This Friday and Saturday, Law Show, a not-for-profit variety show at the University of Alberta Faculty of Law will be performing “Alice in Wonderlaw”. Though many of us are familiar with the story of Alice in Wonderland, the name has a unique connotation when discussed in the context of the Canadian law. In the literal sense, Alice in Wonderland is a tale in the nonsense literary genre.1The story follows a young girl who falls down a rabbit hole, meeting interesting and strange characters on her journey to return home. Legally, courts in many countries have associated the title with laws which are illogical. The term has become associated with laws and policies which are unrealistic, imaginary or impossible to implement.
In Canada, Alice in Wonderland (AIW) comes into play when grappling with many aspects of our legal system. In the context of aboriginal law, AIW qualities are rampant in both specific and comprehensive aboriginal land claim litigation.2 In dealing with comprehensive claims, these qualities are seen from the Canadian and Quebec governments’ failures to honor the James Bay and Northern Quebec Settlement Agreement (JBNQA).3 In Namagoose v Robinson4, a court case that dealt with governmental non-compliance with the JBNQA, the Crown argued that the treaty was not statute nor was it ratified, so the government was not required to comply with its directives. In its decision, the court described the Crown’s argument as “ludicrous and incomprehensible”5, and therefore AIW-like.
Specific claims, unlike comprehensive aboriginal land claims, are based on a specific claim of non-compliance with a treaty provision;6 comprehensive claims are based on claims before British sovereignty. Specific claims are dealt with under the Specific Claims Tribunal Act7, for which the claims process has been deemed “Wonderlandish”.8 All claims under $150 million go through the tribunal, but the monetary worth of the claim has not yet been determined when that decision is made. How can a case be determined to claim less than $150 million, when the claim itself doesn't quantify an amount of money? Secondly, both the claim money, and administrative costs are paid out of the same grant. Therefore, it’s possible that the grant money has been spent on administration of the tribunal, leaving a dry pot for prevailing parties. In these respects, the government has channeled their inner Alice and gone down the rabbit hole with their policies and arguments, leaving all those involved in the dark.
AIW themes even take root in basic legal issues. Many legal scholars and professionals have criticized standard form terms on products and questioned whether they could really be contracts:
“Almost no one reads the terms… and for good reason: the product or service is necessary; the standard form will not be changed, since any attempt at negotiation would be futile; other suppliers are likely to insist on similar terms. As Radin says, there is an “Alice in Wonderland” quality in supposing that these forms are contracts.”9
In another another area, Alice is discussed in reference to photographic evidence in criminal trials. It is AIW-like, says D.S. Gardner, that x-ray evidence is admitted easily when it is impossible to ensure its accuracy.10 In contrast, photographic evidence is subject to a higher level of scrutiny even though each photo taken is independently verifiable.
All this is to say that that Canadian law is not perfect. There are many policies that are fantastical, arguments that do not make sense, and laws that are outdated and unrealistic. Alice appears in many areas of the law, and just like the Lewis Caroll tale, it is unlikely that she will go away anytime soon.
*Edited on February 1st.
1Randy J Maniloff, “Alice in Wonderland Provides Proof That the Legal System Makes No Sense”, LexisNexis Legal Newsroom (22 April 2014) online: <www.lexisnexis.com/legalnewsroom/insurance/b/insurance-coverage/archive/2014/04/22/alice-in-wonderland-provides-proof-that-the-legal-system-makes-no-sense.aspx?Redirected=true>.
2Michael Posluns, “Aboriginal Land Claims: The Alice in Wonderland Dimension of the Canadian Judicial System”, SLAW (27 October 2011), online: <http://www.slaw.ca/2011/10/27/aboriginal-land-claims-the-alice-in-wonderland-dimension-of-the-canadian-judicial-system/>.
3An Act Approving the Agreement Concerning James Bay and Northern Quebec, CQLR c C-67.
4Namagoose v Robinson, FCTD, 1991 FCJ No 904, action No T-451-91.
5Supra, note 2.
6Michael Posluns, “Specific Claims: The Alice in Wonderland Dimension of the Canadian Judicial System, Part 2”, SLAW, (25 January 2012), online: <http://www.slaw.ca/2012/01/25/specific-claims-the-alice-in-wonderland-dimension-of-the-canadian-judicial-system-part-2/>.
7Specific Claims Tribunal Act, SC 2008, c 22.
8Supra, note 6.
9Anthony Dugan, Jacob S. Ziegel & Jassmin Girgis, “Review Essay: The Problem of Standard Form Contracts: A Retreat to Formalism” (2013) 53:3 CBLJ 475 (WestlawNext Canada).
10Kent W. Roach et al, “Photographic Evidence: Its Probative Value at Trial and the Judicial Discretion to Exclude it From Evidence” (1973-1974) 16:2 CLQ 149 (WestlawNext Canada).