This is three years old, but still applicable today:
Today, we offer our gratitude. Thanks to all of you who have clicked, shared, liked, retweeted, and otherwise gotten involved with this year’s Law and Social Media project. Special thanks go out to our interviewees, who have braved the camera and taken the time to speak with us.
We’ve had a lot of fun creating these posts and learned a lot in the process. While we’ve occasionally stayed on track with regards to discussing the Constitution Act, 1867, at times, we felt it necessary to broaden the scope of this project, giving you the occasional post about cloned sheep or fictional comic book law. We’ve aimed to strike a balance between educational and entertaining. Learning about a new area of law, concept, or historical figure in order to write competently on such a new topic every week has been a bit of a challenge, but one that has proven to be invigorating.
Special thanks are in order to our academic advisor on this project, Vice Dean Moin Yahya. His unwavering support for this project has facilitated our ability to learn so much over the course of this year.
As for the future of the blog and this semester’s participants, three of us will be concluding our legal studies this month, and will begin the next chapter in our careers. The other two of us will be entering their final year of law school with very demanding schedules and will therefore be unable to continue with next year’s project.
Moving forward, we are pleased to announce that next year’s Law and Social Media project will focus on issues regarding Indigenous people in Canada, specifically the Truth and Reconciliation Commission. In addition to five brand new student bloggers, the Vice Dean will be sharing the responsibility for advising the project with Professor Hadley Friedland. Professor Friedland is a recent addition to the Faculty of Law at the University of Alberta and recent winner of the Governor General’s Gold Medal. She is a widely respected expert on Indigenous legal issues and has spent a considerable amount of time working with these communities.
Once again, we thank you all for your support, and hope to see you engaged for next year’s project, especially considering its importance to Canada’s growth and healing as a country.
Finally, we wish our fellow Canadians an early happy 150th. As future officers of the court, it will be our privilege and our honour to be able to serve our country in this manner.
We Remain Your Humble and Obedient Servants,
What will Canada be like in another 150 years? Despite deepening darkness in the world around us, I like to be optimistic. I think that Canada, and hopefully our world, will be a better, fairer place in the centuries to come. Since Confederation, Canada’s laws have increasingly reflected our social and political values toward equality and fairness.
However, I doubt the text of our Constitution will change much. The amending formula found in section 42 of the Constitution Act, 1982 requires too much buy-in from too many different places with different agendas. Any changes to the text of the Constitution require votes in favour in seven of the ten provinces, which must exceed half the population of the country.1 We will be freer and fairer, but regional squabbles will always exist. Barring a war which redraws maps and forces us to rewrite the entire thing, the text itself probably won’t have changed much. It’s possible Quebec will not even have ratified it..
Luckily, the Supreme Court of Canada (SCC) has always shown a willingness to adopt a living tree doctrine, allowing our society to evolve with changing Canadian values. It was the SCC that insisted on protecting people from discrimination based on sexual orientation.2 It was the SCC that established the right to assisted suicide.3 It was the SCC that established that our outdated sex work laws were dangerous.4 The SCC split 6-3 over whether something must have identifiable harm to be criminalized and, as the challenger wished to establish, whether prohibition of marijuana was unconstitutional.5
As the SCC and future progressive parliaments will push our society forward in some ways, new technologies will push it forward in others. Automation is the way of the future (though people touting new AI as a replacement for lawyers clearly do not understand the profession), and Canada must adapt accordingly.
One adaptation I see to deal with those issues is the adoption of a Universal Basic Income (UBI) scheme. UBI is the idea of making sure that everyone has a basic standard of living through no-strings-attached cash payments. The largest social change in centuries will have to occur, and will require Canadians to stop stigmatizing a lack of gainful employment. We need to not look down on people who don’t “work”, especially those who choose not to in order to pursue art, education, and invention.
The future is bright. Our courts are willing to reinterpret our constitution to reflect our changing society. Our country is evolving at an incredibly rapid rate. Happy 150, Canada. I hope I live long enough to see a fraction of how great things will be when you hit 300.
1Constitution Act, 1982, s 42, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
2Vriend v Alberta,  1 SCR 493, 156 DLR (4th) 385.
3Carter v Canada (Attorney General), 2016 SCC 4,  1 SCR 13.
4Bedford v Canada (Attorney General), 2013 SCC 72,  3 SCR 1101.
5R v Malmo-Levine, 2003 SCC 74,  3 SCR 571.
Where do I see Canada in the next 150 years? To be honest, I have absolutely no idea. However, with the technological and scientific advances occurring in today’s world, we may all be alive to witness Canada in the year 2167!
At Cambridge University, a researcher named Aubrey de Grey believes he has identified all of the causes of aging, and can overcome them all. By doing so, de Grey claims that humans are capable of living up to 1,000 years old.1 He is convinced that he understands the theoretical underpinnings of human illness and death and has indicated that 25 years is all the world will need to make his theory a reality.
However, he recognizes that he is a computer scientist, not a human biologist.2 S. Jay Olshansky, one of De Grey’s contemporaries, has the human sciences background that de Grey lacks. Olshansky is a professor of Public Health and research associate at the Center on Aging at the University of Chicago.3 His work pursues means to slow down human aging and discovering the “upper limits to human longevity.”4
If researchers are successful in extending the human lifespan, what kinds of political obstacles would they face?
Most people are skeptical that humans have the ability to extend their own lives.5 People firmly believe in the inevitability of aging and death and the science world is having a hard time changing that perspective.
But how then are pharmaceutical companies who sell “anti-aging products” so successful if the world refuses to buy into the idea of longevity?
These companies are excellent marketing specialists but they do not truly market “living longer.” Rather, they convince people that their products will allow them to remain young while they are alive. They encourage consumers to buy products that they claim will make them look and feel more youthful.
In the United States, pharmaceutical companies can legally sell anti-aging products that are merely placebo.6 The FDA allows “cosmeceuticals” to be sold without approval, so long as the product does not contain drugs.7
There is the additional problem that even if pharmaceutical companies attempted to conduct research on life extension, it would take a lot of money and a lot of time. These companies want to make money and it is not in their interest to invest all that time and money on an unsure bet.
However, if these money powerhouses teamed up with brilliant science minds, it’s impossible to say what they could accomplish.
There are also organizations popping up that provide cryonic freezing: a low temperature method of preserving human bodies in the hope that they can be revived by future medicine.8 Currently, this method of preservation is only available after death; you cannot be frozen while alive.
Whether or not you believe in life extension, there are many people working towards that ultimate goal.
So I may be long gone by the time #Canada300 rolls around, but who knows: maybe I won’t be.
1Caspar Llewellyn Smith, “Aubrey de Grey: We don’t have to get sick as we get older”, The Guardian (1 August 2010), online: <https://www.theguardian.com/technology/2010/aug/01/aubrey-de-grey-ageing-research>.
2Sherwin Nuland, “Do You Want to Live Forever?”, MIT Technology Review (1 February 2005), online: <https://www.technologyreview.com/s/403654/do-you-want-to-live-forever/>.
7US, US Food and Drug Administration, Cosmeceutical (Silver Spring: MD, US Food and Drug Administration, 2014), online: <https://www.fda.gov/Cosmetics/Labeling/Claims/ucm127064.htm>.
Posted by The BNA Act 1867 on April 05, 2017 at 08:00 AM in American Law, Blog News and Stuff, Current Affairs, Film, General Interest, History, Law in General, Law School and Students Issues, Lawyers, Legal History, Literature, Movies & Pop Culture, Politics, Science, Technology | Permalink | Comments (0)
Where do I see Canada in the next 150 years? What an interesting question. I highly doubt I will be alive to witness it, but I have a few minor wishes for my own life time. Rather than focussing on where I think the country will be in 150 years, I am going to explain where I want it to be in ten.
Last year’s presidential election was contentious, controversial, and fascinating all at the same time. An election filled with name-calling, bigotry, media rants, and outright craziness led to one of the most shocking results ever. The world watched as Donald Trump became the 45th President of the United States over Hillary Clinton. A businessman commonly recognized from his appearances on The Apprentice beat out a career politician. Many people thought this was insanity; others prepared for what seems like the start of an apocalyptic movie.
Hillary Clinton’s loss left many women wondering when it will be their turn to hold the highest office in the United States. Will women ever get that chance? How many more years would we wait to shatter the most resilient glass ceiling in the world?
Thankfully, Marie Henein, a named partner at Henein Hutchison reminds us that Canadians should not be patting ourselves on the back yet. We have also never formally elected a female prime minister. The only woman to ever hold the highest seat in our country was the Right Honourable Kim Campbell 24 years ago when Brian Mulroney stepped down from office.1
When we look at our current political climate it is hard to pinpoint when a woman will even have a chance to be Canada’s Prime Minister. Depending on the outcome of the current Conservative leadership race (click here for our post from last week covering this ), all three major Canadian parties will be led by men, assuming O’Leary wins. Since I have been eligible to vote no serious female contender has been available. So my question moving forward is: when?
While it is easy to point a finger at our neighbours south of the border for their lack of female leadership, we tend to overlook our own. In fact, out of the 13 Canadian provincial premiers only three are women. Marie Henein was right when she stated that for women in North America the message is clear, “You can hold office, just not the highest one. You can succeed, just not too much.”2 My hope is that by the time Canada is celebrating its 200th birthday this message has changed.
When we focus on the political climate elsewhere, women in other countries have fared far better than us. Sri Lanka set the stage for the rest of the world by electing its first female Prime Minister in 1960.3 Fifty-seven years ago a woman was leading a country. To many hopeful women, it would seem that we were making progress. As groundbreaking as Sirimavo Bandaranaike’s election was, another woman would not follow suit in 1979 when Margaret Thatcher became the Prime Minister of the United Kingdom. It took 19 years for another country to catch on, so while women were making progress, it was slow.
Currently only 33 women have been elected to represent their country in the highest office. Notably missing from the list is any North American country. The question remaining is why? What are we teaching young educated women? We are likely teaching women exactly what Marie Henein suggests, set big goals, become educated, and become successful. Just do not become too successful though because that is not what women do.
I truly hope that within the next 10 years this message has changed. It is time we change our attitudes about women in leadership. Instead of criticizing a woman’s “nasty” demeanour, it is time we celebrate her worth, ethic, and drive. Women are brilliant, capable, and deserving of the same successes as men. So by 2027 hopefully we will have one running our country as a result of her election, not as a result of merely filling in temporarily. Until then we will wait, not too patiently, for our turn.
1 Marie Henein, “Thank you, Hillary. Now women know retreat is not an option,” The Globe and Mail (10 November 2016), online: <www.theglobeandmail.com/opinion/thank-you-hillary-women-now-know-retreat-is-not-an-option/article32803341/>.
3 Christine Zhang & Andrea Roberson, “When the rest of the world elected women leaders,” The LA Times (14 November 2016), online: <www.latimes.com/projects/la-fg-women-world-leaders/#decade60>.
Posted by The BNA Act 1867 on April 04, 2017 at 07:00 AM in American Law, Blog News and Stuff, Books, Constitutional Law, Criminal Law & Procedure, Current Affairs, Economic Policies, Education, Film, Free Speech, 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, Scholarship, Technology, Television, Tort Law | Permalink | Comments (6)
Studying the British North America Act involves research into history: the foundations of the Dominion of Canada, the social and political factors that drove or opposed Confederation, and the laws that shaped our current jurisprudence and legislation. For this final week blogging as the Dominion 2017, each writer takes a turn looking to the future.
Pop culture has a mild obsession with fantastical zombie apocalypse theories like in the film World War Z and the television series The Walking Dead. Today we exploit this wordplay to write about Canada’s zombie laws.
Today’s post doesn’t predict a zombie apocalypse. Instead, it celebrates the impending doom of so-called zombie laws in the Criminal Code.
Several “undead” laws remain “on the books”—in the Criminal Code—until Parliament amends or repeals them. Zombie laws are effectively null. If a court imposes a conviction under such laws, the defendant will likely succeed on appealing that conviction. Most zombie laws have been struck down by the courts for failing to comply with the Constitution. Others are simply out of date with contemporary customs.
Zombie laws usually don't do anything but sit on the books and make law students chuckle. So, what’s the harm of leaving them written in the code? It’s simply misleading; it can confuse the justice process. The government should clearly express what is an is not a law so that individuals are aware. Without the benefit of a legal education to sort through case law, many people may be unaware of laws that have been struck down.
Legal scholars across Canada renewed their demands on parliament to repeal zombie laws after the apocalyptic fallout when a judge used such a law. As we wrote in September, Court of Queen’s Bench Justice Denny Thomas convicted Travis Vader using a charge that has been struck down by the Supreme Court of Canada (SCC). Justice Thomas subsequently corrected that error and convicted Vader with manslaughter. This correction precluded Vader’s lawyers from appealing the conviction on the grounds that it fell under an unconstitutional provision.
A parliamentary democracy gives lawmakers parliamentary supremacy. Parliament can enact or repeal any law it wishes by passing a bill through the House of Commons. However, the Constitution supersedes all other legislation. In 1982 the constitutional supremacy clause was introduced. It assures that all Canadian legislation is consistent with the constitutional provisions. When courts interpret legislation, they have the power to strike down a law and render it “of no force or effect” to the extent that it is inconsistent with the Constitution; including the Charter of Rights and Freedoms.
The Charter also took effect in 1982 and, being part of the Constitution, holds the same status as supreme law. Several laws—among those listed below—that were enacted before 1982 have subsequently been rendered unconstitutional.
To bring the Criminal Code text in line with jurisprudence and contemporary social values, Parliament has announced that it will repeal (hopefully all) the zombie laws. Eliminating uncertainty and vagueness in the Criminal Code will prevent potential future apocalyptic zombie justice system.
List of Undead Offenders:
 RSC 1985, c-46.
 Constitution Act, 1982, s 52, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution].
 Tu Thanh Ha, “These Seven Archaic ‘Zombie Laws’ still Exist in the Criminal Code,” The Globe and Mail (8 March 2017), online: <www.theglobeandmail.com/news/national/these-zombie-laws-in-the-criminal-code-could-still-have-you-arrested/article34246168/>.
 Constitution, supra note 2, s 52.
 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
 Kathleen Harris, “Federal Government to Axe 'Zombie Laws' from Canada's Criminal Code,” CBC News (7 March 2017), online: <www.cbc.ca/news/politics/criminal-code-reform-zombie-laws-1.4013869>; Brent Rathgeber, “The Criminal Code is in Dire Need of Housecleaning: Trudeau Needs to Pick Up where Harper Failed to Act,” iPolitics (22 September 2016), online: iPolitics.com <www.ipolitics.ca/2016/09/22/the-criminal-code-is-in-dire-need-of-housecleaning/>.
 Harris, ibid.
 Ha, supra note 2.
 R v M(C), 23 OR (3d) 629, 82 OAC 68; R v Roth, 2002 ABQB 145, 306 AR 387.
 R v Butler,  1 SCR 452, 89 DLR (4th) 449.
 Ha, supra note 3.
 R v Heywood,  3 SCR 761, 120 DLR (4th) 348.
 R v Zundel,  2 SCR 731, 56 OAC 161.
 R v Vaillancourt,  2 SCR 636, 68 Nfld & PEIR 281; R v Martineau,  2 S.C.R. 633, 76 Alta LR (2d) 1.
 R v Gatt, 1992 CanLII 1105 (BC SC).
 R v Morgentaler,  1 SCR 30, 44 DLR (4th) 385.
 Ha, supra note 3.
Posted by The BNA Act 1867 on April 03, 2017 at 08:00 AM in Constitutional Law, Courts & Judiciary, Criminal Law & Procedure, Current Affairs, Education, Film, General Interest, History, Human Rights, Judges, Law in General, Law School and Students Issues, Lawyers, Legal History, Movies & Pop Culture, Politics, Pop Culture, Religion, Rule of Law, Scholarship, Technology, Television | Permalink | Comments (0)
The Oxford Castle spent most of its historical life functioning as the local gaol.
The hotel that's now part of the castle complex is a Malmaison Hotel.
We end our political party week by discussing Canada’s founding political party. The Conservative Party adopted its values and policies from the British Tories and governed Canada for 29 consecutive years after Confederation.1 Since Confederation the Conservative Party has changed substantially. For the purpose of today’s post we will be focussing on the Conservative Party’s merger after the year 2000 and its upcoming leadership race.
Before unifying in 2003, there were two separate and distinct conservative parties: the Canadian Reform Conservative Alliance and the Progressive Conservative Party of Canada.2 The two merged in December 2003 with overwhelming support from both parties and a hope of creating a stronger and more unified conservative movement.3 A newly formed party required one more thing: a newly elected leader to bring new life to the campaign. On March 20th, 2004, Stephen Harper became the first leader of the Conservative Party of Canada.4 Harper led the Conservatives to success in the 2006 election, and maintained control of the Canadian government until November 2015.
After the loss of the 2015 election, Harper chose to step down from party leadership leaving Rona Ambrose as the current interim party leader.5 This brings us to the current state of the Conservative government. On May 27th, 2017, Conservative Party members will vote to elect the party’s new leader. Fourteen candidates put their names forward almost immediately upon notice of the election, but polls suggest that there are really only three contenders.6
With an early lead over the other candidates, polls suggest that Kevin O’Leary with (22.1%) will be the next Conservative leader.7 Controversial, outspoken, loud, and critical of Canada’s current Liberal government, O’Leary has certainly created a name for himself. Perhaps Conservative Canadians are unhappy with how Justin Trudeau and the Liberals are running the country, or maybe O’Leary’s name is more recognizable due to his fame from “Dragon’s Den.” Regardless of the reason, O’Leary’s election seems likely.
What platform is O’Leary actually running on when you look past the loud media rants and wild antics? The answer is hard to determine. O’Leary’s campaign page suggests that he wants to support small businesses and hardworking Canadians using his investment background.8 He also suggests that it is time for the country to be run by someone who is not a career politician. Sound familiar? I recall a certain Donald Trump making similar suggestions south of the border. While O’Leary may have good intentions of balancing the Canadian budget and providing support to working Canadians he does not make any tangible suggestions as to how he will do this. But he is a businessman so he must know how to deal with the economy, right?
The Conservative Party would head in an interesting direction if O’Leary were elected. If he’s elected I hope O’Leary will make, and keep, tangible promises to Canadians, rather than just rant about Justin Trudeau’s time in office. Who knows though, maybe by May 27th Kellie Leitch or Maxime Bernier will take the vote. All we can do now is stay tuned and leave you with a quote from O’Leary:
"I understand what he is doing with the media, and you can certainly claim I am trying to do the same, but I am not Donald Trump."9
1 Trevor W Harrison, “Conservative Party”, The Canadian Encyclopedia (19 August 2015), online: <www.thecanadianencyclopedia.ca/en/article/conservative-party/>.
2 Conservative Party of Canada, “Our History” (2017), online: <www.conservative.ca/our-party/our-history/>.
5 Conservative Party of Canada, “Leadership” (2017), online: <www.conservative.ca/leadership/en>.
6 “Conservative leadership candidate Kevin O'Leary says he knows where 'rot' is at CBC: 'We could save billions of dollars'”, Toronto Sun (28 March 2017), online: <www.torontosun.com/2017/03/28/conservative-leadership-candidate-kevin-oleary-says-he-knows-where-rot-is-at-cbc-we-could-save-billions-of-dollars>.
8 Kevin O’Leary, “Why I’m Running” (2017), online: <https://olearyforcanada.ca/en/why/#0>.
9 The Canadian Press, “A selection of quotes from Conservative leadership candidate Kevin O'Leary” Times Colonist (18 January 2017), online: <www.timescolonist.com/a-selection-of-quotes-from-conservative-leadership-candidate-kevin-o-leary-1.7857343>.
Posted by The BNA Act 1867 on March 31, 2017 at 07:00 AM in Blog News and Stuff, Civil Procedure, Constitutional Law, Current Affairs, Economic Policies, Film, Free Speech, General Interest, Humor, Law in General, Literature, Movies & Pop Culture, Politics, Pop Culture, Rule of Law, Scholarship, Technology | Permalink | Comments (0)
Canada constitutionalized the right of people to join and leave organizations, take collective action, and pursue interests of members in section 2(d) of the Charter of Rights and Freedoms. Canada also enshrined the right to participate in federal elections (section 3). These are the same rights that allows political parties to assemble and have candidates run under a party name in every election.
There are many ‘serious’ parties that run in every election. Excluding the biggest contenders (Conservative, Liberal, and NDP), there are also many small parties who benefit from s 2(d) of the Charter, such as the Communist Party of Canada, Democratic Advancement Party of Canada, and the Libertarian Party of Canada, to name a few.1
But what about the satirical parties, who, some would argue, abuse this Canadian fundamental freedom, allegedly making a mockery of the democratic process?
The Rhinoceros Party of Canada was active for 30 years, from 1963-1993 and in 2010, re-emerged under a new name. The party ran new candidates in the 2015 federal election, and their main campaign promise was “a promise to keep none of its promises.”2 Their platform included repealing the law of gravity, banning Canadian winters, and getting rid of the Rocky Mountains so “Albertans can see the Pacific sunset”.3
Though humorous and satirical, the Rhino Party is considered a legitimate political party under Canadian law. As long as they ran candidates in at least 50 ridings (see Figueroa), the Rhino Party was able to keep its status into the 90’s. Through its 30 year-long existence, no one from the Rhino Party was ever elected as an MP; they were not victorious in any riding.
Should the party have been allowed to exist in the first place? They have never had a successful candidate, and their platform is both outrageous and unrealistic.
Sections 24 and 28 of the Canada Elections Act legislates that to be a registered party, a party must have 50 candidates on the ballot. In the 2003 case of Figueroa v Canada, Figeuroa argued that the 50-candidate rule discriminated against smaller parties and was unconstitutional under s 3.4 The Supreme Court of Canada found that s. 3 does not provide unlimited participation in the political process.
“The mere fact that the legislation departs from absolute voter equality or restricts the capacity of a citizen to participate in the electoral process is an insufficient basis on which to conclude that it interferes with the right of each citizen to play a meaningful role in the electoral process.”5
The Court has clearly taken the position that although it understands the importance of section 3, it will not provide unlimited rights for participation in democracy. But should parties including the Rhino Party be allowed to run candidates?
However offensive as this may seem to some, fringe parties like the Rhino Party play an important role in the Canadian political scene. Sebastien Corriveau, the Rhino Party’s leader, hopes that his party’s approach to politics will help to “engage at least some Canadians in the democratic process”.6
"There are so many people who don't care about politics. If we can make them engage through humour, then that's okay," he said. "We always run for a majority government, but failing that, some comedy. There are some things worth saying that no one else can say."7
So perhaps it’s important to have these parties who are willing to take a different approach to politics, all in the name of the democracy.
1“Rhinos and Pirates: A Look at Canada’s Federal Fringe Parties”, CTV News (30 August 2015), online: <www.ctvnews.ca/politics/rhinos-and-pirates-a-look-at-canada-s-federal-fringe-parties-1.2538158>.
2“Rhino Party Escapes Extinction to Run in September By-Election”, CBC News (7 August 2007), online: <https://web.archive.org/web/20121109030040/http://www.cbc.ca/news/canada/story/2007/08/07/rhino-election.html>.
3“14 Weird Platform Promises From teh Now-Defunct Rhinoceros Party”, Maclean’s (30 August 2014), online: <www.macleans.ca/society/14-weird-platform-promises-from-the-now-defunct-rhinoceros-party/>.
4Figueroa v Canada (Attorney General), 2003 SCC 37.
5Ibid at para 36.
6Kathleen Harris, “Fringe Parties Fight to Spread Message, Sway Swing Ridings”, CBC News (29 August 2015), online: <www.cbc.ca/news/politics/canada-election-2015-fringe-parties-marijuana-1.3206935>.
Posted by The BNA Act 1867 on March 30, 2017 at 08:00 AM in Blog News and Stuff, Constitutional Law, Courts & Judiciary, Current Affairs, Economic Policies, Education, General Interest, Human Rights, Law in General, Law School and Students Issues, Lawyers, Legal History, Literature, Movies & Pop Culture, Municipal Law, Politics, Rule of Law, Television | Permalink | Comments (0)
The NDP is usually considered the “left wing” party in Canada. They are known for their progressive social and economic policies. Does this focus on change and growth also apply to their policies on the Constitution?
The only explicit mention of the Constitution in the NDP Policy document is present in their discussion of Quebec. One of their stated goals is “Creating the conditions enabling Quebec to sign the Canadian Constitution.”1 This is a reference to Quebec’s status as the only province to not sign the newly patriated Constitution in 1982. This was done because they lost the veto that they previously had over constitutional changes, and because guarantees of minority language rights threatened their French-only policy, Bill 101.2 This position is not described in much depth, but would almost certainly require an opening up of the Constitutional Question. When you try to change one thing in the Constitution, the entire document becomes open to debate. Who knows what other provinces might demand if this were to occur?
Party policies can have constitutional implications even if they are not explicit. One of their policy points is “Abolishing the unelected and unnecessary Senate.”3 The existence of both the House of Commons and the Senate is explicitly identified in the BNA Act.4 This would also require the opening up of the Constitutional Question, getting buy-in from sufficient number of provinces, all of whom would have likely competing requests. This would also ultimately require the Senate to vote for it’s own dissolution.5
A policy point with more subtle constitutional implications is the commitment to replace our first past the post electoral system with mixed member proportional representation.6 The BNA Act does not explicitly describe a first past the post voting system. However, it does specify that each electoral district will elect one Member of Parliament.7 Mixed member proportional representation causes a certain number of seats to be elected based on voting for a specific person on the ballot (as we already have), but other seats would be filled from party lists based on vote proportions.8 This seems to violate, at least in spirit, the BNA Act.
It is easy to find a party which follows at least an approximation of one’s ideals. However, ideals are not always enough. It is important to look carefully at a party’s policies and consider how practical their implementation would actually be. There are times when, constitutionally speaking, a good idea can be much easier said than done.
1 The New Democratic Party of Canada, “Policy of the New Democratic Party of Canada” (April 2016) at 20, online: <xfer.ndp.ca/2017/Documents/2016_POLICY-EN.pdf>.
2 The Canadian History Project, “Why Quebec Refused to Sign in 1982,” online: <http://www.canadahistoryproject.ca/1982/1982-07-quebec-refusal.html>.
3 Supra note 1.
4 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 17, reprinted in RSC 1985, Appendix II, No 5.
5 Constitution Act, 1982, s 38(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
6 Supra note 1, at 19.
7 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 40, reprinted in RSC 1985, Appendix II, No 5.
8 Aaron Wherry, “The Case for Mixed Member Proportional Representation,” Macleans (8 December 2014), online: <www.macleans.ca/politics/the-case-for-mixed-member-proportional-representation/>.
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)