It has been a few years now, and sadly the pace of asset forefeiture cases in Canada seem to be heading towards their American counterparts examples. The courts, or at least some of them, have not been so readily accepting of these cases as their American bretheren (though American courts are finally developing some hesitation in accepting them).
In Canada, the Alberta courts are emerging as the pro-liberty courts when it comes to this issue. In AB v. Kouch, the Court of Appeal of AB (Justices Conrad, O'Ferrall, and Brown) took what I call a Dicey-legality-esque approach to the question. Instead of tackling the grand of question of the legality or wisdom of asset forfeiture, they held the state's feet to the fire and asked that their claims be proven. In this case, the court held that there was no proof of the underlying claim. Mere assertions were not sufficient (something the trial judge had accepted).
The Court of Appeal of AB's decision is a per curiam judgment, which is the style in Alberta these days, so one cannot discern who wrote it (probably all there had something to do with various parts of it). But, given that Justice Brown was on the panel, there are some parallels in the philosophy of the judgment and an earlier judgment issued by then QB Justice Brown. Regardless of who wrote the judgment, kudos to the Court of Appeal for taking the rule of law seriously.
Again, to be clear on my views: prove the crime up front and punish up front. End of story. That is fair, makes us all better off, and is also tough on crime. Politicians have to learn to resist legislating for optics.
I had read about Professor Dan Markel's death a few days ago. It was all over the legal blogosphere and the news. It is tragic. When it hits closer to home (a fellow Canuck and law prof.), it hurts even more. David Lat has some nice things to say over at ATL. Our condolences to the family.
What do Alberta and Colombia have in common? They have both, as this Economist article points out, benefitted from the exodus of highly skilled oil workers from Venezuala post-Chavez:
IN 2003 Venezuela’s then president, Hugo Chávez, fired more than 18,000 employees, almost half the workforce, of the state-run oil corporation, Petróleos de Venezuela (PDVSA). Their offence was to have taken part in a strike (pictured) called in protest at the politicisation of the company. Their punishment was to be barred from jobs not only in PDVSA itself but also in any company doing business with the oil firm. The axe fell heavily on managers and technicians: around 80% of the staff at Intevep, PDVSA’s research arm, are thought to have joined the strike. At the stroke of a pen, Venezuela lost its oil intelligentsia.
Many headed to Alberta, in Canada, where the tar sands yield a residue that is similar to the heavy oil from the Orinoco belt, which Venezuela is struggling to develop. There were 465 Venezuelans in Alberta in 2001; by 2011 there were 3,860.
On June 26, 2014, the Supreme Court of Canada made history by recognizing for the first time a claim for Aboriginal title (Tsilhqot’in Nation v. British Columbia). Having done so, the Court went on to set conditions on what Aboriginal title-holders can do with their land. These conditions include the requirement that the land cannot be “encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land.”(Para 74) Whether a particular land use is consistent with this requirement was left to be determined on a case by case basis, although permanent changes and “modern” uses are not necessarily precluded. Later in her reasons, Chief Justice McLachlin states that use of Aboriginal title land “cannot destroy the ability of the land to sustain future generations of Aboriginal peoples” (para 121).
The Court then went on to discuss when infringements of Aboriginal title would be justified. The list of activities that could constitute justifiable infringements, quoted from the Court’s prior decision in Delgamuukw, includes “development of agriculture, forestry, mining, and hydroelectric power” and “the general economic development of the interior of British Columbia” (para 83). The only express mention of future generations is in relation to the Crown’s fiduciary duty to Aboriginal Peoples.
Similarly, in Grassy Narrows First Nation v. Ontario (Natural Resources), released two weeks after Tsilhqot’in, the right of the Government of Ontario to take up lands within Ojibway traditional hunting and fishing territory for settlement, mining and logging is subject to obligations regarding treaty rights and to accommodate “if appropriate” First Nations’ interests, but there is no mention of Ontario’s responsibilities to future generations of Ontarians.
The broader question of moral obligations owed to future generations with respect to land use and natural resource development was not, of course, directly before the Court in either case. But it cannot be that the obligation to authorize land use or development of natural resources in a manner consistent with the interests of future generations is an obligation owed only by First Nations governments to future generations of Aboriginal peoples and only with respect to Aboriginal title lands. On what principled basis could such a distinction rest? Surely this is an obligation owed by all levels of government in Canada to future generations of Canadians as a whole.
I’d like to make a quick point about the “shale revolution,” which may be old news to those immersed in North American energy policy but might be helpful to those just starting to think about the wider implications of increased North American production of oil and gas.
Increased production of oil & gas from shale formations using hydraulic fracturing and horizontal directional drilling is often referred to as North America’s shale revolution because of the way it has transformed oil & gas production, reserves, production, and pricing. But the “revolutionary” part of these changes mostly boils down to two big changes: 1) natural gas prices, which were rising, are now falling, and 2) oil production, which was falling, is now rising.
So that’s why I say the shale revolution is mostly about 1) gas prices, not gas production, and 2) oil production, not oil prices. The following four charts show oil & gas production and prices from 1997-2013. They show that the shale revolution in the U.S. has turned around rising natural gas prices and falling oil production. You can also see a more gradual increase in natural gas production. Finally, you can see that U.S. oil prices show little impact from all that increased production.
With increased challenges to crude transportation and growing liquefied natural gas markets, gas and oil markets may become somewhat more similar over time. But for now they are very different. So when you talk about the shale “revolution,” keep in mind whether you are discussing oil or gas and prices or production. It will help you make sense of many of the developments in energy markets and policy and will help you sort out some of the talking points from those arguing that the shale “revolution” changes everything and those arguing it changes nothing.
You may never have heard of a trigger warning before so just in case, I’ll start out by presenting the (only neutral) definition available on urbandictionary.com:
"Used to alert people when an internet post, book, article, picture, video, audio clip, or some other media could potentially cause extremely negative reactions (such as post-traumatic flashbacks or self-harm) due to its content. Sometimes abbreviated as “TW."
Trigger warnings are very similar to other content warnings common on the internet and offline (spolier alerts, Not Safe For Work or NSFW, maturity ratings on movies and video games, etc.). They provide information to potential viewers so that they can decide if they would like to view the content. This benefits the provider of the content by giving them an opportunity to show their consideration for viewers that may be upset by the content. It benefits the viewer because it allows them to make an informed decision before viewing the material. Sometimes that means waiting to view the material (ex. until you see that episode, until you are in a private place, until you are a certain age, until you are in a different mood, etc.) or choosing not to view that content at all.
I’m sure if you reflect on your own experiences (or empathize with the experiences of others) you can think of situations in which a trigger warning may benefit students in an academic setting. Personally, what comes to mind is that in grade 12 I was in English 30-1 and the assigned reading was “The Wars” by Timothy Findley. To this day I remember the piece and its use of symbolism and its careful thematic structure and I have a lot of appreciation for it as a piece of literature. However, the book includes very graphic scenes of sex and violence from masturbation to gang rape. We were instructed to silently read for a period of every English class and reading this material in the company of my classmates made me extremely uncomfortable. I was affected by these scenes, I cried, I was distraught, and I was embarrassed. I resented that the material was chosen for us to read and though I was a driven student and wanted nothing more than to be successful in the class, I skipped a lot so I could read on my own. The class discussion and instruction regarding the material I missed likely explains the 20% drop in my grade when I wrote my diploma on a book I read alone. Had there been a trigger warning, I would have felt validated in struggling with the material. Maybe I would have felt more comfortable discussing the material with my classmates despite being emotionally affected by it. Maybe I would have been willing to explain to my teacher that I was struggling and ask if other arrangements could be made. Maybe I would have chosen to take a different class where I could succeed and get the best grade possible and improve my chances of being accepted into the post-secondary institution I wanted to attend. I also remember when a classmate sobbed and left our Social class when we watched the Boy in the Striped Pajamas. I wasn’t as affected by the material, but I definitely would not have opposed a warning that could have given my friend a choice about how to deal with that situation. Maybe if there had been a trigger warning the boys at the back of the class would have thought twice before they laughed at the sobbing student fleeing the classroom. At the very least, I doubt it would have hurt.
In my university studies I have experienced “trigger warnings” of sorts. In my philosophy classes more often than not our course and many specific topics were preceded by an acknowledgement that students come from all sorts of academic, personal, and cultural backgrounds. We were welcomed to discuss any concerns we had with our professor. We were encouraged to express our opinions, but reminded to be considerate and respectful of our classmates. This created an environment that facilitated mutual respect, open-mindedness and thoughtfulness. I loved it. In law school, I remember very clearly when Professor Sankoff discussed that the criminal law naturally requires us to cover some dark material. He too encouraged us to be thoughtful and respectful of our fellow students and to come to him with any concerns we may have. These sentiments were repeated before difficult topics like sexual assault. Neither in arts school nor in law school did this sensitivity eat up class time and class discussions in these courses continued to be enthusiastic and illuminating. Had they been included in the class syllabi or descriptions, they would not have caused me to hesitate in any way to take the courses.
Given my experience, the harsh criticism of students’ request to see trigger warnings used in an academic setting surprises me. It seems the criticism tends to fall into three general categories. The first line of criticism is that the use of trigger warnings in an academic setting borders on censorship. I don’t find this line of argument to be particularly compelling. Conflating restricting and suppressing content and asking for a description of that content is just a weak argument, plain and simple. The second line of argument is that trigger warnings only offer an “illusion of safety”. It is true that everyone’s experiences are unique and what is triggering for some is not triggering to others. Therefore, to anticipate and warn of all triggers for all students would be impossible. However, just because a trigger warning for sexual violence or suicide or anything else doesn’t protect everyone doesn’t detract from the benefit it provides those who are triggered by these types of content. It is unnecessary to adopt a “if it doesn’t help everyone it doesn’t help at all” attitude. I include in this line of argument the assertion that those who would benefit from trigger warnings should be seeking treatment for their issues and working to overcome them. Again, that’s absolutely true, but I’m sure those individuals could benefit from both trigger warnings and other appropriate treatments.
The final line of argument that seems most common and the most genuine and bothers me the most. It argues that the use of trigger warnings contributes to a cultural hypersensitivity. That it displays a paranoia about giving offence. That it offers students an easy out and encourages struggling students to remain fragile. That the use of trigger warnings label students as victims. This line of reasoning is indicative of the way critics of Trigger Warnings perceive students in general. If students find some content offensive, they aren’t sensitive. They’re hyper sensitive. Far too sensitive to be acceptable - and its ruining our culture. Well, I don’t believe in this culture of hypersensitivity critics will warn you about, I believe in a culture that exists today that is insensitive to the suffering of others. I’m not paranoid about giving offence. I have concern for myself and my fellow classmates and hope our learning environment can promote our well-being and respect our diversity. I don’t think it’s easy for a student to choose between pursuing their education and managing their own well-being and personal circumstances. I don’t think there is an amount of encouragement anyone could give that could convince someone who experiences trauma, mental illness or any other personal struggle that suffering is something to be coveted. I also don’t think that students make a choice to remain needlessly fragile. Healing, from any harm, takes time. There is no expiration date on how long it is acceptable to be affected by your experiences. Most importantly, facing emotional struggle does not label someone a victim. Students are not choosing to wear that label, but those who oppose trigger warnings seem desperate to ascribe it to them!
Students are driven, hard-working, complex, diverse, passionate individuals and when we attend our classes together we become a community of peers. We pay our tuition, we choose our courses, programs, and degrees, we form opinions and we live our lives. It is not for critics or academia at large to decide what our academic environment should look like. It is not for critics to tell struggling students how they should manage that struggle. It is not for academia to assume that if I don’t take a certain class it’s because I am too lazy or too sensitive or that I don’t appreciate the intellectual and emotional challenges inherent to higher education. Because maybe I have been sexually assaulted, maybe I have mental illnesses like depression or general anxiety disorder, maybe I’ve suffered domestic abuse, maybe someone close to me has committed suicide, maybe I’m just more sensitive than the average student. Maybe all of this is true, maybe none of this is true, and maybe the truth is somewhere in between. Maybe this happened to me decades ago, maybe it happened yesterday. I’m the only one who knows and I’m the only one who should be making decisions about how these personal circumstances should affect my academic pursuits. As a member of a community of students, I hope the freedom to make these choices is afforded to all of us. Do I believe trigger warnings are necessary to protect that freedom? To be honest I’m not sure. What I am sure of is that these pejorative assumptions about students do not justify withholding a benefit students have requested to promote their own well-being and education.
an appeal from the decision of a case management judge ordering increased access for the respondent father to the parties’ 14 year old daughter (the “child”). The relevant terms provided the father with overnight access every Saturday night, daytime access every Sunday, evening access every Wednesday, and ten days of continuous access during a period of the father’s choosing during the summer. He also ordered that the child would have no contact with the mother during her time with the father. The mother appeals the overnight access, the summer access and the order precluding her from having contact with the child during access times ...
The case management judge had found that:
the mother’s efforts to alienate their daughters from the father have left him with “no meaningful relationship” with either of them. He further found that she has thwarted all efforts to rebuild those relationships and that, while the father is a good person who loves his daughters, they show no affection towards him, have no communication with him and exhibit fear in his presence. What time and relationship he had with the remaining child of the marriage had only diminished since he started mediation. In the case management judge’s view, this called for increasing the father’s access and directing that it would not be interrupted by communication between child and mother.
The Court of Appeal (Justices O'Brien, Brown, and Sulyma) denied the appeal. The judgment is short, so you can read it, if you want more details on the reasons.
Everytime we pass a new law or talk about passing a new law regulating elections here in Canada (or Alberta), I shudder. After all, one only has to look south of the border to see what it costs and takes to comply with all the election rules. Here is a story on point about the tea party challengers who are trying to dislodge incumbents are having a tough time finding lawyers who can even help them with the legal challenges.
Tired of our elected leaders lip-syncing the false choice between economic prosperity and environmental protection? Former U.S. Treasury Secretary and long-time Goldman Sachs Chair and C.E.O. Henry Paulson is. Read more about the economic case for mitigating climate change in my latest Sustainability Matters column here.
The movie is considered to be one of the best directed movies ever, and the three way duel standoff provides one of the greatest ending to an already action-packed film (although its more of Clint Eastwood versus Lee van Cleef):