youth Archives - LawNow Magazine

BenchPress 39-5: Private Use Doesn’t Apply

June 23, 2015 By Teresa Mitchell

Two Edmonton men were acquitted of offences of making and possessing child pornography because the trial judge accepted that the material, involving two runaway teenage girls, was made for the men’s private use. The Supreme Court of Canada ordered new trials for the men, ruling that s. 153 of the Criminal Code, which makes sexual exploitation of young people a crime, should have been examined. Judges must look at whether the sexual activity occurred in the context of an exploitative relationship. If so, the sexual activity is not lawful and the private use exception does not apply. It found that the trial judge looked at the voluntariness of the activity instead of the relationship between the parties. In addition, the trial judge should have considered a whole range of factors such as age, the difference in age between the girls and the accused, the impact of the girls’ addiction, their need for shelter, and their past and ongoing experiences with homelessness and prostitution. The Court concluded: “By failing to consider whether the underlying relationship between the girls and the accused was exploitative, the trial judge erred in law. This error had a material bearing on the accused’s acquittals and requires a new trial.”

R. v. Barabash, 2015 SCC 29 (CanLII)

New Employment Law Resources for Alberta Youth

May 11, 2015 By Ryan Day

Many new Canadians are unfamiliar with the legislation that protects them in the workplace. Research indicates that immigrants with limited English speaking abilities often turn to their children to act as intermediaries to pass on information, including legal information. By developing resources for youth, the youth will learn about human rights law and then will also be able to pass this information along to their family members.

CPLEA recently completed a project to create legal information resources specifically targeted to the multi‐cultural community, and, in particular youth. These resources make use of real‐life scenarios to demonstrate Alberta legislation that protects workers.

With input from youth CPLEA developed resources to help people

Identify situations of discrimination as they apply in the workplace
Understand what options are available to them when they face discrimination; and
Become more familiar with laws that help to protect their rights and responsibilities at work

This collection of resources is available on the CPLEA website: Your Rights at Work

Viewpoint 39-4: Ten Years – A Look Back At Bullying

March 8, 2015 By Rob Frenette, O.N.B.

What were you doing in 2005? I can easily recall what I was trying to accomplish. I was a grade 9 student at Bathurst High School at the time, trying to get the courage to do something that no one ever thought I would do – come forward as a sixteen-year-old teenager who endured years of bullying. Come forward to try to accomplish one task, prevent bullying by the year 2008; the year I graduated from High School. In ten years, bullying has changed dramatically. The forms of bullying have changed, the way bullying is reported has changed, the way schools handle bullying has changed too… The year that, at the time, I was hoping would be enough to prevent one more kid from being silenced about the pain, the thoughts, the abuse they were enduring. The same thoughts, abuse, and the pain I was enduring.

I was kicked, burnt, spit on, called names because of the way I walked – a name that that unfortunately I will remember for the rest of my life.

Prior to going public, I wrote an anonymous letter to the editor of my local newspaper The Northern Light. That letter turned into a column written by the editor of the paper at the time. His column was entitled “Even in so-called enlightened times, bullying is still a problem”. That headline spoke volumes to me, and it still does today, but for a different reason.

I can clearly remember the nightmares, the night sweats, the headaches, not being able to do my homework because I had to pay more attention to: was I going to get thrown down the stairs? Tripped? Shoved? Kicked? How could I concentrate on learning while trying to prevent another sleepless night? I remember two students who I went to school with, two girls who were sisters who publicly never got identified, and how they burned the back of my neck on the way to school, and how unfortunately, no punishment could be handed out because a) no one would say a word on what they witnessed in fear that they would be the next target and b) the location the bullying happened – on a school bus. The bus driver didn’t see the incident happen and the bus did not have a camera.

In ten years, bullying has changed dramatically. The forms of bullying have changed, the way bullying is reported has changed, the way schools handle bullying has changed too and most importantly youth hopefully know they now have a voice, and can speak out and get bullying support when they need it most. To any child or teen who is afraid of coming forward to tell someone, I have a very important message to you, your parents and family: tell someone. Over a ten-year span, I’ve been able to help grow a national anti-bullying charity, share my story about how a student with cerebral palsy was bullied, and most importantly, I can now help other youth and their families get the support they need.

Policies have come and gone over the years, some have helped prevent another child enduring what I did while others are newer and provide something that was not there when I was in school – more support for teachers, more information on the new forms of bullying.

I’ve been recognized for my tireless work, ranging from my first award being the Chaleur Youth Outstanding Awards, a part of an award ceremony that the Bathurst Youth Centre offers, to Community Leader Awards, to most recently the Order of New Brunswick in 2011 at the age of 21. The youngest New Brunswicker to receive this honor since its creation.

Over the next years, I hope to see more programs, support networks, laws, and policies to help handle this problem. To the educators who did all they could with the resources they had at the time, thank you. To the media, especially The Northern Light and MAX 104.9 FM (formally CKBC), thank you for helping tell my story. To the national media, thank you for helping get my message out, coast to coast to coast.

To any child or teen who is afraid of coming forward to tell someone, I have a very important message to you, your parents and family: tell someone. Tell a teacher, a guidance counsellor, a school official. Tell someone. You do not need to live in silence. Any child or teenager or their family can reach out to BullyingCanada 24/7 for support, information and resources by telephone at: 877-352-4497, or by email: [email protected]

Transgender youth: Everyday items, everyday rights

March 8, 2015 By Melissa Luhtanen J.D.

The public bathroom can be a major source of anxiety for transgender youth. Using a public restroom may result in their status being discovered. If they identify as transgender and have not yet revealed their identity, they may feel like an imposter. Worse yet, trans teens may be subject to ridicule, abuse or assault, physical or sexual, in public lavatories. Issues concerning use of the restroom may be the first notice that a school receives that a child is transgender.

– Which Way to the Restroom? Respecting the rights of transgender youth in the school system

The task of protecting transgender youth in schools has begun. A topic that ten years ago was rarely discussed is now at the forefront of policy-making in many school boards across the country. The job of protecting transgender youth has not been easy and is still in the beginning stages, but it is a source of endless debate and discussion, which means it is on the radar of those who care for youth.

In schools, the discussion has centered around harassment, gendered washrooms and change rooms, segregated sports, dress codes, names and pronouns. Looking at this list, it is easy to see that much of it is a list of details; everyday items that make up a person’s day: getting dressed, going to the bathroom, changing for gym, having your friends call you by name, and playing on a sports team. Part of the reason that transgender youth are fighting task by task is because a youth, for the most part, cannot have surgery to live in their identified gender. Some laws and policies depend on the occurrence of gender reassignment surgery and say that a person must have had some surgery that reflects the identified-gender in order to obtain particular rights. For a youth, this option is not possible and so they fight the battle of details. Their rights cannot stem from the fact that they have proof of surgery or proof of gender on an identification document. This is not to downplay the complexities of gaining rights for transgender adults, but instead to highlight the struggles for youth.

One of the legal debates has been: when does the law accept transgender persons as being the gender that they identify? Some laws and policies depend on the occurrence of gender reassignment surgery and say that a person must have had some surgery that reflects the identified-gender in order to obtain particular rights. More recently some rights have been permitted to transgender people who self-identify their gender. Policies protecting transgender youth cannot depend on the status of surgery, and so have often allowed for self-identification to obtain rights, such as participating on a particular gendered sports team.

Schools are faced with the issue of addressing how to accommodate a transgender youth who wants to use the bathroom or change room that matches their identified gender. Different school boards have used different standards.

The Edmonton Public School Board Policy on Sexual Orientation and Gender Identity HFA.AR asks school staff to be sensitive to the needs and privacy of transgender youth when determining restroom accessibility. It calls for “individual solutions” and mentions finding a solution that does not disrupt the school. …even school boards without a policy will still have human rights obligations toward transgender students.

The Vancouver School Board Policy Code ACB-R-1 assesses the accommodation of a transgender student using washrooms and change rooms “…with the goals of maximizing the student’s social integration, ensuring the student’s safety and comfort, minimizing stigmatization and providing equal opportunity to participate in physical education classes and sports.” It says that transgender students shall be able to use the washroom and change room for their identified gender.

Nova Scotia’s Guidelines for Supporting Transgender and Gender-nonconforming Students encourages schools to find a safe washroom facility that corresponds with a student’s gender identity.

Toronto District School Board’s Guidelines for the Accommodation of Transgender and Gender Non-Conforming Students and Staff goes a step further by clearly stating: “Requiring students to ‘prove’ their gender (by requiring a doctor’s letter, identity documents, etc.) is not acceptable. A student’s self-identification is the sole measure of the student’s gender.”

Some of these policies reference the transgender student’s self-identification as the standard upon which to allow the student to use a washroom that corresponds with their gender. Part of the reason that transgender youth are fighting task by task is because a youth, for the most part, cannot have surgery to live in their identified gender. For instance, Toronto’s policy is the most clear in using the student’s self-identification as the sole gauge of gender. Other policies, such as Edmonton’s, discusses the student’s identity as transgender in the opening paragraph, but in the clause on restrooms looks more toward “individual solutions”, respect and safety. This language of “individual solutions” is in line with human rights law on accommodating a student (or anyone for that matter). When looking for an accommodation, the school is legally bound to look for a solution on a case-by-case basis and to not rely on a one-size-fits-all rule.

School boards such as those in Edmonton, Vancouver and Nova Scotia, have included in their policies that schools must reduce or eliminate gender-segregated activities. Many policies specify that staff should aim toward accommodating transgender youth according to their gender identity in these activities.

The school board policies in Vancouver, Edmonton, Toronto and Nova Scotia all stress safety and openness to the student participating in the gym class or sports team that corresponds to their gender identity. Each policy notes that excluding transgender youth from physical education is not an option. The debate on the issue of sports runs deeper than these policies are able to address in over-arching statements. In the adult world, the desire of a transgender person to play on a single-gender team that corresponds with their gender identity can create controversy. Some of this controversy has been abated. In 2004, the International Olympic Committee adopted a policy whereby transgender people may compete in the Olympic Games if they: have had gender reassignment surgery, are legally recognized and have had two years of hormone therapy. Many sports oriented organizations have followed suit.

The Transgender Law & Policy Institute, an American based organization, published Guidelines for Creating Policies for Transgender Children in Recreational Sports in September 2009. The school board policies in Vancouver, Edmonton, Toronto and Nova Scotia all stress safety and openness to the student participating in the gym class or sports team that corresponds to their gender identity. These Guidelines state that the debates that may cause problems in the adult sporting world are focused on the competitive advantage that male hormones may provide in sports. However, “[i]n preadolescent children… hormonal levels do not differ significantly between the sexes. Therefore, no hormonally-based advantage or disadvantage between girls and boys exist.”

Not every school board in every province and territory has a policy on transgender youth. Some places are creating policies around sports. Some school boards have yet to create a general policy for transgender youth. Every school board would be bound by human rights laws, within their area, that protect students based on gender identity, gender or sex. And therefore, even school boards without a policy will still have human rights obligations toward transgender students. What many of those rights are has yet to be heard by tribunals and courts. Therefore, students may find it difficult to decipher what rights they are entitled to without a policy, and to obtain those rights in a timely manner.

The policies that I reviewed acknowledged that each situation must be addressed on a case-by-case basis. This is the very nature of accommodation – looking at each case individually and finding solutions that would reasonably accommodate a transgender youth. Legal cases providing direction on these issues are few and far between and there are no cases addressing bathrooms or change rooms that have made it to a higher court (for instance, Ferris v Office and Technical Employees Union, Local 15 [1999] BCHRTD No 55 is a tribunal decision regarding the use of the woman’s bathroom by a transgender woman in her workplace). Any case law that does address transgender complainants usually involves adults. Therefore, schools are left to interpret the law as it relates to human rights and apply it to the situation of gender identity.

Mitigating Children’s Involvement in Maritime Piracy

March 8, 2015 By Carl Conradi

Observations by the Roméo Dallaire Child Soldiers Initiative

Introduction

Recently, the Canadian Forces Maritime Warfare Centre (CFMWC) had the honour of hosting the prestigious Multilateral XII Wargame, an annual event that convenes representatives from eight of the western hemisphere’s most potent navies. In the past, game scenarios have sought to replicate the catastrophic conditions that have accompanied real-world political or environmental events, such as the 2010 earthquake in Haiti. However, among this year’s various problematics and injections, participants will be asked to simulate and discuss the burgeoning involvement of children in maritime piracy.

Until quite recently, the phenomenon of child maritime piracy elicited scant attention. Precious few academic articles have been written on the subject – excepting three pieces by Danielle Fritz [1], Mark Drumbl [2] , and the Roméo Dallaire Child Soldiers Initiative [3] – and little has been done to create practical counter-piracy doctrine that affords consideration to threats posed by children. Indeed, children are prized by unscrupulous commanders (and presumably, by piratical gangs) for being agile, submissive, trustworthy, daring and largely impervious to legal prosecution. Yet according to the Seychellois Department of Legal Affairs, some ten to 20 percent of all pirates captured within the Indian Ocean have been below the age of 18 [4]. These youths present naval security actors with unique tactical and operational challenges that merit a distinct tactical and operational response.

Since 2012, the Dalhousie University-based Dallaire Initiative has been partnering with the Dalhousie Marine Piracy Project (DMPP) to explore the security implications of children’s involvement in maritime piracy; and while it is not yet capable of offering doctrinal recommendations, the Dallaire Initiative has managed to identify a number of key issues that demand further consideration by affected navies.

Children as a Security Concern

The Dallaire Initiative hypothesises that child pirates share a great deal in common with child soldiers, insofar as they are recruited to serve specific tactical and operational functions – functions that adults are ill-disposed to serve themselves. Indeed, children are prized by unscrupulous commanders (and presumably, by piratical gangs) for being agile, submissive, trustworthy, daring and largely impervious to legal prosecution.

Moreover, as Dr. Shelly Whitman noted:

…the socio-economic factors (e.g. poverty, armed violence, lack of educational or employment opportunities, orphanhood, displacement and exposure to disease) that make children vulnerable for use by armed groups exists in each of the major areas where piracy is currently reported. In addition, in many of the regions where piracy exists, children are being used by terrorist groups, criminal gangs and within state and non-state armed groups (e.g. in Somalia, Nigeria and Haiti). Therefore, the use of children and youth by pirate groups could be viewed as a natural extension of these armed groups [3].

When they are deployed against a professional armed force, children also present adult security actors with a serious ethical dilemma – one that may result in fatal hesitation and/or subsequent post-traumatic stress. Until quite recently, the phenomenon of child maritime piracy elicited scant attention. For instance, if a security actor were reluctant to return fire against a child – and said reluctance resulted in the death of a colleague – he or she might be blamed for the casualty. On the other hand, if he or she were to return fire – thereby eliminating a child pirate or child soldier – they may return to base, only to be stigmatized as a child killer.

For these various reasons, if Western armies and navies are not afforded adequate doctrinal guidance and clear preparatory training on the subject of child soldiers and/or child criminals, they may well become increasingly loathe to participate in operations that involve children, thereby effectively ceding the strategic advantage to persons who use boys and girls for criminal or political purposes. Obviously, this would be unacceptable.

Challenges Inherent to Engaging Children at Sea

Throughout 2013, the Dallaire Initiative began the exercise of crafting child pirate-specific rules of engagement (ROE) for naval security sector actors. This work was accomplished with significant subject matter input from the CFMWC and was based upon the suite of ROE options put forth in the seminal Sanremo Handbook on Rules of Engagement. At this time, the Dallaire Initiative also became a supporting entity of the maritime private security industry’s 100 Series Rules on the Use of Force (RUF), a “…model set and example of best practice RUF [that] complement current industry RUF guidance… as well as [that support] the requirements of ISO PAS 28007 as a Publicly Available Specification and international standard.”

This period of consultation and design culminated in a security sector roundtable, held at CFB Halifax (Stadacona) from 21-23 October 2013. The event drew together some 20 naval personnel, private security contractors, civilian merchants, international lawyers and child protection experts, who were collectively tasked with assessing the Dallaire Initiative’s proposed ROE via a series of scenario exercises.

Ultimately, the roundtable precipitated a radical shift in the Dallaire Initiative’s understanding of naval interactions with children at sea. When they are deployed against a professional armed force, children also present adult security actors with a serious ethical dilemma – one that may result in fatal hesitation and/or subsequent post-traumatic stress. In particular, as participants worked through the Dallaire Initiative’s ROE, it became clear that it is both impractical and unadvisable to distinguish between adult pirates and child pirates in the heat of armed combat. While land-based forces have the ability to assess threat according to the actions of individuals, sea-based forces are necessarily obliged to assess threat according to the behaviour of entire skiffs. Whether children are present on any given skiff is nearly impossible to ascertain in advance – and in the absence of such critical intelligence, security sector actors cannot be expected to employ a competing set of child-specific ROE.

Furthermore, it was determined that although UNCLOS and a supporting collection of UN Security Council resolutions stipulate a clear legal responsibility to effect the immediate arrest of any pirate encountered at sea, state navies frequently (and according to some, necessarily) shunt this responsibility when pursuing an ambiguous or conflicting operational mandate. For instance, roundtable participants expressed contrasting views as to whether apprehension and detention of alleged child pirates should be considered an integral component of counter-piracy operations. Some believe that once a skiff has been neutralized, the counter-piracy mission has been accomplished, whether apprehension has taken place or not.

This lack of operational clarity – coupled with the fact that most warships are not built to effect the separation and accommodation of large numbers of adult and child pirates – has meant that many navies, including Canada’s, pursue an unofficial policy of “catching and releasing” suspected juveniles. Yet this is precisely the kind of strategy that the Dallaire Initiative is striving to abolish; for if adult pirate commanders were to realize that navies routinely release children who are accused of piracy, they will opt to use children more often. In this way, “catch and release” provides a direct incentive for children’s recruitment into piratical gangs.

Evidence of Child Maritime Piracy in the Indian Ocean

Near the end of the roundtable event, participants concluded that it would be more prudent for the Dallaire Initiative to shift its focus from the propagation of child-specific ROE to the creation of after-action standard operating procedure (SOP), particularly for the ethical apprehension, detention, interview and transfer of children at sea. Indeed, it was universally affirmed that no such SOP currently exist, neither within the Canadian navy nor any international naval coalitions.

In pursuit of this new objective, the Dallaire Initiative decided that it first had to develop a better understanding of the status quo – that is to say, what navies are currently doing when faced with the challenge of apprehending child pirates. This preliminary research prompted the Dallaire Initiative’s attendance at the November 2013 Counter-Piracy Week in Djibouti, as well as a four-week field mission to Kenya and the Seychelles, from February through March 2014. Both “recce” missions yielded a significant amount of pertinent information.

Perhaps most importantly, these two research forays allowed the Dallaire Initiative to conclusively establish children’s participation in maritime piracy as an incontrovertible fact. …adult pirates may choose to employ children because they are morally “pure”, thereby ensuring that their prayers for calm seas and successful operations pass directly to Allah. Indeed, as was mentioned previously, it was at this time that the Dallaire Initiative learned that some ten to 20 percent of all pirates captured in the Indian Ocean are below the age of 18.

As recounted by the Seychellois Department of Legal Affairs, the average size of a Somali pirate action group (PAG) is nine persons, though they may be comprised of as few as four persons and as many as 15. Typically, one crew member aged 32+ will serve as captain, while members of the boarding party are usually between the ages of 18 and 30. However, in almost all cases, one youth below the age of 18 will be employed to serve in a support capacity (e.g. as a cook or a cleaner). On occasion – as in the notorious hijackings of the SV Quest, the FV Vega 5, the MV Semlow and the MV Maersk Alabama – this juvenile auxiliary will be made to participate in boarding party activities. Said organizational structure was further corroborated by a group of some 20 Somali pirates who are currently incarcerated at the Seychelles’ Montagne Posée prison.

According to the UN Office on Drugs and Crime (UNODC) in Nairobi, these youths are incorporated into piratical operations precisely because they are “nimble” and “expendable”. Moreover, according to the Mombasa-based Seafarers’ Assistance Programme, adult pirates may choose to employ children because they are morally “pure”, thereby ensuring that their prayers for calm seas and successful operations pass directly to Allah.

Worryingly, the Dallaire Initiative found anecdotal evidence to suggest that juvenile pirates may also be thrown overboard after a successful take, so that their share of the spoils may be redistributed amongst their adult associates.

The Importance of SOP Specific to Child Pirates

While no one East African organization interviewed by the Dallaire Initiative was able to officially confirm that navies in the region are deliberately pursuing a strategy of catching and releasing juvenile pirates, many intimated that they’d heard stories to this effect. In the absence of clear doctrinal prescriptions and/or sufficient space to detain large numbers (and different demographics) of pirates, this is not entirely incomprehensible. However, as was mentioned previously, such a strategy may have the unintended consequence of incentivising children’s participation in maritime piracy.

If one were to therefore grant that navies have a strategic interest in apprehending and detaining pirates – irrespective of their age – one must then consider how such a detention would unfold. First: where juveniles are concerned, navies would face the complicated task of physically separating child pirates from their adult associates. This protocol – which has already been established as an international child protection norm on land – is necessary because of the dire physical and psychological risks that adult detainees may pose to children. Indeed, even when a person is only suspected of being a child, they should be treated as such and separated.

Of course, such partition is fraught with challenges. For example, in early 2014, when the Seychelles Police attempted to separate a 14-year-old Somali child pirate from his adult associates, the boy tried to commit suicide twice. According to the Seychelles Police, the boy was terrified that his associates would think that he’d “snitched”.

Moreover, when children are being detained by guards who do not share their language, religion or culture (as is the case amongst Somali children detained in the Seychelles), said differences may aggravate their sense of isolation. …if adult pirate commanders were to realize that navies routinely release children who are accused of piracy, they will opt to use children more often. This is why the Seychelles Prison Service has opted to incarcerate Somali children alongside Somali adults (a practice that it replicates amongst indigenous Seychellois juvenile offenders).

Nevertheless, even within these seemingly compelling circumstances, child pirates should be separated from adults. While the impetus to mitigate a child’s sense of isolation or suicidal thoughts is entirely commendable, the solution lies in robust monitoring and the skilled provision of child-specific services – not in keeping children and adults together.

Second: once a suspected child pirate has been separated from their adult associates, navies must undertake an individual age assessment, so as to confirm as accurately as possible that said juvenile is indeed below the age of 18. Navies already play a tremendously important role in this respect. In the Seychelles, when an alleged pirate is being prosecuted, the age provided by the resident physician aboard the apprehending warship will determine whether he is tried as a minor or as an adult.

At present, the only age assessment technique employed by Western navies (and by most East African prison services) is medical examination. However, whilst affording some veneer of precision, medical examinations – including, for example, dental and bone scans – are often highly inaccurate. This is especially true in cases involving persons who are malnourished or diseased and whose bodies are therefore suffering from accelerated ageing. Such is often the case amongst apprehended Somali pirates, many of whom may appear to be older than they actually are.

In light of the above, UNICEF has actually recommended that medical examination be the last of several techniques employed during an age assessment. The assessor is first and foremost encouraged to conduct a psychosocial interview with the suspected child. By asking questions that probe memories and associated inconsistencies, skilled child protection officers are able to estimate a person’s age within a narrow window of months or years. Medical examinations should then be used only to corroborate what has been discovered during the interview.

Conclusion

The Dallaire Initiative has made great strides in its work on child maritime piracy, having both proven its existence as a widespread phenomenon (particularly in the Indian Ocean, though possibly in the Gulf of Guinea, the Straits of Malacca and other areas where youth and criminality have frequently intersected) and identified a number of related problems that demand further consideration by concerned navies.

Its preliminary recommendations on the subject of child maritime piracy are as follows:

1. In recognizing that children afford piratical gangs certain idiosyncratic tactical and operational advantages, naval doctrine must outline a child-specific tactical and operational response. It appears that the United Kingdom’s Royal Navy has already made some headway in this respect, having drafted specific guidance for engaging (though not necessarily detaining) children at sea. If a country’s navy does not currently offer such clear doctrinal instruction, the Royal Navy may serve as one possible model.

2. More specifically, navies must include apprehension and detention as integral, non-optional components of counter-piracy operations – especially when intelligence indicates that children may be present. In the absence of such clarity, some may believe that once a purported pirate skiff has been neutralized, the counter-piracy mission has been accomplished. This would effectively mean that possible juvenile crew are being surrendered to criminal elements – a move prohibited by international children’s rights law.

3. Warships deployed to participate in counter-piracy operations should be equipped with multiple detention facilities, so as to allow for the possible separation of child and adult detainees. During the Dallaire Initiative’s visit to Kenya and the Seychelles, it became clear that certain navies – such as the French – have already begun to do so (see the Siroco, the Floréal and the Nivôse). If a given navy were not in possession of such a warship, alternative procedures should be devised to preserve the spirit of what separation is intended to accomplish.

4. When a suspected child pirate is being subjected to age assessment aboard a naval warship, the first technique used should be the psychosocial interview. Recognizing that most warships do not already have a designated child protection officer who is experienced in such exercises, navies should collaborate with international child protection organizations to have a particular “point person” trained in general child protection. This person should also receive some context-specific training in the operating region’s culture and history.

This article was originally published in the Fall 2014 (Vol 10, No. 2) issue of Canadian Naval Review, and is reprinted with permission.

Notes:

1. Danielle Fritz, (2012) “Child Pirates from Somalia: A Call for the International Community to Support the Further Development of Juvenile Justice Systems in Puntland and Somaliland,” Case Western Reserve Journal of International Law, Vol. 44.

2. Mark Drumbl, (2013) “Child Pirates: Rehabilitation, Reintegration and Accountability,” Washington & Lee Legal Studies Paper No. 2013-16.

3. Dr. Shelly Whitman, (2012) “Children and Youth in Marine Piracy: Causes, Consequences and the Way Forward”

4. Interview with Mr. Charles Brown (Senior State Counsel, Republic of Seychelles), March 2014.

One Edmonton Youth in Conflict with the Law: A Case Study

March 8, 2015 By Stephanie Jansen

We have all been there at one point in time: young, insecure, and impressionable. You would do anything to fit in: wear the right clothes; listen to the proper music; dislike the right people and share the same opinions as all the cool kids. But what if the cool kids were the RCMP acting as undercover agents to obtain a confession from a teenager suspected of killing two people?

This is precisely what happened in the spring of 2012 during a “Mr. Big” operation where undercover officers coerced a murder confession from a youth under the guise of recruiting him for organized crime activities. Regardless of the fact that the confession contained many factual errors and outright absurdities, the RCMP arrested the teen for the two murders. Barry Boenke and Susan Trudel were found bludgeoned and shot on their property in Strathcona County in 2009. Two youths were arrested after they were discovered driving the stolen truck belonging to Mr. Boenke. The charges were stayed in 2011 after a judge excluded an illegally obtained confession from one of the young men.

Despite this exclusion, the RCMP carried on with its attempts to lure the teen into their imaginary gang. The strategy included supplying the underage foster child with beer, concert and hockey tickets, a PlayStation and a trip to the mountains.

Through the interception of letters, and the monitoring of the teen’s phone calls, the RCMP spent over 200,000 dollars on the undercover operation. These circumstances have raised some moral and ethical questions around whether these types of operations ought to be used when the target suspect is a youth. Eventually, they received what they set out to accomplish: the teen confessed to killing Boenke and Trudel. Regardless of the fact that the confession contained many factual errors and outright absurdities, the RCMP arrested the teen for the two murders.

There are some obvious issues with this approach, the most blatant being that the conduct by the RCMP could be interpreted as abusive. The teen was a foster child with a poverty stricken upbringing, and a history of sexual abuse. Some might argue that it was no wonder the boy was so keen to have his “new friends” accept him into their gang. A lifetime of neglect and exclusion had resulted in a very attention-deprived young man, willing to sacrifice practically anything to be recognized.

These circumstances have raised some moral and ethical questions around whether these types of operations ought to be used when the target suspect is a youth. The teen’s defence lawyer argued that the case was an example of police entrapment. This was argued after the teen was found guilty of counseling to commit murder in March 2013. But by May of the same year, Justice Brian Burrows threw out the confessions the RCMP gathered in their undercover operation.

Ultimately, Justice Burrows determined that the RCMP violated the teen’s Charter rights against self-incrimination. Justice Burrows wrote that using such statements gives rise to the real and serious possibility of abusive conduct by the state, and that the state had a duty to protect the teen, which created a conflict with the enforcement element of the criminal law.(R v. NRR, 2013 ABQB 288 (CanLII)) Worse, the judge also found that the teen’s confession contained exaggerated, inaccurate descriptions of what happened and was not the least bit credible. The judge acquitted the teen, without even hearing from the defence, because there was no evidence linking the teen to the murders.

Incredibly, the RCMP did not investigate anyone else and has declared that it will not pursue other suspects in the future. This, in spite of evidence presented at trial that investigators found a bloody handprint and three sets of boot prints belonging to three unidentified people. The teen’s fingerprints and DNA were not found at the murder scene.

The idea that someone underage could be coerced into a false confession is troubling, to say the least. Justice Burrows wrote:”permitting the use of the statements made to Mr. Big would give rise to the real and serious possibility of abusive conduct by the state.” He also wrote that the state had a duty to protect the teen. “As his guardian, the state had a duty to protect which was incompatible with its desire as the enforcer of criminal law to deceive him.” It was deceit, plain and simple.

The focus of these types of operations must be on ensuring that statements from susceptible people are reliable. In this case, the RCMP appeared to care more about a conviction than warranting accurate information. The RCMP should have been aware from the beginning that their main suspect was unreliable from the very fact that the teen’s stories changed each time they were told, and had been proven inaccurate by forensic evidence.

Worst of all for the teen, as the “Mr. Big” operation was unfolding, he was being sexually exploited by someone who had worked at a detention center where the teen was held, and she is now facing criminal charges.

While the excluded confession and acquittal have devastated the families of Boenke and Trudel, the decision of the Court was the correct one. The need to hold someone responsible for these murders cannot overshadow the importance of compiling evidence properly, and not compromising the Charter rights of anyone in the process, particularly our most vulnerable.

Ultimately, the teen was found guilty of possession of Boenke’s stolen truck and break and enter. He was sentenced to twelve months probation.

International Charter on Prevention of FASD

March 8, 2015 By Egon Jonsson, Amy Salmon and Kenneth R. Warren

The First International Conference on Prevention of FASD (Fetal Alcohol Spectrum Disorder) was held in Edmonton, Canada from September 23 to 25, 2013. The following Charter was endorsed and adopted by the delegates at the meeting, who included about 700 people from 35 countries around the world; senior government officials, scholars and policy makers, parents and families, and Indigenous Peoples. It is presented to all concerned in the international community, as a call for urgent actions to prevent FASD.

FASD

Fetal alcohol spectrum disorder is a serious health and social problem, as well as an educational and legal issue that affects individuals, families and societies worldwide. It is a condition caused by alcohol use during pregnancy. It is a common misconception that FASD is the same as FAS (Fetal Alcohol Syndrome). FAS is only one of several disorders caused by alcohol use in pregnancy and it represents only a minority of the cases of FASD, which includes all conditions caused by alcohol use during pregnancy. There is no known amount of alcohol that is safe for the growing fetus, which may develop extensive brain damage as well as physical abnormalities. While early intervention and supportive care can improve outcomes for those who live with this disability, FASD can have devastating implications for the individual, the family, and other care givers.

The cause and consequences of FASD have been known for forty years, yet it continues to afflict millions of people around the globe. It is estimated that at least one in every one hundred babies born will have to live with this permanent disability. In countries where drinking among women of childbearing age is more common, the prevalence of FASD may be significantly higher. It is a condition of overwhelming concern in some populations.

FASD is preventable. However, one major obstacle to effective prevention is lack of awareness of the existence of the disorder, and the risks associated with drinking alcohol during pregnancy. Opinion-based advice about how much of alcohol is needed to potentially harm the fetus, as well as conflicting messages from different studies, cause confusion and contribute to the failure to see the risks for FASD. Currently nobody can tell if there is any amount of alcohol that is safe during pregnancy.

Findings from basic research have clearly documented that even low to moderate consumption of alcohol can cross the placenta and interfere with the normal development of the embryo and fetus. Heavy or frequent consumption of alcohol in pregnancy increases the risk of delivering a baby with FASD. It has been well established that people living with FASD frequently face additional challenges as a consequence of their disability, such as breakdown in family relations, disruption of schooling, unemployment, homelessness, alcohol and drug abuse, and coming into conflict with the law.

Adolescents and adults with FASD are at high risk to come in contact with the criminal justice system. Many may end up in jails, become repeat offenders, and are often victimized themselves. The legal implications of FASD are many and complicated. While early diagnosis, supportive living environments and tailored intervention can help reduce the risks of the secondary implications of the disorder, FASD is typically a life-long condition.

The financial burden of FASD on families, communities, and governments is substantial by any standard. Addressing the complex needs of individuals with FASD most often requires additional support in the health, social, educational and legal systems as well as of correctional services. The associated financial costs are unsustainable for many countries. However, the costs of inaction are even greater.

The cause of FASD is known and preventable.

Broad-based policy initiatives and actions at different levels of every society are urgently needed to encourage abstinence from alcohol during pregnancy.

Root causes of FASD

Maternal alcohol consumption during pregnancy is the direct cause of FASD. The underlying causes for drinking during pregnancy are numerous, including lack of information about the risks of drinking while pregnant The frequent perception that FASD is simply due to the individual woman’s choices is a major barrier to effective prevention efforts in the field. Men also have a responsibility for FASD., drinking prior to pregnancy recognition, dependence on alcohol, untreated and unrecognized mental health problems, and social pressures to drink. The complex social and biological determinants of health also affect drinking and its consequences, including genetics, poverty, malnutrition, and lack of social support networks and personal autonomy. The risks for alcohol exposed pregnancies are also associated with adverse life events, gender-based violence, trauma, stress, and social isolation.

Whatever the influences are on women’s drinking and the risks to the fetus; effective prevention strategies need to be identified and adapted to the social, economic, and cultural context of each community.

Who is responsible for FASD?

The frequent perception that FASD is simply due to the individual woman’s choices is a major barrier to effective prevention efforts in the field. Men also have a responsibility for FASD.

Partners who show no or little support during pregnancy and who also may abuse alcohol, become violent, and demand that their pregnant partner drink with them, share responsibility for the outcome. FASD is preventable. However, one major obstacle to effective prevention is lack of awareness of the existence of the disorder, and the risks associated with drinking alcohol during pregnancy. Social norms that promote drinking among pregnant women are also responsible for increasing the risk of FASD. Healthcare and social services providers have a responsibility to inform about the risks of drinking during pregnancy, and to provide meaningful assistance and support to pregnant women to abstain from alcohol use, and also to secure adequate nutrition in their reproductive years. Failures in providing information and support make these providers responsible. Alcoholic beverage marketing that targets women of childbearing age, without cautioning about the use of their products during pregnancy, is also responsible. Society at large is responsible for failing to help pregnant women to cope with fear, anxiety, violence, malnutrition and poor health through means other than alcohol use. The risks associated with the underlying determinants of health are a societal challenge.

When a million babies are born every year with permanent brain injury from a known and preventable cause, the response ought to be immediate, determined, sustainable and effective.

This Charter calls on governments and all other stakeholders to engage in FASD prevention by:

Taking action to raise awareness about FASD and the risks of alcohol use during pregnancy.

Promote a consistent message about FASD prevention by the use of evidence
Public health information must be clear and consistent: abstaining from alcohol during pregnancy remains the safest path to preventing FASD. In many countries there is still a lack of access to evidence-based information about FASD and potential harms from alcohol use in pregnancy. Such information must be widely available, responsive to local contexts, and designed to facilitate access to supportive services for pregnant women.

Make FASD explicit in social and alcohol policies
Policies related to the social determinants of health should explicitly include the issue of FASD, its secondary implications for the individual, family and society, and how it can be prevented. Access to reliable and affordable contraceptives is an important concern in this respect. FASD prevention should be given a more prominent role in the development of alcohol policies.

Sharing the responsibility

The responsibility for FASD prevention should not be borne by women alone. Prevention of FASD is a shared responsibility of all stakeholders. Actions should focus on information about risks of alcohol use during pregnancy and support to be able to abstain from alcohol consumption during this important period of life. This support includes the provision of timely, compassionate, and competent prenatal care, as well as access to birth control and services to deal with alcohol dependence during pregnancy.

Increasing and sharing knowledge

About awareness of FASD
Although FASD is well known among the public in some countries, it is generally very low in a global perspective. Adolescents and adults with FASD are at high risk to come in contact with the criminal justice system. Many may end up in jails, become repeat offenders, and are often victimized themselves. Assessing awareness at the population level is an important foundation for decision-making about targeted or general strategies and other approaches to FASD prevention.

About the frequency of FASD
In many countries around the world, the prevalence of FASD remains unknown. In other regions, this information is available only for some geographic areas and for specific populations. Coordinated research on the frequency of FASD within and between countries is needed to guide prevention efforts and set benchmarks for measuring the success of specific approaches.

About diagnosis and diagnostic capacity
It is a common misconception that FASD is the same as FAS (Fetal Alcohol Syndrome). FAS is only one of several disorders caused by alcohol use in pregnancy and it represents only a minority of the cases of FASD, which includes all conditions caused by alcohol use during pregnancy. FAS may be diagnosed at birth or in the first year of life as it often has visible signs of abnormalities. The remaining categories within the spectrum of FASD are usually not recognizable at birth and therefore cannot be diagnosed until the child reaches pre-school or school age, and demonstrates obvious signs of abnormal behavior and serious limitations in knowledge and understanding.

The skill to diagnose the full range of FASD is generally limited, and in most countries, non-existent. International collaboration in diagnosing FASD should therefore be encouraged as a major step in capacity building in diagnosing, and in linking this knowledge to primary prevention, as well as measures to reduce the secondary implications of FASD.

Supporting the research and evaluation needed

There is a wealth of research needed on FASD. For example, basic mechanisms at the genetic and epigenetic level, which either may facilitate or protect against the development of FASD are not fully understood. Basic research may lead to the development of tools to identify risk groups more accurately, as well as to new opportunities for targeted prevention.

At the level of applied research and evaluation, very few controlled prevention trials have been undertaken that can produce reliable findings on how to reduce the frequency of FASD. Programs for prevention must include resources for evaluation of effectiveness.

Additional basic and applied research has the capacity to increase knowledge about prevalence and prevention strategies that are truly effective and cost-effective. This calls for international collaboration in research on FASD.

Using practical tools for capacity building in FASD prevention

There are a number of evidence-based practical measures available that can be introduced in many countries, regions or communities. For example:

1) Providing general information about FASD in appropriate school settings for both girls and boys, by making use of for example evidence based material on FASD.

2) Performing screening for problematic alcohol use among girls and women, which may signal alcohol use in later pregnancies. This can be introduced in primary care settings by the use of already available, validated and easy-to-use instruments. Evidence-based guidelines for providing treatment to pregnant women and mothers are available in the scientific literature and on many web sites.

3) Producing information on FASD, translated and adapted from existing sources, into country or region specific languages, cultures and systems. Such material should be made available widely and in the first place at schools, clinics and centers for maternal health and child health care.

National and international funding agencies and organizations should support such activities, which could be organized in cross country collaborations.

This article is reprinted with the permission of the authors through Professor Egon Jonsson, Executive Director and CEO, Institute of Health Economics. It was first printed in The Lancet Global Health. Volume 2, Issue 3, Pages 135 – 137, March 2014.

Age of Criminal Responsibility: An illusive dilemma

March 8, 2015 By John Winterdyk

If we, as adults, reflect back on our youth, there is probably not one of us who can say we didn’t commit some type of infraction for which we could have been held accountable under the former welfare-oriented Juvenile Delinquency Act (JDA) – in effect from 1908 until 1984 – or the more legalistic approach of the Young Offenders Act (YOA) – in effect from 1984 to 2003. However, self-report studies introduced in the mid-1950s have repeatedly shown that most of us were never formally apprehended during those formative years of our life. This phenomena is the “dark figure” of (youth) crime and has both an indirect and direct bearing on the age young persons should be held criminally responsible (i.e., mens rea) for their alleged infraction(s) and perhaps equally important – how they should be dealt with.

In this article, I limit the discussion to the issue of age of criminal responsibility for several reasons. First, there are many well-established legal systems around the world and a plethora of research attempting to come to terms with and explain youthful offending from a range of different perspectives, e.g., social, psychological, cognitive, environmental. Yet, with all this, not only have we been unable to come up with a universal explanation for delinquency, we have also been unable to agree on a minimum age of criminal responsibility. …the quintessential question should be: to what extent does our current youth justice legislation comply with international guidelines and standards and how might our degree of compliance impact the debate of criminal responsibility? Secondly, there has been much debate over the years about either changing the age of responsibility in Canada or, as under the YOA (carried over from the JDA), qualifying the age at which young offenders (as young as age 14) could be transferred to adult court if charged with a serious crime. The provision of transfer was later seen to be too harsh and even counterproductive to the well-being of young offenders and was repealed with the introduction of the Youth Criminal Justice Act (YCJA) 2003. However, we will see there has been a reinstatement of the provision with the passage of Bill C-10 (the Omnibus Crime Bill). And finally, given Canada’s status as a signatory member of the United Nations Convention on the Rights of the Child (CRC), the quintessential question should be: to what extent does our current youth justice legislation comply with international guidelines and standards and how might our degree of compliance impact the debate on criminal responsibility?

Mental vs. Moral Capacity

I think that it should be 10 and up because kids get away with a lot. – A comment from Oakwood just prior to the enactment of the YCJA (The Great Youth Criminal Justice Act Debate).

Considering the tragic 2013 killing of a six-year-old Saskatchewan boy (fortunately, a rare case) by a legally underage youth known to police. Under today’s legislation, the offender could not be held criminally responsible even though known to police. Yet prior to 1983, when the lower age limit of criminal responsibility (based on common law) was seven instead of 12, the killer could have been held accountable. As noted American psychologist Lawrence Kohlberg (1927-1987) determined, mental capacity is NOT the same as moral capacity – the ability to appreciate the meaning of one’s actions. However, in a number of countries where there is no lower age limit of criminal responsibility, the accused youth could still be legally processed. Furthermore, even though the YOA set a maximum age of juvenile responsibility at 17 in 1984, Alberta’s maximum age remained 16 for boys and 18 for girls until 1985. (Ironically, research has shown that girls mature at a younger age than boys!) Needless to say, one doesn’t need to look too far afield to garner the history of controversy surrounding minimum and maximum ages of juvenile responsibility. Some additional context is in order.

On what basis was the minimum age raised in 1984? It was based on the fact that most children leave elementary school and are thought to have the mental capacity to understand right from wrong at around age 12. Yet, completing elementary school has no direct correlation to whether a young person meets the legal benchmark of what qualifies as mens rea. As noted American psychologist Lawrence Kohlberg (1927-1987) determined, mental capacity is NOT the same as moral capacity – the ability to appreciate the meaning of one’s actions. As early as the 1760s, the esteemed English lawyer Sir William Blackstone (1723-1780) argued there was a legal justification for differentiating criminal responsibility between “infants” (up to the age of seven) and “adults”. According to Kohlberg’s model of moral development, the general level of moral reasoning that meets the legal standard of mens rea does not occur until around stages four (Authority and social-order-maintaining orientation) and/or five (Social contract orientation). Various research studies show that few children reach stage three even in junior high school and typically stages three and four don’t begin to express themselves until high school (average age of entry around 15!). As Kohlberg’s generally accepted stages are known to have to be experienced in total and in order, these facts alone should raise serious questions among legal scholars and social scientists who study at-risk youth about how we determine a minimum age of responsibility. Failure to do so is an injustice to young persons.

A ‘good’ idea without any teeth

As early as the 1760s, the esteemed English lawyer Sir William Blackstone (1723-1780) argued there was a legal justification for differentiating criminal responsibility between “infants” (up to the age of seven) and “adults”. …in the United States, each state is responsible for setting its own age limits for criminal responsibility. This, obviously, raises further concerns about fair and equitable justice between jurisdictions. He argued that infants were not capable of forming intent, although along with certain contemporaries, he acknowledged that youth between the ages of 7 to 14 fell into a no-man’s-land. In North America it wasn’t until the late 1800s, along with the insights of a Toronto newspaper reporter by the name of J.J. Kelso (1864-1935) and several other pioneers of the “child saving movement”, that the first juvenile court was established in Chicago. The court was grounded on the British doctrine of parens patriae (the State as parent). However, unlike in Canada, only 13 American states use a Common Law approach and have set lower age limits ranging from 6 to 12 years of age – with the median being 12. (By contrast the minimum age of responsibility in the UK is 10, France 13, and Brazil 18.) Also in contrast to Canada, in the United States, each state is responsible for setting its own age limits for criminal responsibility. This, obviously, raises further concerns about fair and equitable justice between jurisdictions.

Despite the 1948 UN Universal Declaration of Human Rights, and more specifically the 1990 CRC [1], the debate about minimum age of criminal responsibility has not been universally embraced. With the new amendments to the Youth Criminal Justice Act, it became easier to try young offenders as adults – a direct contravention of the CRC. This may, in part, be due to the fact that the UN conventions do not specifically identify a minimum age. Section 10 of the CRC simply requires parties to establish a:

“…minimum age below which children shall be presumed not to have the capacity to infringe the penal law” (Art 40(3)(a).”

Finally, another major UN convention, the UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules, Article 4), reads:

“In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age limit, bearing in mind the facts of emotional, mental and intellectual maturity.”

A pending ominous ‘slippery slope’

In the UN’s 10-year report commemorating Canada’s ratification of the CRC, we received a failing grade. However, the report noted that until 2012 Canada had been complying with the CRC guidelines. Why the change? With the passing of Bill C-10 came new provisions for stiffer penalties for young offenders. With the new amendments to the Youth Criminal Justice Act, it became easier to try young offenders as adults – a direct contravention of the CRC. The UN report further pointed out there was no child rights assessment or mechanism to ensure the Bill’s conformity with CRC provisions. Finally, the UN committee report also pointed out that ethnic minority and Aboriginal youth still continue to be over-represented in the youth criminal justice system.

Although the UN report does not offer any criticism about the minimum age of responsibility, the fact is that the new legislation potentially puts underage youth at risk of being directed to the youth/adult system under the umbrella of parens patriae.

Conclusion: Where to from here?

This article draws attention to several key issues that demonstrate the lack of a clear rationale or justification for setting a minimum age of criminal responsibility. This is due in part to the contradiction inherent in the criminal justice system (CJS). As I described in a previous article in LawNow, the CJS is a mix of classical criminological ideals (rule of law) vs. the back-end of the system (sentencing and corrections), that embraces a positivist criminological perspective. The matter is also compounded by the fact that despite various international conventions, every state retains considerable discretion in setting its own minimum age of criminal responsibility. While the intent of trying to protect young people from being held accountable when they may not be able to appreciate the implications (i.e., moral character) of their actions is laudable, the fact that the law has not/does not allow itself to be informed through social science evidence continues to raise serious doubts about the justification for what, if any, fixed age is justifiable. For example, as implied in this article, accountability does not always necessitate criminal responsibility. In the meantime, much could be learned by examining how other youth justice models and CJSs have approached the issue. [2]

Notes:

1. The United States signed but did not ratify the Convention. However, the CRC is the most ratified of all the UN Human Rights conventions and it is a binding international treaty.

2. J. Winterdyk (Ed.). (2014). Juvenile justice: International perspectives, models, and trends. CRC Press: Boca Raton: FL.

Unpaid Interns have Little Protection under the Law

November 5, 2014 By Stephanie Jansen

Imagine spending years in university, only to graduate and find out that in order to secure a job, you would have to work an undetermined amount of time for free. At the end of the internship, there will be no assurance of employment; instead, you can chalk it up to getting some good experience and, hopefully, a reference.

This is precisely what many students are finding themselves faced with: the increasingly competitive job market forces graduates to essentially extend their education by taking a job high in expectations, and low in compensation. Worse, because of the lack of regulation around internships, many students find themselves in situations where they do not know their rights, and are unsure of what they can reasonably expect or demand.

In some cases, internships are a required part of obtaining a degree. But, in many reported cases, internships have preyed on young people. … the increasingly competitive job market forces graduates to essentially extend their education by taking a job high in expectations, and low in compensation. New graduates tend to choose an internship with the hopes it will result in reference letters, but the work students are being asked to do can sometimes be qualified as mistreatment by the employers. Filing a complaint is risky and can result in the reference letter being revoked. Worse, the profound lack of regulations and enforcement has contributed to the mishandling of an entire employment industry. The absence of oversight has become a hot issue in the federal government, due in part to a tragic death of an Edmonton student.

Andy Ferguson was one of those students. Studying radio and television at NAIT in Edmonton, Andy had a four-month unpaid internship for Astral Media. Labour laws in Alberta do not include unpaid work by students or interns in provincially regulated workplaces. Their stations include “The Bear” and “Virgin Radio.” This practicum was mandatory to graduate, but Andy was also working as a paid intern at the same radio stations. In other words, he was working up to sixteen hours at a time in both positions. After one of those very shifts, Andy crossed the centerline while driving and hit a gravel truck head on at 6:00 in the morning following an overnight shift. He was killed.

Federal laws do not protect interns at this time. Each province has its own statutory provisions to deal with employment standards, though many are unspecific about internships. For the purposes of understanding the ambiguity of the laws around internships, here is a very brief review of provincial statutes.

Provincial Law – A Survey

British Columbia: Employment Standards Act

Unpaid internships are illegal unless the internship meets one of the two requirements: the internship must be hands-on training as part of a formal education program or the internship is part of professional training (like law or architecture).

Alberta: Employment Standards Code

Labour laws in Alberta do not include unpaid work by students or interns in provincially regulated workplaces. The definition of employee in the Employment Standards Code is vague in that it doesn’t pointedly include interns. Still, internships are not illegal as long as they are part of a formal education program. There is vagueness around whether interns should be entitled to the minimum wage of $10.20 per hour.

Saskatchewan: Saskatchewan Employment Act

The law provides for a minimum wage for most employees, but doesn’t clearly state whether interns are entitled to the wage.

Manitoba: Employment Standards Code

Unpaid internships are illegal unless they are part of an approved work experience program, or they provide training for certain professions.

Ontario: Employment Standards Act

Unpaid internships are illegal unless they are part of an approved program, the internship provides training for certain professions (i.e. law or dentistry), or the internship meets six conditions that are required to be considered a “trainee.” The training must: 1. Be similar to what would be given in a vocational school, 2. Be for the benefit of the individual, 3. Ensure there is no benefit derived by the employer while the intern is trained, 4. Not displace employees of the person providing the training, 5. Not accord a right to become an employee of the organization providing the training, and 6. Be upfront about remuneration for the time spent in training. (Editor’s Note: See the article “Possibly, Maybe, Perhaps” in this issue for a more detailed discussion of the Ontario legislation.)

Quebec: An Act Respecting Labour Standards

Unpaid internships are illegal unless the internship is part of a program provided by an approved educational institute, the internship is with a non-profit organization with social or community purpose, or it is an internship that is associated with a vocational program.

New Brunswick: Employment Standards Act

An hourly minimum wage is provided for most employees, but the definition of employee is defined as a person who performs work for wages. It is unclear that this applies to interns.

Newfoundland and Labrador: Labour Standards Act

A minimum wage of $10.00 per hour is provided for most employees. An employee is defined as a person who works under a contract of service for an employer. Because the definition is broad, it could include interns. Yet, if the internship is part of a formal educational program, it can be unpaid.

Nova Scotia: Labour Standards Code

A minimum wage has been set at $10.15 per hour. An employee is defined as a person employed to do work. Internships could be included in this definition. If the internship is a part of a formal educational program, no hourly wage is required.

Prince Edward Island: Employment Standards Act

The hourly wage is set at $10.00 for most employees. An employee is a person who performs any work, but also includes someone who is being trained by an employer. It is unclear whether unpaid interns qualify for minimum wage.

Federal Law: Canada Labour Code & Bill C-620 – Intern Protection Act

The federal regulations apply to organizations that are subject to the Canada Labour Code, and include airlines, broadcasters, the federal government and cellular phone companies. There are no exclusions for internships, and this has created uncertainty around whether internships are legal under federal regulations.

In response to this confusion, and in direct response to the Ferguson family tragedy, an NDP Member of Parliament named Lauren Liu has introduced a private member’s bill entitled C-620, The Intern Protection Act. This bill is an Act to amend the Canada Labour Code and to add a section that would protect intern’s rights by changing the definition of employee to include “a person who receives training, with or without remuneration, from the employer.” … an NDP Member of Parliament named Lauren Liu has introduced a private member’s bill entitled C-620, The Intern Protection Act. Additionally, the proposed legislation adds that employers cannot provide training without remuneration unless all listed conditions are met. They are:

the training must be approved by a post-secondary or vocational school, and the completion of the training must contribute to a degree or diploma, or the training is comparable to that provided by the schools;
the training is primarily for the benefit of the employees and must improved the job or career aspects in the field of the internship; and
The employee being trained cannot replace any paid employees and the activities performed must differ from regular employees.

All of these terms must be complied with in order for an organization to hire someone without pay.

Although the new Act would only apply to federally regulated organizations, it would extend workplace standards and protections to all unpaid interns, and set clear rules and conditions for the use of any unpaid internships. Additionally, the bill proposes that if the employer provides unpaid training in compliance with these conditions, they must notify the employee what the terms of the training are, including length of the program, and what the employee will be doing; the hours or work expected; the fact that there will be no pay; and they must keep a record of the hours worked by the employee.

Ultimately, the proposed private member’s bill aims to prevent abuse of interns and to help young Canadians avoid exploitation from employers. According to the “The Link,” an online independent newspaper from Concordia University, MP Liu suggests that the bill would provide interns with the same protections as other employees by limiting the workweek to 48 hours, provide the interns with the right to refuse dangerous work and protect them from sexual harassment.

While the purpose of internships is usually to gain valuable experience, to date, they have not fulfilled their mandate. A bill like the Intern Protection Act is very important, but the statistics around these types of bills passing are disappointing. In the past one hundred years of Canada’s Parliament, only 229 private members’ bills have passed. Here’s to hoping this one is number 230.

Viewpoint 38-5: Ten Steps to Creating Safe Environments for Children and Youth

May 9, 2014 By Canadian Red Cross

A Risk Management Road Map to Prevent Violence and Abuse for all organizations that intersect with young people

What constitutes abuse? violence? bullying? harassment? Why do bad things happen in even the best organizations? What is the duty of care and what is your organization’s liability? How can you help protect every young person your organization serves?

Organizations must be able to answer these questions.

RISK MANAGEMENT is the process of developing a culture, policies and structures to diminish the risk of an incident that would harm a vulnerable person.

Effective risk management requires comprehensive prevention planning. This means identifying and analyzing potential risks and the harm they can do, developing a comprehensive plan to control the risk, and putting policies and procedures in place to properly handle an occurrence and reduce the negative effects on both an individual and the organization.

CANADIAN RED CROSS is a national leader in helping organizations manage the risk and protect young people. Its ten-step process that encompasses a constellation of programs and services called RespectED. These include presentations, workshops, training, organizational consulting and manuals on prevention. All can be tailored to your specific requirements. Prices vary, depending on the services required. Take Ten Steps, and make the journey to safer environments for all of our young people!

For more information contact: Monique Methot, 780-702-2543, [email protected]