James Cagney movies, there were always two prisoners to a cell. One was in the top bunk, the other in the bottom. That was called double-bunking, I meaning two bunks to a cell, not two prisoners to a bed, which is not always fun for the little guy. They usually got along fine until Cagney shouts, "You dirty rat" at his cellmate. It was great stuff for the movies, not in real life. Double-bunking was finally abol- ished in the Canadian penal system in 2001. The government, in its euphe- mistic style, declared that "single-oc- cupancy accommodation is the most desirable and correctionally appropri- ate method." But Public Safety Minister Vic Toews, who likes old movies, wants to take us back to the days of double- bunking. "Double-bunking is not a big deal," said Toews. That was three weeks ago. The next day, half of the 54 federal penitentiaries announced they are go- ing back to double-bunking, just like in Victorian times. Double-bunking can also be a great way to make new friends. Critics disagree, arguing it's more likely to promote violence among cell- mates. Still, it's a lot less expensive than building new penitentiaries, according to Toews. Toews has a big problem because, last October, Prime Minister Ste- phen Harper's government passed a new law that took away the rights of judges to hand out two-for-one credit for time already served in jail before sentencing. Two-for-one credit supposedly makes up for harsher conditions in re- mand and pre-sentence jails. Eliminating the extra credit is part of the Conservative government's crime agenda. It's part of an ideology based on the premise that putting more peo- ple in jail and keeping them locked up longer will make Canada a safer place. Increasing jail time by wiping out the double credit is one way to do it. They have great lines, including the one about "truth in sentencing." It's as if the judges haven't been tell- ing the truth when they give out two- for-one credits. But now they will have to tell the truth. The opposition parties caved in on the vote, lest the Conservatives call an election and win a majority. Now as the prisons start to fill up, Toews has to find spaces. More bunks, not more jails, are Toews' answers. It will cost only $2 billion over five years, he says. But he hasn't provided a published report detailing the numbers, so he can't say how he came up with his $2-billion figure. Maybe he has the same accountants who at one time put the cost of the Harper summits at only $179 million. Kevin Page, the parliamentary bud- get officer, says Toews is way off. It's going to cost at least $5 billion, he said last week. The provinces will be paying anoth- er $5 billion more themselves for the increase in prisoners in their jails. In Canada, convicts receiving sen- tences of less than two years serve them math on 2-for-1 The Hill By Richard Cleroux in provincial facilities. Those handed harsher punishments go to federal penitentiaries. Page and Toews don't agree. For his part, Page put out a 500-page report on the issue last week, the work of one- third of his staff for eight months. Page estimates the new law wiping out double credit will add, on average, about half of a year to every sentence. He has the average sentence in federal prisons increasing to 722 days, up from 563 days currently. Page says that works out to $1 bil- lion a year for five years. Page couldn't care less about the ide- ology behind increasing jail time. That's a political thing. He's a bean counter, the best we have. He's concerned that the public gets the right numbers. That's his job. Fudging figures to make government policies look more attrac- tive is not his way of doing things. The provinces are going to be hit harder than the federal government because "their head count" is twice as big, says Page. Provinces get all the remand inmates and those jailed for less than two years. That works out to 260,000 inmates a year, compared to 8,500 for the federal institutions. Toews put the issue delicately: "There will be some cost to the provinces." "Some cost" is right, about $5 billion over five years in extra costs, says Page. Toews replied: "Costs will all be done within the fiscal framework." That's a euphemism for saying the costs will be downloaded onto the provinces. Toews explained the federal costs will be "taken out of future budgets." That's true, but he doesn't point out that Harper already has a deficit this year. Budgets are not the Conservative government's strong suit. It took over four years ago with a $12-billion sur- plus and ran it into the ground. Once the hard times came, it racked up a $47-billion deficit. Toews says the important thing is not to build new penitentiaries but to slip more bunks into existing insti- tutions, especially those minimum- security facilities where the cells are nice and big. Toews says he doesn't have the de- tailed figures right now but when he does, he'll be glad to make them pub- lic. The last figure given before Toews' most recent $2-billion estimate was $90 million last fall. It seems to have gone up substantially. "Just think about all the money saved by society when those crimi- nals are incarcerated instead of being out on the street committing crimes," Toews said. Of course, that's presuming that any- body let out is going to reoffend. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers. com. COMMENT Feds table desperately needed copyright reform BY RYAN BLACK For Law Times to significantly amend the Copyright Act. Time will tell if this attempt is successful, but it has proven politically difficult to pass this type of legislation even though it's desperately needed. With the legislative stagnation in our A law, Canadians tech- nically infringe copy- right almost daily. The Copyright Act hasn't had a material update since 1997, despite the digital revolution since then. Even putting aside the pervasive issue of unauthorized Inter- net file-sharing, it's technically an infringe- ment under current rules to "rip" legally purchased music or movies to a computer hard drive or personal media player; record a television program to a VCR, DVD re- corder or personal video recorder; or cre- ate a backup copy of a movie or video. The current legislation contemplates cassette tapes and blank CDs in a world dominated by digital and online technologies. To put the matter quite simply, the Copy- right Act needs an overhaul to address the manner in which people offer and consume content in today's marketplace. So far, leg- islative efforts have failed. The last attempt, bill C-61, never did become legislation as widespread grassroots movements, opposi- tion from content creators and consumer groups alike, and other political realities re- sulted in putting it back on the shelf. Now, in bill C-32, we have another attempt to strike the appropriate balance between the rights of content creators and users. The main aspects of the new legislation address the online and digital era. For pri- vate, non-commercial purposes and under strict conditions, bill C-32 would permit consumers to make backups of copyrighted content; shift format and time by recording materials in their lawful possession in order to view them later; and even take advantage of a YouTube-friendly provision that allows non-commercial use of copyrighted material in user-generated content. Critics might argue bill C-32's digital-era rights are unnecessarily restrictive because, for example, the format-shifting provisions permit the temporary recording of a TV pro- gram in order to watch it later but wouldn't allow someone to record and keep favourite episodes even for a personal-use library. Still, it does get the digital-media provisions right. Importantly, the legislation doesn't try to fit the legislation to particular technologies, as bill C-61 did, which means it should re- main relevant. Gone are specific provisions about videocassettes in favour of more technologically neutral language. However, most new rights are subservi- ent to the provisions dealing with digital locks, also known as technological protec- tion measures or TPMs. Digital locks are technologies that control or restrict access to a work, such as copy-protection measures, regional locks, and access codes. Canada, as a World Intellectual Property Organization member, has a general obligation to enact legislation that upholds TPMs. However, the actual implementation of the TPM provisions is the domain of individual member states. The role of governments and the rights of industry and consumers with respect to TPMs are very controversial www.lawtimesnews.com fter failed attempts in 2006 and 2008, on June 2 the federal gov- ernment again tabled legislation topics that generate heated opinions from all sides of the discussion. The fight over how to implement TPMs Speaker's will be just as vigorous under bill C-32 as it was under bill C-61. The latest legislation prohibits the circumvention of TPMs above almost all other rights granted and with very few exceptions. This essentially means copy- right holders can ultimately decide what recipients can and can't do with TPM-pro- tected materials, leaving consumers with few legal options to uphold their personal use. For example, if a Corner content provider im- plements a TPM, as is the case with most recent commercially available CDs and DVDs, most of the digital-era user rights granted by bill C-32 no longer apply, including copying for pri- vate purposes, format-shifting, and time- shifting. A copy-protected DVD, for ex- ample, couldn't be archived or transcoded for viewing on a computer or digital media player if those activities require the circum- vention of a TPM. The implementation of a digital lock would make doing so an infringing activity and therefore force the user to acquire content that's licensed for those uses, likely for additional fees. The various positions taken with re- spect to TPMs demonstrate a wide divide between content creators and user groups. Generally, content creators wish to control the manner in which people use and receive their works in order to respect their own licensing arrangements and protect their pricing models. They argue that TPMs fos- ter innovation and develop digital market- places. Some content creators view TPMs as a key to their ongoing battle against widespread copyright infringement. Those against bill C-32's rigid provisions suggest the legislation focuses too much on the issue of breaking locks instead of the ne- farious things some people who circumvent TPMs do. They claim that both the arts and technological innovation have flourished in Canada without TPMs in place and that giving consumers personal and non-com- mercial rights to use copyrighted materials will foster them even more. Bill C-32 isn't only about TPMs, though. Other proposed revisions are also key in the copyright debate. They include: • Expanding fair-dealing exceptions to copyright infringement by adding "edu- cation, parody, and satire" to the current list that includes research, private study, criticism, review or news reporting. • Enshrining the "notice-and-notice" In- ternet service provider system. Essentially, an ISP or online service can avoid liability for users' infringing activities by passing along notices of copyright infringement to consumers and monitoring their ac- tivities to preserve evidence. • Reducing statutory, non-commercial in- fringement penalties. • Giving libraries and educational insti- tutions online and digital distribution rights. There will no doubt be substantive debate about bill C-32 in the coming months. The legislation is hardly final, but it will be interesting to see if the pro- posed amendments can reach the finish line and become law. LT Ryan J. Black is an associate in the technol- ogy and intellectual property group at Lang Michener LLP. He can be reached at rblack@ lmls.com. PAGE 7

• Cover
• 100 Years
• Doing The Math
• Focus On Municipal & Planning Law