Teresa Scassa - Blog

A recent Alberta Provincial Court decision raised interesting issues about access to law in the internet and open government era. The case involved a prosecution for alleged violations of the Safety Codes Act for non-compliance with the Alberta Fire Code (AFC). The accused, Mr. Khan, was ultimately acquitted of all counts – the alleged breaches of the AFC were related to either an improper conversion of his property into a rooming house or the improper addition of a secondary suite. The court ultimately found that it had not been established that he had done either of these things.

The access to law issues arose because Mr. Khan, in his defence, raised a number of arguments regarding the relative inaccessibility of the Alberta Fire Code (AFC), and thus his inability to know what rules applied to his actions. In particular, he argued that the AFC was insufficiently published and distributed such that it would be a violation of section 7 of the Canadian Charter of Rights and Freedoms to find people bound by its provisions. He also argued that the defence of “Invincible Mistake of Law” applied to him since the AFC cannot be sufficiently known or followed because of the defects in its publication.

The Alberta Fire Code is one of those sets of rules that occupy a rather odd conceptual space. It sets out binding rules that must be followed, but it is not a provincial regulation enacted by the sitting government and published through the normal channels. Instead, it is a code that is developed by (in this case) the National Research Council, through the participation of volunteer experts from relevant stakeholder groups that include government, industry and the public. Codes developed by the NRC (which include the Fire Code, the Building Code, the Plumbing Code and the Enercy Code) are then adopted by provincial and territorial governments. For example, in Alberta, it is the Fire Code Regulation under the Safety Codes Act that adopts the AFC and declares it to be in force in the province.

In the good old analog days, the difference in accessibility between laws, regulations, and codes like the AFC would have been much harder to spot. Anyone wanting to know what the Safety Codes Act or the Fire Code Regulation provided would have had to get themselves to a library that carried legal texts. They would likely have also found a copy of the AFC at the same library. Alternatively, they could have paid the Queen’s Printer for print copies of the statute and the regulation. The provincial department of municipal affairs would have been happy as well to sell them a copy of the AFC. As far as access goes, it was not wildly convenient – but there were both free and for-fee options, each requiring varying levels of effort.

By contrast, today anyone seeking a copy of a law or regulation can find these quickly, for free, and from anywhere they have internet access, either by visiting the website for the relevant legislature or by visiting the one-stop public resource that is CanLII. Mr. Khan’s arguments were all based around the fact that while the Safety Codes Act and the Fire Code Regulations are publicly available online and for free, the AFC is not. The AFC is still only available for free through a visit to a public library that has one in its collection (not all do). Alternatively, one can purchase a hard copy for $220, or pay for access through an online subscription (with a minimum fee of $40 for 10 days of access). The issue raised by Mr. Khan, therefore, was whether this type of access is good enough in the digital and open government era.

Judge Robertson acknowledged that “accessibility is a basic requirement of the law and forms an important fundamental of a justice system within a free and democratic society.”(at para 48) However, he found that the manner of publication of the AFC did not offend the principles of fundamental justice. He noted that the Safety Codes Act and Alberta Fire Regulation are widely available free of charge, and provide public notice of the application of the AFC. The AFC itself is available either through public libraries or by paying for access. He rejected the argument that the fees for access violated the Charter, noting that the fees charged were “diverted back to the continued maintenance and updating of the AFC, from which all citizens benefit.” (at para 64) Judge Robertson also noted that no evidence had been led to show that the cost of access would be prohibitive to “a significant percentage of homeowners” (at para 70). Further, he noted that “by the very nature of what it controls, the Fire Code is concerned with those who own capital in the form of real property. These individuals are sufficiently well-off to contemplate renovation of that property. Moreover, the purpose of such renovation would be to gain additional revenue from the use of the property as a multi dwelling unit or rooming house.”(at para 72) He found that in such circumstances, the modest cost of purchasing access to the AFC was unlikely to cause hardship.

Taking into account the fact that charges would only arise where there is non-compliance with the AFC, Judge Robertson also showed little sympathy for any defendant who had not gone through the permitting and inspection process required for renovations and who then argued that the AFC was not freely available. He noted that “Speaking generally, an individual cannot complain about the illegitimacy of secret state laws, regulations and Safety Codes, while at the same time, trying to hide unauthorized renovations or increased use of a property from the state.” (at para 75)

Perhaps most importantly from an open government perspective, Judge Robertson rejected the existence of any legal principle or case law mandating the state to “provide hard copy documents of its laws to all citizens absolutely free of charge.” (at para 76). He noted that obtaining hard copies of laws has always come with a fee; nothing has changed in this regard, even where there is also a free online alternative. As a result, there was no violation of s. 7 of the Charter.

Finally, Judge Robertson ruled that the defence of invincible mistake of law was not available. He noted that the AFC was not a secret document, was available to the public in different ways, and could be accessed both for free at some public libraries as well as at reasonable cost from the government. He noted that both the public permit system and a free inspection service provided by the Calgary Fire Department supported citizens in complying with the provisions of the Code.

Essentially, Judge Robertson finds that the current situation falls within what is constitutionally acceptable for access to laws. This does not mean, however, that accessibility could not or should not be improved. The discussion of the accessibility of the AFC and the fees charged for access was framed by a consideration of the laborious process for drafting and regularly updating safety codes such as the AFC through complex multi-stakeholder processes. While it is understandable that cost-recovery might be an objective of the publication arrangements, and while it is arguable the main market for the AFC will be those engaged in business and thus well-placed to pay the fees, the open government movement has generally pushed back against cost-recovery for data and documents regardless of the time and resources needed to prepare and publish them. Cost-recovery is only one policy factor to consider in a debate or discussion about openness. Other considerations, such as transparency and accessibility could outweigh its importance.

Judge Robertson also noted that the process of co-creation leaves copyright in the AFC shared between the federal and provincial Crowns. This means that the agreement of both levels of government is necessary for the publication and dissemination of the AFC. In other words, the decision to make such a document freely and openly available online is more complicated than it would be if only a single level of government is involved. It is worth noting that the often problematic role played by Crown copyright is the subject of a recent petition by Amanda Wakaruk, who advocates for a reform of Crown copyright when it comes to the publication of government documents. Wakaruk’s petition calls for government documents to be free of copyright restrictions once they are made public.

 

On April 13, 2017 the Federal Government introduced Bill C-45, which will, if passed, legalize the sale and possession of cannabis in Canada. The law will not simply remove criminal sanctions; it will provide a carefully limited framework for the sale and consumption of cannabis. In light of Bill S-5, also before Parliament, and which will introduce plain-packaging rules for tobacco products, it is worth considering the marketing framework for cannabis. It should be remembered…