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 There were protests against the legislation and at some point it was either repealed or no longer enforced.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 The act was eventually repealed at the request of Captain America.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.