We hosted the Libertarian Party of Canada's Leader, Tim Moen, for a chat about federalism and the Charter. Shot on location in a study room in the John A. Weir Memorial Law Library at the University of Alberta.
We hosted the Libertarian Party of Canada's Leader, Tim Moen, for a chat about federalism and the Charter. Shot on location in a study room in the John A. Weir Memorial Law Library at the University of Alberta.
This week, we examine some of the political parties in Canada. We start with the governing party, the Liberal Party of Canada, and its new internal constitution. Check back each day as we feature the Rhino Party, the NDP, the Libertarian Party, and the Conservative Party.
Coincidentally, as we recognize the 150th anniversary of Canada’s first constitution, the BNA Act, the leader of the Liberal Party is the son of the Prime Minister who patriated Canada’s new constitution in 1982. A constitution provides structure and guidance to lawmakers; it is their ultimate rulebook when drafting new laws and managing existing ones. Similarly, each political party also has a constitution to set out the parameters of its internal governance along with bylaw documents, similar to bylaws that corporate entities establish.
In 2016, the Liberal Party of Canada revamped their constitution, voted it in on May 28th, and put it into effect on January 1st, 2017. The goal was to make membership in the party more accessible to a larger number of people and to create a permanent political campaign. Among the changes are waiving the $10 member registration fee, increased participation in the policy development process, and allowing any registered Liberal member to attend conventions. This marks the first time that a major federal political party has offered free membership.
The new 17-page constitution with its 10 bylaws replaces the previous 81-page document. It streamlines the party’s bureaucracy, allowing readers to understand the party’s organization and increasing flexibility for individuals to participate in the political process. The constitution’s preamble states that the Liberal Party “strives to provide a flexible and democratic structure whereby all Canadians can obtain [information and participate in] action both electoral and non-electoral.” The goal is to reach and include more individuals who will support the party in future elections.
The constitution was met with strong opposition. Despite its commitment to transparency and increased democracy, critics warned that the grassroots accessibility was not as promising as had been advertised. Some local party officials and regional members criticized the lack of openness, transparency, and consultation. They alleged that the executive was trying to “strong-arm” it into effect. The party leader and top executives appeared to have expanded their concentrated power over campaigns and policy. Critics argued this was a:
potentially controversial change that would discontinue the historic tradition of developing party policy positions for election campaigns through national convention debate and votes on resolutions from grassroots party members across the country.
To alleviate these concerns the executive amended the constitution just hours before the vote and Trudeau addressed directly and publicly the allegations of increased centralized power. The amendments and Trudeau’s speech to increase support were successful. Ultimately, the convention delegates voted strongly in favour: 1,988 to 66.
Although there was much opposition to this new constitution, members clearly saw the need for a complete overhaul. Criticism has been subdued but it is possible that it might arise again as the party moves forward under the new constitution. Having suffered election setbacks in the last few elections, the new governing structure might aid the Liberal Party in future elections.
 Liberal Party of Canada, “Towards a More Open Liberal Party” (2017), online: Federal Liberal Agency of Canada <https://www.liberal.ca/1party/towards-a-more-open-liberal-party/>.
 Lee Berthiaume, “A Leaner Liberal Machine: Trudeau Convinces Party Members to Sign off on New Constitution,” National Post (28 May 2016), online: Canada.com <news.nationalpost.com/news/canada/canadian-politics/trudeau-ready-to-take-the-stage-at-liberal-convention-where-members-have-concerns-about-new-constitution>.
 Ken Hanly, “Canadian Federal Liberal Party Adopts New Constitution,” Digital Journal (29 May 2016), online: digitaljournal.com <www.digitaljournal.com/news/politics/canadian-federal-liberal-party-adopts-new-constitution/article/466581>.
 Tim Naumetz, “Justin Trudeau, Party Brass Set to Gain More Power over Campaigns, Policy Under New Proposed Liberal Constitution,” Hill Times (15 April 2016), online: Hill Times Publishing <https://www.hilltimes.com/2016/04/15/justin-trudeau-party-brass-set-to-gain-more-power-over-campaigns-policy-under-new-proposed-liberal-constitution/58608#>.
 Hanly, supra note 3.
 Naumetz, supra note 4.
 Berthiaume, supra note 2.
Posted by The BNA Act 1867 on March 27, 2017 at 08:00 AM in Blog News and Stuff, Constitutional Law, Corporate Law, Current Affairs, Economic Policies, Education, General Interest, History, Law in General, Law School and Students Issues, Lawyers, Politics, Rule of Law, Scholarship | Permalink | Comments (0)
On stardate 42523.7 (October 26th, 2364 for those of us in the 21st century), the crew of the USS Enterprise-D, under the command of Captain Jean-Luc Picard (Sir Patrick Stewart1 at his finest), pulled into Starbase 173 for what was presumably a routine stop. For one member of Picard's crew, this visit resulted in a fight for his life and autonomy, but not against an enemy of Starfleet. This battle was to be fought against an overzealous officer from within their own ranks.
Great science fiction prompts us to imagine a world different from our own, to explore questions of ethics, morality, and even law. Cue episode 9 of season 2 of Star Trek: The Next Generation, entitled “The Measure of a Man”.2
This particular episode focuses on Lieutenant Commander Data (brilliantly portrayed by Brent Spiner3), the first and only android to serve with Starfleet. Upon their arrival to Starbase 173, we are introduced to Commander Bruce Maddox, a brilliant but overconfident science officer who wishes to dismantle Data in an effort to study and eventually replicate him. Though Data lacks the capacity for emotion, he is able to form and express preferences. With this in mind, he refuses to submit to the procedure. Data subsequently resigns his commission in Starfleet when it appears to be the only way to halt the procedure.
The episode then transforms into a legal drama. Captain Phillipa Louvois, a legal officer, convenes a hearing over the issue. Commander Maddox takes the position that Data is property of Starfleet and therefore cannot resign. Capt. Picard is assigned to represent Data, while the case is “prosecuted” by Commander William Riker, Picard's First Officer and Data's good friend.
Riker elicits evidence that Data is merely a machine. He is also successful in having facts read into the record. Specifically, that Data was created by a cyberneticist, that his positronic brain has an impressive processing speed that is unmatched by any other known life form, that he has superhuman strength, and that he can have his hand removed and be turned off without permanent harm.
Picard begins his arguments by wisely conceding that Data is a machine, but follows up by claiming that human beings are also “machines” of a sort, and that this is largely irrelevant. The matter at hand is whether or not Data is sentient. While questioning Maddox, Picard asks him what would be required to meet a minimum threshold for sentience. Maddox responds, “Intelligence, self-awareness, consciousness.” He effectively assists the court in formulating a legal test by which to assess Data's claim that his is sentient, and therefore unable to be held to be property.
Maddox quickly concedes that Data is intelligent, and Picard makes a fairly easy case for self-awareness as well. On the point of consciousness, Picard does not necessarily argue that Data is conscious, but that “consciousness” is a criterion that is exceedingly difficult to test. He proposes that if Data can meet even the lowest standard of consciousness, he must be sentient.
In his closing, Picard states that someone will eventually succeed in replicating Data. It is the court’s decision in this matter that will determine how humanity and this new race of artificial life forms will interact. He effectively asks the court to look at policy considerations regarding “the boundaries of personal liberty and freedom”, finally asking, “Are you prepared to condemn him and all who come after him to servitude and slavery?”
Needless to say, Picard wins the day and Data wins his autonomy. Acting as judge, Louvois concludes that she doesn't really know what Data is, but that he should have the freedom to explore these things for himself.
Most television shows that focus on law make some legal errors, and this episode is no exception. Picard's calling of a “hostile witness”, his questioning of Data while Maddox is giving evidence, and the court referring to Riker as the “prosecution” despite Data not being accused of any crime are three examples that come to mind. Much of this is excusable, as it allows for a complex legal issue to be resolved in 45 minutes of screen time.
Having said that, “The Measure of a Man” was accurate in a couple of important aspects. After the parties agreed to a test for sentience, they were both correct in arguing for how it should be applied. As is often the case in law, policy considerations were a major deciding factor. Picard's argument that ruling Data as property would open the floodgates for future enslavement of similar beings was enough for the court to view sentience with the broadest application possible, basically erring on the side of autonomy over the potential for slavery.
Even for those who might not have an affinity for science fiction, “The Measure of a Man” is worth a watch for it's value as a legal drama.
1 online: Twitter <twitter.com/SirPatStew>.
2 “The Measure of a Man”, Star Trek: The Next Generation (Hollywood, Cal: Paramount Domestic Television, 1989).
3 online: Twitter <twitter.com/BrentSpiner>.
Posted by The BNA Act 1867 on March 24, 2017 at 08:00 AM in Courts & Judiciary, General Interest, Human Rights, Judges, Law in General, Law School and Students Issues, Leviathan & Regulatory State, Movies & Pop Culture, Pop Culture, Property Law, Rule of Law, Television, Travel | Permalink | Comments (0)
“Prejudice, a dirty word, and faith, a clean one, have something in common: they both begin where reason ends.”
Today’s post explores a fundamental principle of Canada’s criminal justice system: every person on trial must be presumed innocent until proven guilty beyond a reasonable doubt. This determination must be “logically connected to the evidence” and not based on “sympathy or prejudice.” For this reason, the defendant in a criminal trial is afforded additional rights to protect her innocence—unless and until the Crown prosecutor convinces a judge or jury beyond a reasonable doubt that enough evidence justifies a guilty verdict.
This is contrasted with the civil justice system. In civil court both parties’ rights are considered equally and the result is weighed on a balance of probabilities. In the criminal system the scales of justice are adjusted to reflect the state’s relative power to impose criminal sanction and the individual’s risk of loss of liberty and the stigma associated with a criminal conviction. The bottom line is that our society values the individual’s freedom so highly that it is better to let a guilty person free than to incarcerate an innocent person.
In Harper Lee’s book To Kill a Mockingbird, lawyer Atticus Finch defends the wrongfully accused Tom Robinson. Mr. Robinson’s guilt is predetermined by the townsfolk and Mr. Finch faces an uphill battle to persuade the jury of his innocence. Before trial, Mr. Robinson’s reputation is already muddied.
In high profile criminal cases, the court of public opinion can injure the defendant’s reputation before guilt is decided. Recently in Alberta, Travis Vader was found guilty of manslaughter. The judge found that the evidence did not support a first-degree murder conviction but it did meet the lower threshold of a manslaughter conviction. In Ontario, Jian Ghomeshi was found not guilty of sexual assault. The evidence against the accused was not reliable enough to support a conviction.
Even before their days in court, both accused were unofficially tried in the court of public opinion and, like wildfire, guilty verdicts spread across social media. When someone is tried for a crime and found not guilty, ideally her life should return to normal, having been acquitted of a crime. This is usually true. Although our courts are almost always open to the public, most trials come and go without much public attention.
However, when a highly profiled case is before the courts, the accused is tried by thousands of opinions—most of which are not framed in an understanding of criminal law. Trial-by-social-media multiplies the impact on the reputation of the person facing trial. Publicizing the accused’s name and face changes her life forever. An accused person who is acquitted will never be truly innocent in the public’s eye when there is a highly publicized case, and a convicted accused in such cases carries the social burden heavier than does a non-publicized accused.
The lesson from To Kill a Mockingbird is in Atticus Finch’s influence on his children and, therefore, on the reader. Logic and equality is better than prejudice and bias. Even those accused of the worst crimes deserve “to get a square deal [in the] courtroom.”
 Harper Lee, Go Set a Watchman (US: HarperCollins, 2015).
 R v Lifchus,  3 SCR 320, 150 DLR (4th) 733, at para 36.
 Harper Lee, To Kill a Mockingbird (Philadelphia: Lippincott, 1960) [Mockingbird].
 R v Vader, 2016 ABQB 625, 2016 CarswellAlta 2163.
 R v Ghomeshi, 2016 ONCJ 155, 2016 CarswellOnt 4246.
 Mockingbird, supra note 3.
Posted by The BNA Act 1867 on March 23, 2017 at 08:00 AM in American Law, Blog News and Stuff, Civil Procedure, Constitutional Law, Courts & Judiciary, Criminal Law & Procedure, Current Affairs, Education, Evidence, Film, General Interest, History, Human Rights, Judges, Law in General, Law School and Students Issues, Lawyers, Legal History, Literature, Movies & Pop Culture, Politics, Pop Culture, Rule of Law | Permalink | Comments (0)
Separate from muggles (non-magical people), witches and wizards live their lives in secret. Hiding their magic from the non-wizarding community, they formed an entire world with schools, government agencies, and policing forces. Their existence is unknown to muggles as their government enacts laws to keep their identities and use of magic a secret.
Witches and Wizards live peacefully alongside No-Majs (Canadian and American muggles), attending the Calgary Stampede every summer, and skiing in the Rockies during the winter.
Similar to No-Maj Canada, serious offenders in the wizarding world are sent to prison. Across the pond in Britain, the guards of the magical prison, Azkaban, were Dementors (until the fall of Lord Voldemort, when they were replaced by specially trained wizards).
This begs the question: Could Dementors be validly employed as guards of Canadian wizarding prisons?
(For the purpose of this article I assume that all laws enacted in Britain for the wizarding population apply in Canada.)
Dementors have been called the scariest magical creature.1 They feed on hope, happiness, and peace. They also “suck every good feeling, every happy memory” out of their victims. Many prisoners died in Azkaban, or turned insane from the Dementors.
The conditions at Azkaban were declared inhumane from the presence of Dementors, and would arguably breach s. 12 of the Charter: the right not to be subject to cruel and unusual punishment.2
In Canadian jurisprudence, cruel and unusual punishment is defined in R v Smith as “so excessive as to outrage standards of decency”, or “grossly disproportionate to what would have been appropriate.”3 The Court in Smith and later cases, provide guides to measure whether the punishment was proportional. Some of these include the the person’s characteristics, the seriousness of the crime, the objectives of the punishment, and how the individual would be impacted.4
Importantly, Canadian courts have made note that the test for a cruel and unusual punishment is deferential to the government and a finding of cruel and unusual should be rare.5
In Azkaban, all prisoners regardless of the crime are subject to the Dementors and their effects. This in-and-of-itself indicates that proportionality is an issue; the seriousness of the crime is not considered at all when prisoners are sent to Azkaban as they are subject to the same Dementor interaction.
In addition, the use of Dementors as prison guards could be deemed a form of psychological torture. Canada’s Criminal Code defines torture as “any act or omission by which severe suffering, whether mental or physical, is intentionally inflicted on a person”.6 Dementors purposefully breed on pain and suffering, driving prisoners to insanity and overwhelming them with their darkest, saddest memories. That most definitely constitutes a form of torture under the Criminal Code.
Torture is illegal in Canada under the Criminal Code, but is also declared cruel and unusual under s. 12 of the Charter. For these reasons and with acknowledgement of deferential judgments, I can conclude that the use of Dementors at Azkaban breaches prisoners s. 12 Charter rights to be free from cruel and unusual punishments.
However, Ministry action that breach Charter rights may be saved under s. 1, a justified infringement. The Ministry of Magic in Britain allowed Dementors to remain as the guards to Azkaban for hundreds of years for a number of policy reasons that must be acknowledged.
First, Dementors must feed on souls. By confining the creatures to the Island on which Azkaban is situated, it keeps them in a controlled area by allowing them to feed on prisoners’ souls. If Dementors were kicked off the Island, many fear that they would head for the cities to find souls to feed on, jeopardizing the souls of innocent witches and wizards.7
Second, they are incredibly effective prison guards.8 Prior to Azkaban’s existence, convicted witches and wizards would be sent to smaller prisons around Britain. Breakouts were common and the magical community feared breaching the International Statute of Secrecy when prisoners escaped and made a ruckus. Since Azkaban was built, only two prisoners have escaped.
Third, Aurors (the specially trained wizards who now guard Azkaban) are an elite group of specially trained witches and wizards. They are the crème-de-la-crème of the wizarding world, and serve to protect. However, their use as prison guards at Azkaban is arguably a waste of resources. These magical people are specially trained to catch witches and wizards practicing in the Dark Arts. They are not trained in prison control or magic outside of the Dark Arts.
However, Dementors have declared their allegiance to Lord Voldemort; they allowed two mass breakouts of Death Eaters in support of He Who Shall Not Be Named. Though he is dead and gone, it is possible that another powerful evil wizard will come along and gain their support.
All this to say, it is not likely that the use of Dementors at Azkaban could be a justified infringement under the Charter given the policy factors discussed above.
Though I cannot in good conscience propose an alternative, Mr. Shacklebolt has agreed to listen to proposals from readers. He is expected to make the trip to Ottawa next week where he is taking appointments.
1J.K. Rowling, “Why Dementors are the scariest magical creatures”, Pottermore (blog), online: <https://www.pottermore.com/features/why-dementors-are-the-scariest-magical-creatures>.
2Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c 11, s 12.
3R v Smith,  1 SCR 1045.
4Smith, supra note 3; R v Goltz,  3 SCR 485; R v Morrisey, 2000 SCC 39,  2 SCR 90.
5Steele v Mountain Institution,  2 SCR 1385.
6Criminal Code, RSC 1985, c C-46, s 269.1(2).
7J.K. Rowling, “Azkaban”, Pottermore (blog), online: <https://www.pottermore.com/features/why-dementors-are-the-scariest-magical-creatures>.
Posted by The BNA Act 1867 on March 22, 2017 at 08:00 AM in Animal Law, Books, Constitutional Law, Courts & Judiciary, Current Affairs, Economic Policies, Education, Film, Food and Drink, General Interest, History, Human Rights, International Law, Law in General, Law School and Students Issues, Lawyers, Legal History, Literature, Movies & Pop Culture, Politics, Pop Culture, Rule of Law, Television | Permalink | Comments (2)
As law students, many of us have that one legal television show or movie that inspired us to become a future lawyer. For the criminal law enthusiasts, maybe it was an episode of Law and Order that stood out. You would witness the New York City Police chase suspected criminals through dramatic and sometimes horrific investigations, then watch them hand over their work to Manhattan District Attorneys to duke it out in court.
For the future corporate lawyers, maybe it was Harvey Specter’s impeccable looks, stylish office, and fantastic style that makes the corporate lifestyle so attractive. I know I have personally watched my fair share of Suits. For others, maybe it was Elle Woods and her quirky route to becoming a Harvard Law graduate, all while mastering the “bend and snap,” that convinced you this degree was something you should and could pursue.
There is a plethora of legal comedies, dramas, and cinematic portrayals, one that has always stood out to me is A Few Good Men. I can still remember the first time I watched a young Tom Cruise losing his cool in court, trying to force Jack Nicholson to admit that he in fact ordered the “Code Red” that killed a Marine Private. Watching the heated exchange followed by Nicholson’s famous line “you can’t handle the truth,” was so exciting and intense all at the same time. Watching this, I knew that I wanted a career filled with that type of intensity and adrenaline rush.
A Few Good Men may have been the movie that inspired me to become a lawyer, but my career will be strikingly different than that of the young Tom Cruise’s character. In the film, Cruise plays Lieutenant Daniel Kaffee, a United States Navy lawyer tasked with defending two US Marines accused of murdering their fellow Private. In the film, Kaffee’s clients maintain they were just following orders when they violently disciplined the deceased. The entire investigation is run through military law practices, and ends in military court.
In Canada, the military have their own court system separate and unique from the regular criminal justice system. So what would military court be like for Daniel Kaffee here in Canada?
Similar to the United States, Canada has a parallel and separate military court system. Military justice is administered through the Code of Service Discipline, which is found in Part III of the National Defence Act.1 The Code allows the military to enforce disciplinary standards on members of the Canadian Armed Forces (CAF) to maintain cohesion within military units.2 The Supreme Court of Canada recognizes the need for the parallel military system to enforce disciplinary standards that are higher than what is expected of civilians.3
Similar to the procedure in A Few Good Men, Canada has a tribunal system for military justice. The military system acknowledges that CAF members, who are subject to military discipline under the Code, must be afforded fair, just, and transparent justice.4 To ensure fairness, military tribunals have two tiers. Summary trials deal with minor offences related to military discipline and unit effectiveness.5 These are dealt with quickly so the member can immediately return to duty.6
For more serious offences, courts martial are administered. Courts martial are similar to civil and criminal courts but they have an independent military judge overseeing the formal process.7 Canada has two forms of court martial, General and Standing. A General Court Martial is similar to a criminal jury trial. This process includes a military judge and five randomly selected CAF members.8 The judge acts as the trier of law, deciding the formal sentence, and the CAF members are the triers of fact determining a verdict.9 This is the type of formal process depicted in A Few Good Men. In contrast, a Standing Court Martial is similar to a judge-alone criminal trial where the military judge wears both hats.10
The military court system is imperative to the CAF’s function. The specialized system allows the military to maintain discipline and integrity needed to carry out the dangerous operations for which they are responsible. Although their formal court processes are similar to the criminal court system, it is necessary that people trained in military operations decide punishment. Civilians cannot accurately judge the discipline and enforcement needed to carry out certain orders and operations.
1 National Defence Act, RSC 1985, c N-5, Part III, ss 66-159.
2 Canada, National Defence and the Canadian Armed Forces, Canada’s Military Justice System, (Ottawa: National Defence Headquarters, 2014), online:
9 Canada, National Defence and the Canadian Armed Forces, Canada’s Court Martial System, (Ottawa: National Defence Headquarters, 2016), online: <www.forces.gc.ca/en/about-reports-pubs-military-law/court-martial-system.page>.
Posted by The BNA Act 1867 on March 21, 2017 at 07:00 AM in American Law, Blog News and Stuff, Civil Procedure, Courts & Judiciary, Criminal Law & Procedure, Current Affairs, Education, Film, General Interest, History, Judges, Law in General, Lawyers, Movies & Pop Culture, Television | Permalink | Comments (0)
This week, The Dominion writers demonstrate their nerdy tendencies by discussing fictional legal scenarios. Check back daily to see if your favourite fictional legal case is featured!
Last year, the blockbuster film Captain America: Civil War featured a plan to force super heroes to register with the government. Comics have used this kind of storyline for decades. But would such a legislative scheme be valid in the real world?
The first attempt to register super heroes in the Marvel Universe was the Mutant Registration Act [MRA] (also called the Mutant Control Act). This was first mentioned in the “Days of Future Past” story, in which genocidal, mutant hunting Sentinels controlled a dark future. After the legislation passed a special government strike team called Freedom Force enforced it. Ironically, Freedom Force was comprised of former super criminals who had tried to assassinate the Senator who first proposed the legislation. There were protests against the legislation and at some point it was either repealed or no longer enforced.
This legislation is unlikely to be enforced in Canada. The Charter of Rights and Freedoms guarantees protection against discrimination based on identifiable characteristics in section 15. The courts have expanded the categories that are protected by the Charter using the concept of “analogous grounds” to include things not originally enumerated, such as sexual orientation. Of course, when the analogous ground includes people with the ability to read minds, control the weather, and shoot force blasts from their eyes, it is possible that a violation could be allowed using the reasonable limits clause in s. 1 of the Charter. These powers can make those who possess them extremely dangerous to others. The argument is that the state has a great responsibility to keep control of those with great power.
The second version of registration was very different. Rather than lumping in everyone with the “X-gene”, with powers ranging from “control over the fabric of reality” all the way down to “covered in extra eyeballs”, the Super Hero Registration Act [SHRA] only registered individuals, no matter the source of their powers, who intended to use them. This included many mutants, but also nuclear accident victims and genius engineers. One mutant hero, Firestar, would have had no choice but to register under the MRA. But under the SHRA she was allowed to retire; choosing to refrain from using her powers. The act was eventually repealed at the request of Captain America.
The SHRA is more likely than the MRA to stand in Canada. In fact, Marvel Universe’s Canada has similar legislation, but it did not cause the problems that it did south of the border. When the dust cleared after Civil War, Iron Man ended up in charge of SHIELD, the agency charged with administering the SHRA. He used his new authority to ensure that heroes were properly trained and spread into teams throughout the United States. This project was called the Fifty States Initiative.
Iron Man and the other experienced heroes were responsible for training the next generation, deciding their qualifications, and, when necessary, policing their actions. The Initiative essentially turned being a super hero into a self-regulating profession, not unlike lawyer self-regulation in the real world. The potential constitutional issues would come not from Charter rights, but rather from the BNA Act itself. Self-regulating professions and other licenses are a provincial responsibility. With that said, in a world with super powers it is likely that courts would allow the federal government to legislate on the matter instead of the provinces. Much like pollution and interprovincial trade, it be a problem too large for the provinces to properly handle.
Comic book writers and filmmakers are not experts in constitutional law. Sometimes, a slow burning sub plot would be a much more dramatic event in the real world. Other times, the summer blockbuster event in the comics would be a completely sensible, not particularly controversial, event in the real world. At least not by constitutional standards.
 Chris Claremont & John Byrne, “Days of Future Past,” Uncanny X-Men 141 (January 1981).
 Chris Claremont & John Romita Jr, “The Spiral Path,” Uncanny X-Men 199 (November 1985).
 Louise Simonson and Walter Simonson, “For All the World to See”, X-Factor 33 (October 1988).
 Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
 Vriend v Alberta,  1 SCR 493, 156 DLR (4th) 385.
 Charter, supra note 4, s 1.
 J Michael Straczynski & Ron Garney, “Mr Parker Goes to Washington pt 1”, Amazing Spider-Man 529 (April 2006).
 Paul Jenkins & Ramon Bachs, “Embedded pt 2,” Civil War Frontline 2 (August 2006).
 Brian Bendis & Olivier Coipel, “Siege of Asgard - The Fallen,” Siege 4 (June 2010).
 Michael Avon Oeming & Scott Kollins, “The Fantastic Four!”, Omega Flight 2 (May 2007).
 Dan Slott & Stefano Caselli, “Happy Accidents,” Avengers: The Initiative 1 (June 2007).
 Legal Profession Act, RSA 2000, c L-8.
 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(9), reprinted in RSC 1985, Appendix II, No 5.
 R v Crown Zellerbach Canada Ltd,  1 SCR 401, 49 DLR (4th) 161.
Posted by The BNA Act 1867 on March 20, 2017 at 08:00 AM in Blog News and Stuff, Books, Constitutional Law, Criminal Law & Procedure, Current Affairs, Film, General Interest, History, Human Rights, Humor, Law in General, Law School and Students Issues, Lawyers, Legal History, Literature, Movies & Pop Culture, Pop Culture, Rule of Law | Permalink | Comments (2)
Our final piece on Indigenous leaders focuses on Mistahimaskwa, a.k.a. “Big Bear”.
Born around 1825 and living until 1888, Big Bear rose to the position of Chief of the Scrub Plains Cree. While his father had held this position before him, it was his skill as a hunter and warrior that ultimately led to his selection as chief at age 40.1
Mistahimaskwa’s accomplishments in war against other tribes and his hunting skills were impressive, but his service to his people politically merits greater recognition.
Mistahimaskwa was heavily involved in the negotiations of Treaty Six, the territory on which the University of Alberta currently stands. Shortly after Confederation, Big Bear entered into talks with the Canadian government with an eye on setting terms for a treaty. He was opposed to living on a reserve as he rightfully believed that this would restrict both his mobility and his ability to hunt freely.2
Unfortunately, the dwindling buffalo population in the mid 1870s forced his hand.3 Starvation loomed and signing a treaty would provide food for people on the reserves, but Mistahimaskwa felt that the Canadian government would violate the terms of the proposed treaty before the ink was dry. He didn't trust the government. He wanted better terms for his people and a stronger guarantee from the Government of Canada. He knew the value of the land of his people and the resources it contained.4 Therefore, he held off on signing and, at one point, took a horse and rode to nearby Cree settlements in an attempt to convince other bands to wait for a stronger position and better deal.
In 1882, Mistahimaskwa finally signed the treaty, believing that he had no choice.5 He did so with great reluctance and felt that the other chiefs had betrayed both him and their people in signing, sensing that the new country being created around them would ultimately be a great detriment to the Cree.6
After Treaty Six came into force, Mistahimaskwa saw the importance of uniting the Cree to gain greater political power in this new arrangement. By June of 1884, his band was more than 500 strong, and were part of the more than 2000 who gathered on the reserve controlled by Pitiwahanapiwiyin (also known as “Poundmaker”, who we wrote about earlier this week). This large scale unification of the Cree was unprecedented.7
Mistahimaskwa is remembered not only for his political prowess, but for his commitment to relying on peaceful means in his dealings with the Canadian government. His wisdom unquestionably avoided bloodshed during times when it seemed like it might have been imminent.
1 Frits Pannekoek, “Mistahimaskwa” in Canadian Encyclopedia (Historica Canada: 2016) online: <www.thecanadianencyclopedia.ca/en/article/big-bear/>.
2 Jean Allard, “Big Bear's Treaty: The road to freedom” (2002) 11 Inroads 110.
3 James Rodger Miller, Big Bear, Mistahimusqua, (Toronto: ECW Press, 1996) at 58.
4 Supra note 2.
5 Neal McLeod, “Rethinking Treaty Six in the Spirit of Mistahi Maskwa (Big Bear)” (1996) 19 Can J Native Studies 70.
6 Michelle Filice, “Treaty 6”in Canadian Encyclopedia (Historica Canada: 2016), online: <www.thecanadianencyclopedia.ca/en/article/treaty-6/>.
7 Supra note 1.
We continue the focus on Indigenous leaders by shifting from leaders during Confederation, to a leader who influenced the signing of the Meech Lake Accord. The Canadian Broadcasting Corporation put out a survey in late 2013 asking Canadians, “Which Canadians have inspired you the most over the last 150 years?”1 Nearly 12,000 individuals responded to the survey. CBC analyzed the data and released a “Top 10 Canadian Heroes List” in June of 2014. Topping the list was former premier Pierre Trudeau.
However, an issue arose over the complete omission of Indigenous Canadians and women from the list.2 The oversight sparked outrage among CBC Aboriginal, who put forth their own survey in response asking, “Who are your Indigenous heroes?”3 The responses gathered through social media, namely Facebook and Twitter, included several prominent Aboriginal heroes. Topping the list though was Elijah Harper, Manitoba’s only Indigenous MLA in 1990. He was paramount to resisting Quebec’s signing of the Meech Lake Accord without First Nations consent.4
Elijah Harper was born March 3, 1949, in Red Sucker Lake, Manitoba.5 He grew up in an Oji-Cree community roughly 700 kilometres north of Winnipeg, but was forcibly removed from his family to be placed in the residential school system.6 Harper studies at the University of Manitoba and became the elected leader of the Red Sucker Lake First Nation at age 29.7 To add to his impressive resume, Elijah Harper became the first Indigenous MLA in Manitoba in 1981.
While serving as a MLA in Manitoba, Elijah Harper was appointed as minister without portfolio for Native Affairs in 1986, and was promoted to Minister of Northern Affairs the following year.8 Although his political career was one of great triumph and recognition, 1990 would be Harper’s most memorable year in office. Harper’s political highlight was his historic efforts in blocking Quebec from singing the Meech Lake Accord without consulting Indigenous people first.
In order for Quebec to officially sign on to the new Constitution Act of 1982, both the federal government and all provinces needed to ratify the Meech Lake Accord.9 Gary Filmon, Manitoba’s premier at this time, required unanimous consent from all MLA’s in order to ratify the Meech Lake Accord.10 Harper and other Indigenous leaders, adamantly opposed the singing of the Accord because it did not guarantee rights to Indigenous individuals.11 Harper refused to consent each time the discussion arose. The ratification deadline passed and he still would not consent, so the Accord was never signed. His refusal and opposition brought attention to issues surrounding both the duty to consult First Nations people and Indigenous rights. Harper spent the remainder of his career working with Indigenous groups to increase support for First Nations rights.
It is unsurprising that Elijah Harper is recognized as an Indigenous hero among his own people, and other groups of Canadians. Shawn Atleo, the National Chief of the Assembly of First Nations, describes Harper’s work as helping to “lay a solid foundation” for Indigenous rights; hard work that continues in Canada today. Harper’s efforts and others following, do not go unnoticed.
1 The Canadian Press, “Top 10 Canadian heroes list includes Pierre Trudeau, Jack Layton”, CBC News (15 June 2014), online: <www.cbc.ca/news/canada/top-10-canadian-heroes-list-includes-pierre-trudeau-jack-layton-1.2676398>.
2 Kim Wheeler, “Top 10 indigenous heroes includes Elijah Harper, Alanis Obomsawin”, CBC News (18 June 2014), online: <www.cbc.ca/news/indigenous/top-10-indigenous-heroes-includes-elijah-harper-alanis-obomsawin-1.2678637>.
5 Tabitha Marshall, “Elijah Harper” in Canadian Encyclopedia (Historica Canada: 2015), online:
8 Gloria Galloway, “Elijah Harper, First Nations leader who brought down Meech Lake, dies at 64”, The Globe and Mail (17 May 2013), online: <www.theglobeandmail.com/news/politics/elijah-harper-first-nations-leader-who-brought-down-meech-lake-dies-at-64/article11988959/>.
This week, we focus on Indigenous leaders in Canada at the time of Confederation. As we get closer to #Canada150 we acknowledge the leaders and trailblazers from 150 years ago that shaped the country in which we live. However, we must acknowledge that Canada’s Confederation did not include important Indigenous leaders.
Indigenous groups were not invited to be a part of the negotiations prior to 1867. They were not consulted and could not provide input or feedback on what how to best form the British North America Act.1 Even those who signed treaties may not have appreciated the future implications. As a result the BNA Act was not a nation-to-nation agreement, but a unilateral declaration that excluded important members of Canadian society.
The BNA Act was intended to be Canada’s founding constitutional document but it discounted the input from a large portion of its own society; a population that inhabited this land before the British and Canadian governments. So therefore we must ask: can this constitutional document legitimately be considered Canada’s founding document? And if not, when did our founders truly come together to constitute Canada?
Over 100 years before the constitution was enacted, the Royal Proclamation was issued. Unlike the BNA Act the proclamation consulted and included many different Indigenous communities and peoples. It is a document that enunciates principles of consent and respect: two important notions that are arguably absent in Aboriginal law today.
The Royal Proclamation recognizes and affirms aboriginal title and rights; forbidding settlers from claiming aboriginal lands until it was bought by the Crown. This provision, among many others, reinforced aboriginal self-determination.2 These principles are technically present in Canadian law; yet Aboriginal peoples must still prove their rights in Canadian courts before they can exercise those rights.3
By the time of Confederation, many Indigenous groups had entered into treaties with European authorities, surrendering their lands in exchange for a variety of benefits (trading rights, reserves, payments, police protection, etc.).4 Confederation sealed their fate and gave the federal government complete control over Canada’s Indigenous peoples and their lands.5
In contrast to this colonial history, the Royal Proclamation not only involved Indigenous peoples, but received ratification from many nations with the Treaty of Niagara shortly after it came into force.6
Historian Rick Hill said with respect to the Treaty of Niagara, “the 1764 Treaty was an important turning point in relationships between the Indigenous Nations that participated as it was a way of renewing their treaty relationship[s] with each other, and refreshing the pledges made with the ancient Dish With One Spoon Treaty whereby the Indigenous Nations agreed to share the bounty provide[d] by the Mother Earth.”7
This optimism from 1764 was short lived. Canada reneged on its promises from 1763 and took up Indigenous lands; tearing people and children away from their traditional homes and preventing them from meaningfully exercising their rights.
It is important that everyone asks, “what are we celebrating with #Canada150?” Shouldn’t we be celebrating an anniversary of which all Canadians should be proud? Perhaps it would be more appropriate to celebrate #Canada254. That way, everyone in Canada, including the original inhabitants of the land, would feel they truly have something to celebrate.
2Anthony J. Hall and Gretchen Albers, The Canadian Encylopedia, (2006) sub verbo “Royal Proclamation of 1763”, online: <www.thecanadianencyclopedia.ca/en/article/royal-proclamation-of-1763/>.
3See: R v Sparrow,  1 SCR 1075, 70 DLR (4th) 385; R v Van Der Peet,  2 SCR 507, R v Sappier; R v Gray, 2006 SCC 54,  2 SCR 686, R v Powley, 2003 SCC 43,  2 SCR 207. These cases affirm the existence of various Aboriginal rights and set out the appropriate tests. These rights, though they may be affirmed, must still be proven before the courts.
4Indigenous and Northern Affairs Canada, “Treaties with Aboriginal people in Canada”, (Ottawa: INAC, 15 September 2010), online: <www.aadnc-aandc.gc.ca/eng/1100100032291/1100100032292>.
5BNA Act, supra note 1, s 91(24).
6Nathan Tidridge, The Queen at the Council Fire: The Treaty of Niagara, Reconciliation and the Dignified Crown in Canada (Toronto: Dundurn Press, 2015).
7Marci Becking, “First Nations Commemorate 250th Treaty of Niagara Anniversary with Two-Day Event”, Anishinabek News (31 July 2014), online: <anishinabeknews.ca/2014/07/31/first-nations-commemorate-250th-treaty-of-niagara-anniversary-with-two-day-event/>.
Posted by The BNA Act 1867 on March 15, 2017 at 08:00 AM in Aboriginal Law, Blog News and Stuff, Books, Constitutional Law, Courts & Judiciary, Current Affairs, Education, Evidence, General Interest, History, Human Rights, Law in General, Law School and Students Issues, Legal History, Rule of Law | Permalink | Comments (0)
Pitikwahanapiwiyin, or Poundmaker in English, was an important Cree leader around the time of Confederation. He resisted Treaty 6 and the reserve system but signed Treaty 6 to follow the will of his people. As chief in the 1880s he attempted to reduce violence during the 1885 Riel Rebellion. Despite his peacemaker role, he was convicted of treason for his involvement in the Rebellion. He died shortly after.
Pitikwahanapiwiyin was born around 1842 near the Battlefords in Saskatchewan. The son of a Stoney chief and a Metis woman, he was raised with his mother’s Cree family in what is now Alberta. In 1873 he was adopted by Isapo-Muxika (known in English as Crowfoot), a Blackfoot chief who lost his own son.1
Pitikwahanapiwiyin was a band headman in 1876 when the Government of Canada negotiated Treaty 6 with Indigenous groups in the central prairies.2 This treaty territory is a long strip across what is now central Alberta and Saskatchewan, including Edmonton. The Numbered Treaties were created after the addition of Rupert’s Land expanded Canada’s territory in 1869. These Treaties were established after 1871 in response to Indigenous appeals. Indigenous communities sought protection from unregulated settlement and the rapid decline of buffalo herds that were central to their livelihood. By 1875 Indigenous resistance had begun to disrupt land surveying projects and threatened telegraph line construction. The Government of Canada reluctantly agreed to negotiate treaties in order to expand and develop land in the west.3
Pitikwahanapiwiyin was an outspoken opponent of Treaty terms. He was particularly offended by the idea of a reserve system. In response to the reserve system he said, “This is our land, it isn’t a piece of pemmican to be cut off and given in little pieces back to us. It is ours and we will take what we want.” At first, Pitikwahanapiwiyin had a lot of support for his views. However, older leaders opposed him, including his uncle Mistawasis. The more experienced leaders acknowledged his concerns, but were more worried about what would happen if they did not sign treaties. The other leaders were convinced and agreed to sign.4
Though Pitikwahanapiwiyin could not prevent the signing of treaties, his dissent helped negotiate better terms for his people than previous treaties. The “famine and pestilence” clause, which promised aid from the Government of Canada in the event of those problems, was a large improvement.5 Pitikwahanapiwiyin eventually signed Treaty 6 despite his personal objections because the majority of his band supported it.6
Pitikwahanapiwiyin was selected as chief shortly after the Treaty was signed. He committed his leadership to negotiating and promoting peace. In the early 1880s reserve living conditions deteriorated in the Prairies. Pitikwahanapiwiyin hosted a Thirst Dance on his reservation in 1884 to discuss improving the situation. Approximately 2000 people attended. A disruption occurred when the North West Mounted Police pursued someone accused of assault on a nearby reserve. Pitikwahanapiwiyin was able to calm the situation and avoid an outbreak of violence.7
Violence erupted on the Plains the following year during the second Riel Rebellion. Pitikwahanapiwiyin intended to use the success that Riel’s followers had had at Duck Lake as leverage in negotiations with government agents. As the situation grew more tense, leadership was given to the soldiers’ lodge rather than the chief. Pitikwahanapiwiyin was able to keep the warriors from pursuing the retreating government troops after their camp was attacked in the Battle of Cutknife Hill, even though he did not have official control of the reserve .8
Pitikwahanapiwiyin was still tried for treason due to his role as leader of his reservation during the Rebellion, despite his continued commitment to reduce violence. He was sentenced to three years in prison but only served one before being released due to ill health. He died while visiting his adoptive father at the Blackfoot reservation in 1886.9
The tragedy of Pitikwahanapiwiyin illustrates the struggle that Indigenous communities face due to the encroachment of settler populations. He saw the danger that the treaties and reserve system posed and tried to mitigate the damage. He was a wise leader and negotiator trapped in an impossible situation.
1The University of Saskatchewan Libraries, “Pitikwahanapiwiyin (Poundmaker)”, The Northwest Resistance: A dabase of materials held by the University of Saskatchewan Libraries and the University Archives, online: <http://library.usask.ca/northwest/background/pound.htm>.
3Michelle Filice, “Treaty 6”, The Canadian Encyclopedia (11 Oct 2016), online: <http://www.thecanadianencyclopedia.ca/en/article/treaty-6/>.
6Supra note 1.
In support of Canada’s commitment to Reconciling its colonial history with Indigenous communities, this week we focus on Indigenous leaders during Confederation. Many Indigenous communities were displaced and disadvantaged as a result of colonialism and Confederation, and their stories are important to the development of Canada. We wrote about one well-known leader, Louis Riel, earlier this semester.
Today we biograph Red Crow, a chief of the Blood (or Kainai) Tribe who was a signatory to Treaty 7 in 1877. But signing Treaty 7 should not be considered his greatest achievement; his commitment was not to Confederation or the government but to his tribe. Treaty 7 seemed to present a promising future for Red Crow’s people.
Red Crow had several descriptive monikers, including Captured the Gun Inside, Lately Gone, and Sitting White Buffalo. He earned his Blood Tribe adult name, Mékaisto, as a warrior against other Indigenous bands and tribes. He was born around 1830 south of present-day Lethbridge, Alberta, and later died on August 28, 1900, in the same region. Red Crow’s band chose him as chief after his uncle and father died of smallpox in 1869. As a strong and respected leader in his community he eventually became the leading chief of several bands, representing the Blood Tribe at the signing of Treaty 7.
Red Crow saw his fair share of violence during his life. His reputation as a warrior began in his youth, and he participated in more than 30 wars and raids against other Indigenous groups and against American settlers. Historian Hugh Dempsey writes that, as an old man, Red Crow asserted that he had never been wounded in battle by a bullet, arrow, axe, spear, or knife.
Unfortunately, alcohol played a factor in the violence Red Crow experienced. Though his tribe traded with American whisky traders at first, the addictive and destructive effects of alcohol ultimately changed his tune. Red Crow worked alongside the North-West Mounted Police to try to end the otherwise convenient trade. Members of his community struggled with alcohol abuse and traded buffalo robes at a fraction of their value. Red Crow killed his own brother “during an alcohol-fuelled argument,” as well as two other Indigenous men who attacked him when they were intoxicated. Even one of his wives was killed as a bystander when an altercation arose between two intoxicated individuals.
According to Dempsey, in his report for Indigenous and Northern Affairs Canada, it is likely that Red Crow did not foresee the negative impacts that signing treaties would have on Indigenous communities. It appears that his decision, and that of other Indigenous leaders, was clouded by the immediate benefits that the new government provided and promised, but he failed to foresee the future of Indigenous struggles as a result of the reserve-land system.
As European communities continued to settle in Alberta, Red Crow realized that his community’s nomadic lifestyle would be a challenge under Confederation. He became a successful farmer and helped support his followers on newly endowed reserve land. As a respected warrior, local politician, and magistrate, Red Crow resolved disputes between the Blood, other tribes, and government agents. His interaction with government agents and, especially, his friendship with Mounted Police Commissioner James Farquharson Macleod spurred his acceptance of Treaty 7.
Red Crow realized that negotiation and treaties were necessary to create a peaceful future with other tribes and with the new Confederation government. However, his acceptance should not be mistaken for subservience or dependence on the government. Red Crow believed that as his community expanded their livelihoods through farming, ranching, and education, they would maintain their independence and pride. He respected modern education and Christianity, but believed in his traditional customs and religion. Unfortunately, living conditions for many rural reserve communities after Red Crow’s death would not have met his expectations.
Red Crow grew from a young, reckless warrior into a peaceful, patient negotiator, continuously demanding better living conditions for his band. His optimism and vision for future generations should serve as an inspiration in 2017 as we recognize #Canada150 and continue to work on #Reconciliation150.
 “Red Crow,” Native Leaders of Canada, New Federation House, online: <www.newfederation.org/Native_Leaders/Bios/Red_Crow.htm> [“Red Crow”].
 Municipal Plans and Bylaws, Oldman River Regional Services Commission, online: <www.orrsc.com/members-page/>. Group Photograph of Nitai’kihtsipimi, M’kaisto, and North Axe, Blackfoot Digital Library, online: <https://www.blackfootdigitallibrary.com/publication/group-photograph-nitaikihtsipimi-mekaisto-and-north-axe>; Hugh A Dempsey, “Mékaisto,” 12 Dictionary of Canadian Biography (1990), University of Toronto/Université Laval, online: biographi.ca <www.biographi.ca/en/bio/mekaisto_12E.html>.
 Dempsey, ibid.
 “Red Crow,” supra note 1.
 Historica Canada, “Red Crow,” Indigenous Peoples Collection, online: thecanadianencyclopedia.ca <www.thecanadianencyclopedia.ca/en/article/red-crow>.
 Dempsey, supra note 3.
 Canada, Indigenous and Northern Affairs Canada, Treaties and Historical Research Centre, “Treaty Research Report – Treaty Seven (1877),” by Hugh A Dempsey (1987), online: INAC <https://www.aadnc-aandc.gc.ca/eng/1100100028789/1100100028791> [INAC].
 Dempsey, supra note 3.
 Ibid; Historica Canada, supra note 7.
 “Red Crow,” supra note 1.
Posted by The BNA Act 1867 on March 13, 2017 at 08:30 AM in Aboriginal Law, American Law, Blog News and Stuff, Constitutional Law, Current Affairs, Economic Policies, Education, General Interest, History, Human Rights, Law in General, Law School and Students Issues, Lawyers, Legal History, Politics, Property Law, Scholarship | Permalink | Comments (0)
In the last year, there were several noteworthy sexual assault cases that gained significant media attention. Last week we met with Ms. Kim Campbell, who revised the sexual assault laws in 1993 when she was Minister of Justice.
Editors' Note: subsequent to filming, Justice Robin Camp has resigned from his position as a federal judge.
Posted by The BNA Act 1867 on March 10, 2017 at 08:00 AM in Constitutional Law, Courts & Judiciary, Criminal Law & Procedure, Current Affairs, Education, Evidence, General Interest, History, Judges, Law in General, Law School and Students Issues, Lawyers, Politics, Rule of Law | Permalink | Comments (0)
We continue access to justice week by discussing race and crime. One of the most controversial topics in the Canadian criminal justice system is whether the system is biased against racial minorities. Studies in Canada show that members of racial minorities view the criminal justice system as biased. Moreover, they view the system more negatively than Caucasian individuals.1 The findings suggest that many minority groups believe that their ability to access justice is lacking, especially with respect to policing and community safety.2
One area where issues of racial profiling and legal injustice arise is with respect to street checks. Street checks, also known as carding, allow police with the power to randomly stop citizens and ask them to provide documentation.3 These individuals are not suspected of a crime necessarily, nor are they formally detained at the time.4 Police use this technique to keep communities safe from crime, or gather information about crime in the area. Problematically, minority groups are often the main targets of these street checks.
Alberta’s carding practices have recently caught the attention of several politicians, lawyers, and minority groups. These parties suggest that Alberta’s carding practices are unconstitutional and specifically target minority racial groups.5 The City of Edmonton alone has received numerous complaints about police street check procedures. The Edmonton Somali community believe police are targeting their communities strictly with racial motivation.6 People within the Somalian community suggest they are continuously being asked for identification and questioned on their activities; but rarely see the same happen for Caucasian individuals in similar areas.
Police checks must target a constitutionally protected right to be unconstitutional. Minority groups would likely challenge street checks using rights enumerated in the Canadian Charter of Rights and Freedoms. Under s. 15 of the Charter people cannot be discriminated against based on race.7 If carding is found to systematically target certain racial groups or discriminate based on race then the practice may be found unconstitutional. However, if it targets individuals of all races equally the practice will align with section 15. Critics believe that the practice does not target all races equally, but disproportionately targets minorities.
In response to carding criticisms, other cities in Canada have revised their street check procedures. The Toronto Police Services Board recently changed their carding practices so that officers cannot collect identification from a minority individual, unless the officers believe they have a connection to a specific person of interest.8 This prohibits officers from asking minority individuals identifying information unless a clear purpose is disclosed. Alberta could implement similar guidelines to help minority individuals feel that they are not being targeted without cause. The ultimate goal of these laws should be to make minorities feel safe and foster trust in police powers to help bridge their perceived lack of access to justice.
1 Scot Wortley, “Hidden Intersections: Research on Race, Crime, and Criminal Justice in Canada” (2003) 35:3 Canadian Ethnic Studies Journal.
3 Andrea Huncar, “Alberta Justice developing street-check guidelines for police”, CBC News (21 November 2016) [Huncar, “Alberta Justice”].
5 Andrea Huncar, “Police carding an ongoing irritant in Edmonton’s Somali community” CBC News (21 October 2016) [Huncar, “Police”].
6 Andrea Huncar, “Critics demand proof non-whites aren’t targeted in Edmonton police stops”, CBC News (28 October 2016) [Huncar, “Critics”].
7 Canadian Charter of Rights and Freedoms, s 15, Part 1 of the Constitution Act, 1892, being Schedule B to the Canada Act 1982 (UK), 1982 c 11.
Today we expand on our Access-to-Justice themed week, with a discussion on Alberta’s court system. Today’s post emphasizes the role that the courts play in helping litigants navigate the legal process once they’ve been introduced to the system. When courts give better access to self-represented litigants, more people can afford to pursue a claim or defend a claim or charge before a judge.
We recently had the opportunity to interview the Honourable Judge Judith Shriar of the Provincial Court of Alberta. She sits in Calgary, as well as in regional areas near the city, on criminal and some civil matters.
Through her time on the bench, Judge Shriar has heard a variety of charges, litigants, and issues, though she noted that she hears a large number of drinking and driving related charges. Judge Shriar observed that men appear in her courtroom more often than women and she sees more younger defendants than older. She made special note that these demographics do not change drastically from urban to rural, or even reserve centres.
In our justice system, there is currently cause for concern for self-represented litigants to represent themselves in court. Judge Shriar noted that courts have implemented programs and resources to help litigants navigate the murky waters of the legal system. The Provincial Court has “done a great job of making tools available online for litigants to access,” Shriar said.
She further recognized that these resources have allowed self-represented litigants to become better equipped to handle their cases in court.
“I do think that people often do a good job on their own. Especially when people are unrepresented you see that people have really thought through their claim… they’re organized.”
However, there are always those who “slip through the cracks.” Sometimes a self-represented litigant faces an uphill battle during a dispute against a litigant with an experienced lawyer. When asked whether the judiciary has a responsibility to ensure that litigants are on equal playing fields, Judge Shriar confirmed that, though her jurisdiction to intervene is limited, she does what is appropriate within her position as an impartial judge to make litigants aware of the resources available to them, and even to step in when necessary to prevent gross injustices.
Another common area of concern is an increasing strain on limited court resources. Judge Shriar agrees that with respect to both manpower and infrastructure, the scarcity of court resources is an issue. In light of this problem Judge Shriar explained how Calgary’s Provincial Court has implemented programming to combat and mitigate the effects of diminishing resources.
She called Calgary’s Provincial Court a “leader across the province and the country,” when dealing with diminishing resources. For example, to deal with small overburdened rural courtrooms, regional dispositions are sometimes moved to Calgary. Setting aside a day for this purpose has helped to save time and effectively utilize the resources currently in place.
Another example is the Provincial Court's use of technology. For example, the court’s use of CCTV has reduced the need to transport parties and witnesses to courts. This eases the burden on support staff like sheriffs, clerks, and drivers.
When asked about the future of the courts and litigants’ ability to access and navigate them, Judge Shriar is optimistic. Since she was called to the bench, she has noticed many changes that increase both the efficiency of the court system and assist the courts in reaching appropriate verdicts. Specifically, technology and alternative dispute mechanisms have alleviated some of the pressures on the court system, while providing litigants with appropriate tools in which to solve their dispute.
However, more can be done.
We asked Judge Shriar what next steps the courts might take to continue to solve some of the issues individuals face when accessing the justice system. She said that, “the delay issue is critical. There were 15 charges dropped in Edmonton by a crown prosecutor to address these delay issues.”
“The courts do have a role to play in the process of helping to address root causes,” she said, and accordingly, we are likely to see an increase in “therapeutic courts, matrimonial courts, drug courts, and experimental programs.”
These measures will continue to funnel litigants out of the courtrooms while still providing them with the appropriate oversight. Solving disputes before trial, through programs such as mediation or judicial dispute resolution, saves both litigants and the courts time and money.
The Canadian justice system faces obstacles and challenges to provide fair and affordable access to its resources. It is clear at this point that Calgary’s Provincial Court has taken significant steps forward, leading Canada’s courts toward a future with a more accessible and balanced system of litigation and dispute resolution.
Posted by The BNA Act 1867 on March 08, 2017 at 08:30 AM in Aboriginal Law, Blog News and Stuff, Books, Civil Procedure, Constitutional Law, Courts & Judiciary, Criminal Law & Procedure, Current Affairs, Economic Policies, Education, Evidence, Family Law, Free Speech, General Interest, History, Human Rights, Judges, Law in General, Law School and Students Issues, Lawyers, Legal History, Literature, Politics, Rule of Law, Technology | Permalink | Comments (0)
Today, we explore a unique, local resource that facilitates access to justice. We met with Student Legal Services of Edmonton's Executive Coordinator, Neil Thomson, to find out more about the organization, what they do, and hear about just how much work they do by the numbers.
It is something we grow up thinking we know: everyone has a right to a lawyer. But, especially in Canada, that right is not absolute. Everyone has the right to contact a lawyer, but not usually the right to have representation.
We always hear about right to representation in American television dramas. This comes from the American Sixth Amendment, which grants “Assistance of counsel for...defence” in criminal cases.1 To ensure that this right is extended to people of low socioeconomic status, the government staffs Public Defender offices with lawyers who take on any client who cannot afford to pay for representation.2
Unfortunately, like many government programs, the Public Defender offices find themselves overburdened. Lack of funding has led to staffing cuts, while caseloads continue to rise. Lawyers are frustrated, finding it increasingly difficult to provide their clients with the level of assistance they both deserve and have a right to. This contributes to the high incarceration rates in America, especially among marginalized minority communities.3
Here in Canada we have only a specific right to counsel in three instances. The most common of these comes from section 10 of the Charter of Rights and Freedoms. The Charter guarantees that, upon arrest, the detainee will have an opportunity to contact a lawyer.4 Police have a responsibility to assist in making that contact.5 However, police only need to facilitate this opportunity once. Once counsel has been meaningfully contacted police can begin interrogation and the accused has no right to recontact counsel unless there is a change in their charges.6
This is not to say that we have no resources for people who are in need of representation. Part of the right to counsel is the right to be advised about the existence of Legal Aid, and in most jurisdictions provided with a toll free number that can be used to contact them.7 In Alberta, our Legal Aid service provides representation, usually through lawyers in private practice taking Legal Aid files, for a subsidized fee.8 They help people who are charged with any offenses serious enough to have a likelihood of imprisonment, as well as some civil and family matters.9
In some jurisdictions, additional services exist to help people accused of less serious crimes and involved in minor civil disputes. Here in Edmonton, Student Legal Services of Edmonton helps people of low socioeconomic status and University of Alberta undergraduate students. This student run organization cannot give advice (being made up of students rather than lawyers), but can help people find their way through the justice system. Come back tomorrow for our interview with Neil Thompson, the Executive Coordinator of the organization, for more information about this program.
The second category of right to counsel is in youth criminal matters. This is the category which most closely resembles the American right to counsel. Section 25 of the Youth Criminal Justice Act describes a right to counsel that specifies that all youth who cannot retain counsel are eligible for Legal Aid, or the appointment of counsel in lieu of such a program.10
The third and least common type of right to counsel is a Rowbotham application. In rare cases, the accused might slip through the cracks. Their case is too complex to be handled without a lawyer, but they have still been rejected by Legal Aid. In these rare cases, the Judge can appoint a lawyer at public expense to ensure that the accused receives a fair trial.11
Competent legal representation is important to a fair and justice system. It is an unfortunate reality that many of those who need representation the most are unable to obtain it on their own. Our systems attempt to bridge that gap, but could use reforms and more funding. However, they are helping people and providing valuable service to those in need. Hopefully these programs can expand in the future.
1US Const amend VI.
2Oliver Laughland, “The Human Toll of America’s Public Defender Crisis”, The Guardian (7 September 2016), online: <https://www.theguardian.com/us-news/2016/sep/07/public-defender-us-criminal-justice-system>.
4Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 10(b) [Charter].
5R v Manninen,  1 SCR 1233, 41 DLR (4th) 301.
6R v Sinclair, 2010 SCC 35,  2 SCR 310.
7R v Brydges,  1 SCR 190,  SCJ No 8.
8Legal Aid Alberta, Legal Aid Alberta Rules, p 1, online: <http://www.legalaid.ab.ca/information-resources/Documents/Rules%20and%20Policies/LAA%20Rules%20Dec%207%202015.pdf>
9Ibid, p 4-6.
10Youth Criminal Justice Act, SC 2002, c 1, s 25(4).
11Legal Aid Alberta, Rowbotham Application Information, online: <http://www.legalaid.ab.ca/information-resources/Documents/Court%20Ordered%20Counsel/Rowbotham%20Application%20Information.pdf>.
To conclude our week on education, we present our interview with the Honourable Marlin Schmidt, Minister of Advanced Education. Watch below to find out his views on education and federalism, as well as how post secondary education has changed since 1867.
What place does separate but publicly funded religious education have in modern Canada? As mentioned in a previous post, Manitoba was the first jurisdiction in Canada to end the practice of having parallel public and Catholic school systems. People are in favour of this system for both practical and principled reasons.
In Alberta, it seems perfectly normal to have parallel school systems; however, this is no longer the norm. Only Alberta, Saskatchewan, and Ontario retain this old division. Quebec abolished it, with federal consent, in 1999.1 The BNA Act guaranteed provinces with separate school systems the right to keep them under section 93.2 Section 93’s wording allows for the abolishment of parallel schools if it is not “prejudicial”, which justified Quebec’s actions.3
A major argument in favour of abolishing the Catholic system is efficiency. The Catholic school system is not merely a set of schools, but an entirely parallel administrative system. Edmonton Public School Board Chair Michael Janz recently floated the idea of Catholic programs run by Edmonton Public Schools. The Board already has programs for other denominations of Christianity, Jewish, and Islamic schools.4 Janz clearly maintained that he does not want to abolish the current Catholic Boards, but does see value in not duplicating infrastructure as both types of schools are built in new suburban neighbourhoods.5
Michael Janz has no interest in fighting to abolish the Catholic system, but there are those who do. Albertan Parents for Unbiased Public Inclusive Learning (APUPIL) and their spokesperson, Luke Fevin, are against segregated religious education. The description on their Facebook group reads:
“A community & a resource for Albertan parents of all faiths & non-faiths that wish for the children of our communities to be educated equally & inclusively, without religious preference, segregation or exclusion.
A group that recognizes the right of all humans to choose their faith and to practise it within the law, but that our childrens place of public education must be free of all religious bias so that all our children may be equally afforded the rights accorded to them through the Canadian Charter of Rights & Freedoms.”6
What is the counter-argument in favour of separate schools? Often the argument is that the fight is not worth having.7 Others argue that keeping Catholic schools is valuable to preserve choice in education, or to create competition.8 Sometimes giving people an environment that is steeped in their own religious tradition (or someone else’s religious tradition, to explore that culture) for school has value.9
Will Catholic School Boards remain separate in Alberta? The tide is turning against separate schools. It is particularly difficult to justify separate schools for one religious group, when the public system has demonstrated a willingness and ability to establish alternative programs for other groups who have not been granted the privilege of their own separate school system.
1 Samantha Emann, “Canada’s Publicly Funded Religious Schools Have to Go,” Metro (14 March 2016), online: <http://www.metronews.ca/views/opinion/2016/03/14/canadas-publicly-funded-religious-schools-have-to-go.html>
2 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 93, reprinted in RSC 1985, Appendix II, No 5.
3 Supra note 1.
4Paula Simons, “Public School Board Chairperson Stirs Pot With His Catholic Education Proposal”, Edmonton Journal (10 February 2017), online: <http://edmontonjournal.com/opinion/columnists/paula-simons-public-school-board-chairperson-stirs-pot-with-his-catholic-education-proposal>.
5 The Edmonton Journal Editorial Board, “No Need for Duplicate Catholic Education”, Edmonton Journal (8 February 2017), online: <http://edmontonjournal.com/opinion/editorials/editorial-no-need-for-duplicate-catholic-education>.
6 A PUPIL, “Description”, posted on A PUPIL - Alberta Parents for Unbiased Public Inclusive Learning, online: Facebook <https://www.facebook.com/groups/APUPIL/>.
7 Supra note 5.
8 David Climenhaga, “Advocates for More Choice in Education Unite to Condemn Public School Board Chair’s Call for More Choice in Education”, (10 February 2017), Albertapolitics.ca (blog), online: <http://albertapolitics.ca/2017/02/advocates-choice-education-unite-condemn-public-school-board-chairs-call-choice-education/>.
9 Supra note 4.
Law schools are notoriously difficult to get into and the challenge increases over time as applications increase. Today’s post discusses the change in demographics in law schools since 1867. Only two Canadian law schools existed prior to Confederation; both in Quebec.
Women in Law
At, and shortly after, 1867 women could not participate in the legal system in what was then Upper Canada. Men exclusively ruled the law schools and the legal system until Clara Brett Martin came onto the scene. She petitioned the Law Society of Upper Canada to become the first female articling student but she was refused.1
However, like other influential women of her time, Martin was persistent. She refused to take no for an answer and introduced a provincial bill to allow women to attend law school and practice law.
In 1893, Martin’s conviction changed the legal profession forever.Her bill was passed, allowing women to be admitted to the law society as solicitors.2 Martin was admitted as a law student in the same year and helped pass legislation to allow women to become barristers. In 1897, she became the first female lawyer in the British Empire.
Martin opened the door for women to excel in law, which is reflected in Canadian law school demographics today. Since 2000 at the U of A, about half of all law students in the faculty are women.3
Aboriginal and Indigenous Lawyers
In 1954, William Wuttunee was the first Aboriginal person to graduate from law school in western Canada.4 A Cree man, Wuttunee worked tirelessly to develop Aboriginal law in Saskatchewan and later moved to the national scene.
On the west coast of Canada in BC, Aboriginal peoples were “pretty much restricted from becoming lawyers” until the 1950s.5 It was Alfred Scow who broke down that barrier, becoming both the first Indigenous law student and member of the bar in BC.6
Today, many law schools in Canada including the U of A have a separate application categories for Aboriginal law applicants. The schools recognize the persisting underrepresentation of Indigenous lawyers, and are working to correct the disparity.
Though Canadian law schools have admitted more women and Aboriginal students since 1867, admission remains difficult. While some schools like the University of Calgary have moved to a more wholistic approach to admission, high grades and LSAT scores remain important.
The average U of A law student admitted in 2016 had a GPA of 3.8 out of 4.0 (based on the last 2 years of post-secondary courses) and an LSAT score of 161 out of 180.7 The LSAT did not exist in 1867.8
In addition to the demographic diversity, the applicant pool continues to grow. In 1848, 23 men petitioned McGill University to create a law school.9 In the last few years, , McGill rejected over 80% of applicants and U of A rejected about 85%.10
1Constance Backhouse, Dictionary of Canadian Biography, (University of Torotono/Universite Laval, 2005) sub verbo “Martin, Clara Brett”, online: <www.biographi.ca/en/bio.php?id_nbr=7840>.
2John D. Blackwell, The Canadian Encylopedia, (2008) sub verbo “Clara Brett Martin”, online: <www.thecanadianencyclopedia.ca/en/article/clara-brett-martin/>.
3See the University of Alberta Faculty of Law JD Program FAQs, <www.ualberta.ca/law/admissions/juris-doctor/faq#WomenEnrolled>.
4Doug Cuthand, “Remembering William Wuttunee: Cree lawyer was a trailblazer”, CBC News (2 November, 2015), online: <www.cbc.ca/news/indigenous/remembering-bill-wuttunee-1.3300662>.
5Yolande Cole, “B.C. judge Alfred Scow remembered as “aboriginal pioneer”, The Georgia Straight (8 March 2013), online: <www.straight.com/news/360396/bc-judge-alfred-scow-remembered-aboriginal-pioneer>.
6Allison Griner, “Aboriginal lawyers stride in footsteps of legal pioneer” (25 March 2013), online: <thethunderbird.ca/2013/03/25/aboriginal-lawyers-stride-in-footsteps-of-legal-pioneer/>.
7See the University of Alberta Faculty of Law JD Program applicant profile tab, <www.ualberta.ca/law/admissions/juris-doctor/applicant-profile>.
8William P. LaPiana, “A History of the Law School Admission Council and the LSAT”, (Keynote Address delivered at the 1998 LSAC Annual Meeting, 28 May 1998) [unpublished], online: www.lsac.org/docs/default-source/publications-(lsac-resources)/history-lsac-lsat.pdf.
9See McGill Faculty of Law’s “Our history” webpage, http://www.mcgill.ca/law/about/history.
10See the University of Alberta Faculty of Law JD Program FAQs, <www.ualberta.ca/law/admissions/juris-doctor/faq#AverageScores>.
Posted by The BNA Act 1867 on March 01, 2017 at 08:30 AM in Aboriginal Law, American Law, Blog News and Stuff, Books, Constitutional Law, Corporate Law, Courts & Judiciary, Current Affairs, Economic Policies, Education, Film, Free Speech, General Interest, History, Human Rights, Law in General, Law School and Students Issues, Lawyers, Legal History, Municipal Law, Politics, Rule of Law | Permalink | Comments (0)