In this issue:
1. Firm and Industry News
2. Her Majesty the Queen in Right of Ontario v. Celadon Canada
Inc. (2009 ONCJ 465) CanLII)) [Ontario Court of Justice]
3. The Privatization of Our Prisons: Truth Behind Bars
1. Firm and Industry News
- The firm's annual Maritime & Transportation
Conference will take place on Friday January 15th, 2009.
- The Marine Club will be holding its annual meeting
and dinner at the Royal York Hotel on Friday January 15th, 2009.
2. Her Majesty
the Queen in Right of Ontario v. Celadon Canada Inc. (2009 ONCJ
465) CanLII)) [Ontario Court of Justice]
Celadon Canada Inc. ("Celadon") is an Ontario
based provincially incorporated motor carrier, carrying on an extra-provincial
truck undertaking from its head office and principal terminal location
in Kitchener, Ontario. It operates extensively in the movement of
goods as a common carrier between points in Canada and points in
the United States, between the provinces in Canada, including British
Columbia and Quebec as well as within Ontario.
Certain Ontario Ministry of Transport inspectors laid
charges against Celadon and certain of its drivers under the Ontario Highway Traffic Act and the Ontario Hours of Service Regulations. The charges concerned Section 190(6) of the Ontario Highway Traffic Act which provided that drivers are to maintain
daily logs and have the same on their person while in charge of
a commercial motor vehicle, and under Section 225(5) of the Ontario Hours of Service regulations, Section 27(2) which provides
for the integrity of daily logs. The charges were also based on
Section 225 of the Highway Traffic Act which provides that
a Ministry official or inspectors are authorized to inspect any
records required under the legislation.
The Defendants asserted the following defences:
1. They argued that Celadon is an extra-provincial
undertaking. As such, it is governed under federal legislation
and as such, resort must be made to the federal Motor Transport
Act as opposed to the Ontario Highway Traffic Act and
in turn, the federally constituted Commercial Vehicle Drivers
Hours of Service Regulation. As such, it was asserted that
Celadon is not subject to the Ontario Hours of Service and related provincial regulation and it should take any benefit
from the sole application of the federal regime. Citing the Canadian
constitutional "paramountcy" doctrine, Celadon asserted
that federal law takes priority over the application of Ontario
law to the extent that the former deals with hours of service.
2. It was a necessary ingredient of this defence
that, accounting for the fact that Ontario "inspectors"
are delegated certain authority for the purpose of enforcing federal
regulations, that to the extent that there are differences between
the federal and Ontario regulations, that the authority of the
inspectors should be limited to applying provincial law to all
local (i.e. from points in Ontario to points elsewhere in Ontario)
undertakings and federal regulations to all extra-provincial undertakings.
3. Celadon also asserted an argument that the record-keeping
and the inspection powers under the aforementioned Ontario regime
constituted "unreasonable search and seizure" contrary
to the Canadian Charter of Rights and Freedoms".
In reply the "Crown" acknowledged that Celadon
is an inter-provincial and international trucking company, but asserted
that the Ontario Hours of Service regulations are valid provincial
legislation relating to highway safety, and are on that basis constitutional
applicable to inter-provincial carriers. The Crown submitted that
in order to make the provincial Hours of Service regulations
effective that measures to monitor compliance are needed such as
record-keeping and audits by inspectors pursuant to powers granted
under the statutory sections cited above.
The charges stemmed from the inspectors having requested
from Celadon GPS records so as to show the location or position
of vehicles and drivers which Celadon had refused to produce on
the basis of jurisdiction.
The Crown argued that the impugned provisions are
valid provincial legislation enacted pursuant to the provinces'
exclusive legislative jurisdiction in respect of highway traffic,
for the purpose of safety of highway users. The Crown cited appellate
court jurisprudence which has consistently held that there is no
vital or essential federal interest that would justify holding transportation
undertakings immune from the rules of the road or legislation dealing
with the safety in the transportation industry that is provincially
enacted pursuant to the Canadian constitution. The Crown also cited
case law that where there is no conflict between federal and provincial
enactments and no inconsistency, that the "paramountcy"
rule would apply. (i.e. such rule holding that where there is an
inconsistency between overlapping provincial and federal legislation,
then the provincial legislation is then considered inoperative to
the extent of the inconsistency). Rather, the Crown asserted that
in this case the provincial law simply adds requirements that supplement
the requirements of the federal law, it then being possible for
Celadon to comply with both laws by complying with the stricter
of the two, with the laws applying concurrently.
The court was in agreement with the Crown proposition
that where provincial law adds requirements that supplement the
requirements of the federal law, it will be possible to comply with
both laws by complying with the stricter of the two. Simultaneous
compliance with both enactments was clearly possible in this case.
There being no conflict in operation between the federal and provincial
law, the provincial enactment not frustrating the federal government's
purpose, the court refused to find that there was any conflict between
the regimes because of a "trivial difference in the supporting
documents" as had been asserted by Celadon.
Accordingly the court ruled, that the aforementioned
provisions of the Ontario Highway Traffic Act, and of the Hours of Service Regulations of Ontario are constitutionally
enacted and that Celadon and its drivers were bound by the same
in respect of their use of the highways and moreover that they are
not merely subject to the exclusive jurisdiction of federal laws
because of the inter-provincial nature of their business.
Finally, the court found that the recordkeeping and
inspection powers as aforesaid under the Ontario Highway Traffic
Act, and the Ontario Hours of Service regulation were not unreasonable
searches and seizures contrary to the Canadian Charter of Rights
3. The Privatization of Our Prisons: Truth Behind Bars
The privatization of the prison industry gives rise
to the concept known as the "Industrial Prison Complex",
the idea that profit drives the growth of the prison industry. This
concept is rampant in the United States but Canada could be next.
An example of this idea can be demonstrated by the Government outsourcing
its management and control of the prison system to private corporations
which may build, operate and run facilities for the Government in
a more efficient manner than what would otherwise be possible. The
prison industry is becoming one of the fastest growing industries
in the United States.
In the United States, which boasts the highest prisoner
incarceration rate in the world, there are several corporations
including Correctional Corporation of America (CCA), amongst others
which see opportunity in steadily growing incarceration rates, and
overcrowding prisons leading to what has become a billion dollar
a year industry in the United States alone. These companies build,
manage and provide services to the prison industry such as healthcare,
food, psychiatric, design, and secure transportation services to
name but a few.
CCA alone privately owns 44 facilities across the
United States providing services for 86,821 prisoners. It's no surprise
its stock value soared nearly 32% in the last year despite the economic
downturn. President Obama has allocated $53.4 million dollars to
pay for 1000 new contract beds in 2010, and $5.4 billion dollars
has been allocated for Immigration and Customs Enforcement, a branch
of the United State's Homeland Security which just recently opened
bids for the construction of a detention facility for men to house
When inmates are transferred from an overcrowded public
prison to a private prison, they are said to be "imported".
The fee paid to the private prison for this importation will range
between $2.50-$5.50 per day.
Other ways for the private sector to take advantage
of bursting prison populations are through contracting services
with prisons. Many well known corporations such as Microsoft, Boeing,
Revlon, Dell and Victoria's Secret (which aint so secret anymore)
take advantage of low cost inmate labour, which allows for exploitation
of a workforce without having to pay a nickel for overtime, or unemployment
insurance, and in many cases even escape with paying well below
Low cost prison labour provides "Domestic Sweatshops"
for those inmates involved, while drastically reducing costs and
maximizing profits for the corporate actors at play. Many products
and services manufactured and sold in this manner includes military
equipment, paint brushes, airplane parts as well as telemarketing
and guide-dog training services.
One concern expressed with the privatization of prisons
relates to quality of service that could be provided compared to
what the Government could provide. One view is that the Government
would be better equipped than the private sector at managing prisons
because it will act in the best interest of the public and run prisons
to promote the cardinal goals of incarceration: offender rehabilitation;
punishment; and public safety. On the other hand, the private sector
would arguably put profit ahead of quality and be unable to prioritize
the cardinal goals of incarceration with profit.
Others argue that Government run prisons lack the incentive to do
things better, and that by offloading such responsibilities to the
private sector, the Government could minimize its legal exposure
to lawsuits and costly liability insurance premiums that act as
another Government disincentive.
Upon a review of the privatization of the criminal
justice system, one can see the many stakeholders at play. These
stakeholders range from inmates, to the public as a whole to private
corporate interests all of which play a role in how our criminal
justice system is shaped. It would be naive for me to deny the fact
that much of what the Government decides is a result of private
sector lobbyists advocating for the interests of the wealthy private
enterprises. Criminal laws are no exception.
Despite the Government's rhetoric that "tough
on crime" laws are being made to promote "public safety",
the truth behind many laws are simply to continue to bulk up the
prison populations to stimulate economic growth and appease corporate
players. The imposition of mandatory minimum sentences in Canada
and elsewhere, and the "three strikes rule" in the U.S.,
is further proof that violent offences are not a prerequisite for
doing hard time. Caging people for life for stealing a slice of
pizza, serves nobody but the corporations who profit from the long-term
stay. The Government using media as a platform to play into the
fear of the citizenry to support the incarceration of "Criminal
Aliens" or "Terrorists" is exactly the message they
want you to believe.
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