Doug Ford’s Civil Rights Crisis Pt. 2

(Frustrated over the changes to the autism program parents and their supporters take to twitter to vent frustrations as Government Ministers claims to be a victim)

Expect four long years if you don’t support the autism changes. Don’t listen to dissolute parents, they are professional protesters. If you give them [parents/caregivers] an inch they will ask for a mile. They all have their hands in the public trough. Be very, very careful. I hope all your children all die under Ford. Show up at my office I’m calling the police. What do these statements have in common? Over the past few months they have all been directed to parents/caregivers/support workers of extremely vulnerable children from Ontario policy makers, cabinet ministers, even from Premier Doug Ford himself.

Since my last blog, there was an internal report that was released on autism that stated the province intentionally lied on the number of children on the wait list, and that government’s current plan would leave families “destitute”. Premier Ford was recently asked about this report on 640am Toronto. You can listen to his response below.

Ford basically stated that the province didn’t lie on the numbers, and that this report is from only one person. He kept deflecting questions relating to this internal report to an expert committee the province has set up. Remember in my opening that “I hope your children all die under Ford” comment. That comes from Alex Echakowitz who sits on the panel of experts that Ford is deflecting too.

There was a recent attempt by the Ford Government to legislate itself out of being sued as a result of crown ministers who are acting in bad faith or acting indecently by introducing sweeping changes to crown liability in the Crown Liability and Proceedings Act as discussed in part 1 of this blog and passed in Ontario’s budget implementation bill in April. I caught up with the Director of Fundamental Freedoms at the Canadian Civil Liberties Association (CCLA) Cara Zwibel to discuss these legislative changes. Zwibel stated that governments are typically considered immune on policy but not operational issues.

A policy matter would be like changes to the Autism Program. Operational issues could be things like responding inappropriately to the public, lack of information from a Ministry, withholding funds, and organizational issues that sort of thing. As far as the CCLA is concerned Zwibel said:

For as long as there has been crown liability, there’s been this distinction between liability for policy matters and liability for operational matters. The courts have generally said that the crown is not liable for policy matters, but may be liable for negligence in operational matters. What I think this new law is trying to do is call a bunch of things we would usually characterize as operational, and deem them to be policy, thus immunizing the Crown from liability.

Zwibel stated that the definition of operational and policy issues can also be defined almost in real time by way of regulation and the government could apply this retroactively. “Basically without making an amendment to the legislation, the government can just pass a regulation that calls something a policy matter or a regulatory decision and give itself immunity.” Zwibel said.

What this could mean is that if someone were to sue the Ontario government, the government could basically regulate itself out of a law suit without it ever being heard in a court room. When asked about the prospect of another Walkerton style tragedy, Zwibel did state that in some cases this legislation may not apply as a result of it being a federal charter issue, however it would make the cases that are not charter based a lot harder and the Crown Liability and Proceedings Act adds significant hurdles to claimants going forward.  Zwibel explains:

One of the particular parts of this legislation is that it sets a barrier for people who want to make a claim that the government engaged in misfeasance or bad faith. The way the act is written for these types of claims you would need the court’s permission to continue. In order to get that permission you’re going to have to do a bunch of disclosure and be subjected to cross –examination and the government really doesn’t have to do anything.

Basically this legislation makes it virtually impossible to prove government acted in bad faith or indecency. Those that do bring cases like this forward have to jump through a whole bunch of hoops, with all their cards laid on the table for government to fully see and cross-examine. The government on the other hand doesn’t have to produce anything from its side to the claimants in the process.

While the Crown Liability and Proceedings Act has not been proclaimed meaning it isn’t in full force as of yet, Zwibel stated that the CCLA stands ready to intervene and make its arguments against this legislation in court when the government “activates it”. Zwibel said that the CCLA is deeply troubled with the fact that legislation dealing with government accountability was tabled in the budget bill, and not given proper time for public debate and scrutiny.

Since this legislation was birthed when Caroline Mulroney was the Attorney General, I’ve requested comment from Mulroney’s office, and Ms. Mulroney has not answered request for comment prior to a 5pm deadline yesterday.

For the autism community however, the threatening tone and nature of government communications towards “destitute” families and current policy changes as a result; are increasingly looking like they have run a foul to the Federal Canadian Charter of Rights and Freedoms. Families should start to assert their legal rights on a government that seems hell bent on making itself immune to not just bad behaviour from government ministers and staff, but willing and able to threaten to silence dissenters as well.

UPDATE 6:32 PM: Caroline Mulroney’s office has responded to request for comment and disputes concerns the CCLA and this blog have expressed.  A spokesperson for Mulroney offered this comment (emphasis added):

What these changes accomplish is to ensure that the government can make good faith legislative, regulatory and policy decisions without fear of being sued for negligence claims that lack merit, and to ensure that the courts are not evaluating the legislative, regulatory or policy decisions of a government – that is what the ballot box is for.

People can always sue in Ontario’s courts to receive the justice they deserve. It should be noted that disputes involving contracts, constitutional issues, human rights and judicial review of government decisions are not impacted by these changes at all, and the government would remain liable for the day-to-day, operational negligence of its front line employees if proven in court.

Under the current system, well-funded lawyers are constantly bringing expensive lawsuits over principles of law long settled by the Supreme Court of Canada. The government spends tens of millions of taxpayers dollars every year on litigation lawyers. Each dollar spent defending against a frivolous lawsuit brought by an expensive lawyer is a dollar that could have gone to services like healthcare or education.

I guess ministers of the crown are free to do as they please until election day. Somehow I can’t see the courts agreeing with that.

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Doug Ford’s Civil Rights Crisis Part 1

Traditionally the conservative movement has always been one of accountable government and respect for the rule of law. Since the Ford Government took power in Ontario and under the support of Attorney General Caroline Mulroney, it has legislated the notwithstanding clause into legislation with the threat of doing it again, and most recently threatened crown immunity as a way to try and negotiate out of contracts signed by the previous government. Then there are the legal aid cuts essentially muzzling low income individuals with cuts to social services and a redefinition of disability in forthcoming legislation. In these instances, Mulroney has attempted to make the government above the law of the land and unaccountable to the people it serves.

Last week the Canadian/US Bar association raised significant concerns about the rule of law to Ontario’s Attorney General with respect to the government ripping up beer contracts in Bill 115. It’s not just about beer. In its letter the bar association stated (emphasis added):

“If enacted, Bill 115 risks undermining the rule of law in a number of ways. First, it represents a seemingly arbitrary decision by the government in office to invoke its legislative power to override the law of contract and depart from a legal undertaking by the Government of Ontario relied on by private parties. Second, unlike laws of general application, which do not predetermine precisely whom they will affect, it targets the parties to a specific contract. Third, it expropriates private parties while purporting to deny them any right to compensation and redress in Canadian courts. This last characteristic has few, if any, precedents in Canadian legal history. The norm against expropriation without compensation is a feature of legal systems protective of property rights and the rule of law, and finds expression in the investor protections of international investment treaties.”

Basically what this means is that government has no deterrence for breaking contracts or law. If there’s no deterrence for breaking the law, then there’s nothing in place to keep government accountable. If there’s no accountable government, than government can basically break the law at will without penalty or prosecution. Deterrences to keep government in check for the most part are financial penalties for breaking the law, whether that be contract or civil/constitutional law.

What the bar association is pointing out to the attorney general is that legislating legal immunity for breaking contracts can have adverse effects across the legal system in many different areas as a result of the lack of deterrence. While the bar association’s letter did deal with Bill 115 exclusively and hinted of wide spread effects legislating crown immunity could have on the rule of law in Ontario, it did not reference a more troubling position the Ford government has already taken regarding crown immunity across the board.

The Ontario Government has introduced legislation in Bill 100 (budget implementation bill) called the Crown Liability and Proceedings Act. Section 11 of the Crown Liability and Proceedings Act makes the government completely immune to civil lawsuits relating to policy decisions. This section should be of particular concern with respect to those whom rely on government for help – meaning our most vulnerable in society and particularity those with disabilities. Section 11 of the Crown Liability and Proceedings Act states the following:

“11. Extinguishment of causes of action respecting certain governmental functions

11. (1) No cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of any negligence or failure to take reasonable care while exercising or intending to exercise powers or performing or intending to perform duties or functions of a legislative nature, including the development or introduction of a bill, the enactment of an Act or the making of a regulation.”

Mulroney’s staff know they have a problem with incompetence and stupidity in cabinet. Lisa MacLeod being the one that’s most visible to the public. The Ford Government is actually making itself immune to stupidity by crown ministers rather than the appointment of qualified ministers. Just when you thought it couldn’t get any worse, Section 11 continues:

“11. (4) No cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of any negligence or failure to take reasonable care in the making of a decision in good faith respecting a policy matter, or any negligence in a purported failure to make a decision respecting a policy matter.”

In particular for autism community this means that the Ford government cannot be held to account in court for freezing the autism wait lists for therapy, which is probably the most uneducated and stupid move I’ve ever seen from a Minister of the Crown in any level of government both in Mulroney’s part to protect this incompetence within legislation and for MacLeod’s part in making a huge mistake by freezing the wait lists which opened up the province and tax payers huge to legal liability as a result of MacLeod’s incompetence on the autism file.

The next quote from this horribly thought-out legislation is what deeply concerns me, considering government is about to redefine disability law in Ontario. This piece of the legislation makes the Government immune to any court challenges on those proposed changes. For the autism community this also makes the government immune to changes with respect to the Ontario Autism Program among other things:

“11. (5) For the purposes of subsection (4), a policy matter includes,
(a) the creation, design, establishment, redesign or modification of a program, project or other initiative, including,

(ii) the eligibility or exclusion of any person or entity or class of persons or entities to participate in the program, project or other initiative, or the requirements or limits of such participation, or

(iii) limits on the duration of the program, project or other initiative, including any discretionary right to terminate or amend the operation of the program, project or other initiative;

(b) the funding of a program, project or other initiative, including,

(i) providing or ceasing to provide such funding,

(ii) increasing or reducing the amount of funding provided,

(iii) including, not including, amending or removing any terms or conditions in relation to such funding, or

(iv) reducing or cancelling any funding previously provided or committed in support of the program, project or other initiative;”

While questioned on this piece of legislation during a recent question period, Mulroney stated that this immunity doesn’t extend past provincial law, and will not make the government immune to federal charter challenges. The Canadian Civil Liberties Association on the other hand has already threatened to challenge this legislation in court the moment it receives royal assent because it is unconstitutional.

I’m deeply concerned that moving forward it’ll end up being open season on the rights of our most vulnerable. There seems to be a potential within this legislation that expressing frustration on policy could end up leading to a reduction in services. Considering the amount of backlash regarding the autism file, and parents registering their concerns regarding MacLeod’s leadership through consultations and protections awarded in law to protect ministerial decisions made out of incompetence and neglect, this could be setting up to be a perfect storm of intentional civil rights abuses by the Government of Ontario.

Part two of this blog will focus on what this will mean for of accountable government under Premier Doug Ford.

No More Words, It’s Time For Action

Our family was one of the first to be contacted by Minister MacLeod’s staff to engage in a preliminary consultation process with her Ministry. Our family has since rescinded that invitation as a result of discriminatory and unorganized policy coming from MacLeod’s office and most recently from the Premier Ford himself. Our family believes that unless there is a 180 degree turn on the use of age caps, and new leadership is presented on the autism file, that any consultations will be a waste of our time. Time better spent on taking care of our severely autistic son. The below was sent to our contact within Macleod’s Ministry office explaining in detail why our family will not take part in these consultations going forward:

Mr. Lockridge,

The Government of Ontario has now upended and rebuilt the autism system of supports twice in less than 3 years. This has added an abundance amount of stress on caregivers, and children including mine. Stress that has manifested itself in now chronic health conditions to which I now suffer. Simply put, I’m not sure anything I say will change the level of understanding needed to ensure that families in the future are not burdened with the extra work load and stress in dealing with policy makers who don’t understand (or take the time to) what’s taking place on the ground after years of consultation, and are making policy decisions that do not reflect any understanding of the amount of stress and work we are already engaged in when caring for kids and adults with challenges. Unfortunately this lack of understanding still reins pretty high up the chain right up to the premier’s office on a recent phone call with a parent of two kids on the spectrum and I cannot commit to working with the Ministry or this government under such ignorance that was recently displayed by Premier Ford himself:

Minister MacLeod and her staff over the past several weeks have made extremely derogatory comments against families who are under a tremendous amount of stress, along with those who are supporting them. The information I handed to Ms. Mulroney was for all purposes my family’s legal position. I have not seen any of the recommendations from this presentation implemented. There has been a tremendous lack of information from the Ministry on announced changes which is adding to the stress of not being able to plan ahead. This includes a lack of information on SSAH. During my presentation to Ms. Mulroney, I’ve recommended that any further consultations be transparent. I have not seen any willingness to provide any transparency on these consultations. The government has also refused to walk back on its discriminatory age caps.

I filed a “Notice of Intent” with Mr. Colin Aitchison about 1 ½ weeks ago giving the government until April 1st to implement my recommendations, and revert back to the old OAP while we work collaboratively on reducing the wait lists. This was to limit the liability currently on government for freezing the wait lists due to discriminatory policy. The fact that the Ministry is sending me a junior policy advisor barely out of diapers, rather than dealing with the governments lawyers – since a vast majority of the work ahead will be on ensuring the government stops discriminating against our most vulnerable and their families, and ensuring the government is properly accommodating individuals with disabilities – is telling in itself.

With the amount of consultations that have been done previously, if the Government of Ontario simply can’t get what it’s doing to families and vulnerable children when you up end the autism support regime, than maybe it’s time a Superior Court Justice weighs in on that, rather than wasting everyone’s time going through consultations that will not likely yield balanced policy as a result of continued ignorance.

Should the Ministry in the near future find itself under new leadership with the goal of ensuring policy is non-discriminatory, you may contact me again and I’d be more than happy to provide further input as an expert analyst in complex systems and as a user of the system. Until then what I have to say, needs to be said in front of a judge to ensure an expert amount of care is given when dealing with policy changes surrounding our most vulnerable. I quite simply trust our judiciary more than I trust The Government of Ontario at present, especially after the linked call with Ford above.

UPDATED: Attorney General Asked To Probe Ministry of Community and Social Services

February 24, 2019 Leave a comment

During our meeting with Mulroney two weeks ago I brought up several concerns in the system that her office is currently investigating regarding the lack of accountability with NGO’s us parents have to deal with on a day to day basis. Last night leaked documents have revealed that the Ministry of Community and Social Services has intentionally inflated the autism wait lists in an attempt to sell the governments new program to the public and attack political opponents. The Ministry has also attempted to hide this from families ordering NGOs to keep all of this confidental:

The following was sent to Caroline Mulroney’s executive assistant last night on behalf of our family:

Under counsel’s advice, I’m granting you a one weeks extension with respect to your written submission to me in light of recent documents (attached) that have become available. I requested a compliance audit through the Ministry of Community and Social Services on YSSN in late 2018. You should be aware of those communications since I’m sure I copied you on them. Your office is also aware that the Ministry of Community and Social Services is on record directing me NOT to communicate with Ms. Mulroney on our issues. I would ask that a full compliance audit not only be considered on YSSN but also with respect to Kerry’s Place and the actual Ministry of Community and Social Services.

Should your office fail to produce compliance audits on all three entities, I have instruction from our counsel to personally deliver our statement of claim to the Attorney General’s office at Queen’s Park on March 7th, 2019.

You are to confirm a compliance investigation has been initiated on all three entities, or referred to the proper legal authorities by not later than the end of the business day, March 4th, 2019. Failure to comply will result in legal action against the Attorney Generals office.

Please govern yourself accordingly.

Jason Koblovsky

UPDATE 2/26/2019: Update from Mulroney’s office is as follows:

 

My Response:

Hi MaryLynn,

Thanks for the response. You have a duty to report. I’ll see the attorney general next week.

Jason Koblovsky

Kids With Autism Deserve Responsible Leadership

February 13, 2019 2 comments

(Caroline Mulroney and Myself After Our meeting)

We are constituents of Caroline Mulroney. I have a son who is 14, who just started to receive autism therapy under the new Ontario Autism Program. The government’s announcement last week on autism services will see my son lose his therapy. The government announced that for kids over the age of 6, they would be providing $55,000 lifetime amount for autism therapy. The Ford Government is only allowing families to use $5,000 of that per year, for therapy that costs $80,000/year.

After taking to social media in response to being snubbed by one of Mulroney’s staff that went viral, Mulroney agreed to meet with our family. We explained to her that we’ve had a tremendous amount of difficulty obtaining the little support we have, because we were purposely left out of the loop on supports we qualified for. We had an outside consultant come in to assess our families needs in 2017, to find out that our case managers and NGOs were intentionally not telling us about services and supports we qualified for, which landed my family in crisis for years while waiting for this therapy. Prior to 2016 our family had significant difficulties in getting placed on the wait list for autism therapy despite several requests over a 6 year period to do so.

We had a significant period of time where our son was going through meltdowns almost every two hours. This included yelling, screaming, hitting, biting, and self-injury. He was sent home on occasion from school, because the behaviors got so bad. As a parent, this time of our lives was our own version of hell. Having to watch my child in such emotional distress, and not being able to comfort him and protect him and to tell him everything will be okay, was a really horrible thing to go through. Both my wife and I have suffered health wise as a result of this. We went through 3 long years of this consistently being told there’s no intimidate help. We did put him on medications to try and get these behaviors down to something manageable. The medications did help “a little”.

We finally got on the provincial wait list for therapy in August 2016, and we were one of the first families in York Region to enter the Ontario Autism Program in March 2018. We chose the direct funding option. What direct funding is, is essentially the government pays for the autism therapy through a private provider which is what the government is currently offering for us to do at $5,000/year. Upon shopping around for a private provider, there isn’t very many in York Region to choose from. Most of them are based in Richmond Hill, Markham which would be extremely difficult to get to. Only one of these providers would do in home therapy sessions, and we didn’t feel this provider was a match for our family and the budget we were provided at the time. So we chose the direct service option, which is where the therapy is provided by provincially funded organizations. We started our therapy through direct service provider in August of 2018.

Since August we’ve had huge gains in communication and toileting which have been the priority. His aggressive and self-injury behaviors have decreased. Our next goal, which is now up an in the air is to get him communicating words. I’ve never heard my child say “Dad I love you”. Under the governments current plan as announced, that will not happen. I will never hear those words from him. I’m also concerned about going back into our own personal hell again as a result of him losing a lot of what he has gained in 6 months. This therapy needs to be maintained and we haven’t received it for long enough that it he will hold on to what he’s learned let alone learn other skills such as talking. He’s now much bigger, and it’s going to be very difficult for us to care for him at home without this therapy.

All of the above was communicated to Mulroney in detail as I presented these issues to her. She listened and was taking notes. Based on our experience I presented the following concerns recommendations to her.

Concerns with Governments Approach:

– While I recognize that early intervention is important, those whom haven’t had that opportunity as a result of the significant lack of accountability in the prior system should not be thrown under the bus. The government has a responsibility under law to accommodate based on need, not age.

– $5,000/year under the announced changes for autism therapy will NOT meet our family’s needs nor be beneficial to our son

– Our son will regress without the intensity he is currently receiving under current therapy making it extremely difficult to care for him in home.

– There is a lack of private providers in York Region and across the province. The government’s current approach will clear the public wait list, only to put these kids on other wait lists with other private providers as a result of the lack of capacity. This will significantly impact kids in service now. Gains made in service will be lost, and this will defeat the government’s current objective to get these kids the help they need ASAP.

Policy Recommendations:

Crisis Management and Prevention

– In 2016 the people of Ontario sent a strong message to the Wynne Liberals and to all political parties to properly fund this therapy. Reducing that funding for this critical therapy was seen unethical then as it is now. The resolve of the tax payers around this hasn’t changed since 2016. Doug Ford promised he would continue to support autism families during the election by looking strait into the camera and saying he was behind all of us 1000%.

As such I would recommend for an immediate reinstatement of the Liberal Ontario Autism Program (OAP) which was worked on by families, experts, and in a by-partisan way from input by all political parties. Up and until Patrick Brown resigned, the PC party was committed to that plan. All three parties were committed to providing the necessary funding during the election to ensure that the OAP remained in place. (autism debates). You made a commitment to the tax payers to support us. Keep it! The OAP was not bankrupt, it was 3 months old when the election happened and it was waiting for commitments that your government made during the election to keep it up and running.

– Referrals to the OAP need to be electronic and done on the back end.

– For wait listed families. I recommend the government create a Rapid Response Crisis Intervention team (RRCI) that will be able to assist with the immediate needs of the family AT HOME and current future funding and in home supports, while waiting for the provincial ABA to kick in. This team should include an outside consultant to ensure that the family is being properly supported, as required under the provinces legal responsibilities. High risk kids, such as those with self-injurious and aggressive behaviors should be receiving immediate funding for in home supports/services regardless of age, until long term ABA support is secured.

– While there is definitely a need for more training of staff in schools, it should not be at the expense of FAMILY SUPPORTS. I am concerned that the education unions are using parent protests to position themselves ahead of families like mine, and the support we need in home. I would recommend that the priority going forward is on supporting families, however I do recognize the need for investments in education as well. I would also ask as part of this an immediate amendment to the education act REQUIRING the school boards to allow ABA into the classroom regardless of where that ABA is coming from. I am extremely concerned that without this amendment that ALL ABA treatment for school aged children will be disrupted, further putting families back into CRSIS!

– I also highly recommend the government set up a public committee to work in a transparent and bi-partisan way to address the problem of reducing the wait lists, and legislating meaningful accountability mechanisms rather than building a system of supports in the smoky back rooms of Queen’s Park. I believe strongly that stakeholder organizations and NGOs that refuse to make their comments public and on the record in a matter of public policy and within the public interest, should not be advising government at this time. The autism community on whole requested public transparency in the implementation committee for the OAP under the Liberals plan through the Ontario Autism Coalition which failed to produce results. Members of the implementation committee were tied to non-disclosure agreements, and the community received minutes of meetings sometimes months after these meetings took place.

– I would be happy to testify before such a committee as a parent who has lived the broken system of supports and provide further evidence of what we’ve had to deal with as a family when asking for help.

– Moving forward the government’s approach needs to be sustainable and respects its legal obligations to autistic children and adults. We can not keep going through a system overhaul every few months, and putting families and their kids through crisis after crisis. Stop it. This is emotional exhausting and it’s talking its toll on everyone involved.

After the presentation was finished. Mulroney pointed out that my recommendation on the Rapid Response Crisis Intervention team, was very similar to something they are working on in their plan for autism services. The term she used was a “family navigator”. This was also part of the liberal autism plan, but I stressed the need for this role to be expanded and meaningful to families moving forward.

I got the impression from Mulroney that as of now, they will not be going back to the plan under the Liberals. Mulroney made a commitment to not just our family, but also others in the same situation that no matter what system is set up and in place, that the government will ensure that it is properly accommodating families moving forward. Mulroney observed my son in an autism therapy session for a little bit.

At the end of the meeting, came something I did not expect and it was a very human moment. Mulroney came up to me, gave me a really big hug, and said to me “You’re an excellent father, don’t let anyone else tell you any different.” I replied almost in tears “You’re an awesome lady, don’t let anyone else tell you any different.” This to me alone suggested that we got through to her. It’s very hard to explain to people who don’t know what it’s like living with autism or for that matter caring for a person who is disabled. All MPPs should take the time to observe these kids in home, in therapy and listen to all of our concerns. Mulroney also stated that she will be hand delivering our recommendations to Minister of Community and Social Services Lisa Macleod.

We made a commitment to working with Mulroney’s office to ensure our family moving forward is properly accommodated. Mulroney stated that she is also meeting with several other families in the very near future to discuss their individual concerns as well. I’m cautiously optimistic, but I will not support any plan that puts any family into further crisis.

Whatever the answer is, it’s going to require responsible leadership moving forward, and I have serious doubts on whether or not that’s going to happen under Minister Macleod. I think Macleod has lost the public confidence on this issue, and she keeps trying to spin it around how great she is, rather than actually walking back a bit and listening to us parents. Recently Autism Ontario has distanced itself from MacLeod’s plan, and rather than focusing on building a coalition to come together in building a plan that is supportive of our vulnerable kids, MacLeod is publicly threatening experts that do not come in support of it. That is not an example of responsible leadership.

Autism Dad’s Open Letter To Ontario’s Attorney General

September 11, 2018 Leave a comment

Ms. Mulroney,

As a parent with a kid who has severe autism, I am deeply concerned about the government’s use of the notwithstanding clause suspending the Charter of Rights and Freedoms. Premier Ford in his presser on September 10th, hinted that he would be willing to use this clause outside of the issue with Toronto City Council. In a further television interview later that day on CP24, Premier Ford announced that the province is in a “financial disaster”. I am concerned that your government will use the notwithstanding clause to circumvent the rights of our most vulnerable children in order to balance the budget. Our children are already in a humanitarian situation as a result of a support system that is broken, lacks accountability and treats our families and children as adversarial. I have provided copies of documentation with supportive evidence to Amy Fee’s office, and what our family is currently going through with respect to support and service.

I am concerned that the government will not fix this system of supports to ensure that it respects our children’s fundamental human and constitutional rights, and may be moving to circumvent those rights in order to push forward its mandate to balance the provincial budget. A concern I expressed directly too you during the last election, and most recently to your staff who also made me aware they also have children who are autistic, and are also concerned about this latest move by Ford to use the notwithstanding clause and suspend the charter. We need a government that respects the rule of law, and respects the will of the people, and most importantly respects our independent judiciary to which upholds our most fundamental rights and freedoms. Once you suspend the rights of one group of people, you open up the door to suspending the rights of anyone on any given issue. This is why the notwithstandingclause is very rarely used, and when used done so in a thoughtful careful way.

I hope that your government will reconsider this move to use the notwithstanding clause, and ensure that the rights of all Ontarioians are respected in policy and legislation moving forward during your term as my MPP and the provinces attorney general.  I look forward to meeting with you to discuss how we can achieve the mandate of fiscal restraint, and at the same time respecting the very fundamental constitutional rights our system of government is tasked to uphold.

Warm Regards,

Jason Koblovsky

Teksavvy vs Voltage File Sharing Case Back in Court This Week

November 9, 2015 Leave a comment

Teksavvy and Voltage were back in court today exclusively over costs.  As some of you may remember, movie studio Voltage is seeking the identity of ISP Teksavvy users who allegedly shared the movie “The Buyers Club” over peer to peer file sharing networks.  Voltage wants to sue the Teksavvy users over copyright infringement, and Teksavvy was ordered to provide the info of users identified by Voltage sharing their movie.

This case will set a precedent for the telecom industry in Canada on how copyright complaints will be dealt with in the future.  As many of you remember I’ve commented a great deal on this case.  A summery of the policy debate I was a part of regarding this case, and how Teksavvy should have done a lot more to protect it’s customers privacy is here.

In this latest development, it appears that no technical challenge (or any legal challenge) of the evidence is going to be argued by Teksavvy.  Instead “new evidence” is apparently being filed to justify Teksavvy’s costs to take no position in court on the case.  Costs that the court found were excessively high.  IP Lawyer Howard Knopf’s most recent blog on this, is again another must read if you are following the case.  In it Knopf not just criticizes Teksavvy’s legal position but also questions CIPPIC’s role in the case stating:

Although CIPPIC is no longer actively involved on the file, the appeal material was eventually posted here by CIPPIC  late last week and this will be helpful to the public discussion generally and to law students in particular.  It will be recalled that CIPPIC stepped in earlier as an intervener, after Teksavvy took the position that it took no position, and sought adjournments so that CIPPIC could enter the fray. CIPPIC’s role was never entirely clear. It explicitly disclaimed any role in acting for Teksavvy or for the John or Jane Does. It did conduct some cross- examination and referred to the “hearsay” issue – the giant elephant in the room – in its written material in the disclosure motion but did not do so explicitly even once in its oral submissions before Prothonotary Aalto as confirmed by the transcript Teksavvy is trying to file. This may somewhat explain why Prothonotary Aalto’s decision does not once mention the word “hearsay”.

Knopf also went on to say:

According to the transcript of the substantive hearing before Prothonotary Aalto, CIPPIC was apparently more concerned more with broad “public policy” issues than with the more practical question of whether, in light of the BMG decision, there was arguably insufficient substantial, admissible, non-hearsay, and reliable evidence to justify denial of the disclosure motion and thereby stopping the case from even moving forward.

Questions on both Teksavvy and now CIPPIC as to why this case has gone this far when it didn’t have to, and Teksavvy customers privacy assured.

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