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,
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)
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)
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)
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)
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)
In support of Canada’s commitment to Reconciling its colonial history with Indigenous communities, this week we focus on Indigenous leaders during Confederation. Many Indigenous communities were displaced and disadvantaged as a result of colonialism and Confederation, and their stories are important to the development of Canada. We wrote about one well-known leader, Louis Riel, earlier this semester.
Today we biograph Red Crow, a chief of the Blood (or Kainai) Tribe who was a signatory to Treaty 7 in 1877. But signing Treaty 7 should not be considered his greatest achievement; his commitment was not to Confederation or the government but to his tribe. Treaty 7 seemed to present a promising future for Red Crow’s people.
Red Crow had several descriptive monikers, including Captured the Gun Inside, Lately Gone, and Sitting White Buffalo. He earned his Blood Tribe adult name, Mékaisto, as a warrior against other Indigenous bands and tribes. He was born around 1830 south of present-day Lethbridge, Alberta, and later died on August 28, 1900, in the same region. Red Crow’s band chose him as chief after his uncle and father died of smallpox in 1869. As a strong and respected leader in his community he eventually became the leading chief of several bands, representing the Blood Tribe at the signing of Treaty 7.
Red Crow saw his fair share of violence during his life. His reputation as a warrior began in his youth, and he participated in more than 30 wars and raids against other Indigenous groups and against American settlers. Historian Hugh Dempsey writes that, as an old man, Red Crow asserted that he had never been wounded in battle by a bullet, arrow, axe, spear, or knife.
Unfortunately, alcohol played a factor in the violence Red Crow experienced. Though his tribe traded with American whisky traders at first, the addictive and destructive effects of alcohol ultimately changed his tune. Red Crow worked alongside the North-West Mounted Police to try to end the otherwise convenient trade. Members of his community struggled with alcohol abuse and traded buffalo robes at a fraction of their value. Red Crow killed his own brother “during an alcohol-fuelled argument,” as well as two other Indigenous men who attacked him when they were intoxicated. Even one of his wives was killed as a bystander when an altercation arose between two intoxicated individuals.
According to Dempsey, in his report for Indigenous and Northern Affairs Canada, it is likely that Red Crow did not foresee the negative impacts that signing treaties would have on Indigenous communities. It appears that his decision, and that of other Indigenous leaders, was clouded by the immediate benefits that the new government provided and promised, but he failed to foresee the future of Indigenous struggles as a result of the reserve-land system.
As European communities continued to settle in Alberta, Red Crow realized that his community’s nomadic lifestyle would be a challenge under Confederation. He became a successful farmer and helped support his followers on newly endowed reserve land. As a respected warrior, local politician, and magistrate, Red Crow resolved disputes between the Blood, other tribes, and government agents. His interaction with government agents and, especially, his friendship with Mounted Police Commissioner James Farquharson Macleod spurred his acceptance of Treaty 7.
Red Crow realized that negotiation and treaties were necessary to create a peaceful future with other tribes and with the new Confederation government. However, his acceptance should not be mistaken for subservience or dependence on the government. Red Crow believed that as his community expanded their livelihoods through farming, ranching, and education, they would maintain their independence and pride. He respected modern education and Christianity, but believed in his traditional customs and religion. Unfortunately, living conditions for many rural reserve communities after Red Crow’s death would not have met his expectations.
Red Crow grew from a young, reckless warrior into a peaceful, patient negotiator, continuously demanding better living conditions for his band. His optimism and vision for future generations should serve as an inspiration in 2017 as we recognize #Canada150 and continue to work on #Reconciliation150.
 “Red Crow,” Native Leaders of Canada, New Federation House, online: <www.newfederation.org/Native_Leaders/Bios/Red_Crow.htm> [“Red Crow”].
 Municipal Plans and Bylaws, Oldman River Regional Services Commission, online: <www.orrsc.com/members-page/>. Group Photograph of Nitai’kihtsipimi, M’kaisto, and North Axe, Blackfoot Digital Library, online: <https://www.blackfootdigitallibrary.com/publication/group-photograph-nitaikihtsipimi-mekaisto-and-north-axe>; Hugh A Dempsey, “Mékaisto,” 12 Dictionary of Canadian Biography (1990), University of Toronto/Université Laval, online: biographi.ca <www.biographi.ca/en/bio/mekaisto_12E.html>.
 Dempsey, ibid.
 “Red Crow,” supra note 1.
 Historica Canada, “Red Crow,” Indigenous Peoples Collection, online: thecanadianencyclopedia.ca <www.thecanadianencyclopedia.ca/en/article/red-crow>.
 Dempsey, supra note 3.
 Canada, Indigenous and Northern Affairs Canada, Treaties and Historical Research Centre, “Treaty Research Report – Treaty Seven (1877),” by Hugh A Dempsey (1987), online: INAC <https://www.aadnc-aandc.gc.ca/eng/1100100028789/1100100028791> [INAC].
 Dempsey, supra note 3.
 Ibid; Historica Canada, supra note 7.
 “Red Crow,” supra note 1.
Posted by The BNA Act 1867 on March 13, 2017 at 08:30 AM in Aboriginal Law, American Law, Blog News and Stuff, Constitutional Law, Current Affairs, Economic Policies, Education, General Interest, History, Human Rights, Law in General, Law School and Students Issues, Lawyers, Legal History, Politics, Property Law, Scholarship | Permalink | Comments (0)
In the last year, there were several noteworthy sexual assault cases that gained significant media attention. Last week we met with Ms. Kim Campbell, who revised the sexual assault laws in 1993 when she was Minister of Justice.
Editors' Note: subsequent to filming, Justice Robin Camp has resigned from his position as a federal judge.
Posted by The BNA Act 1867 on March 10, 2017 at 08:00 AM in Constitutional Law, Courts & Judiciary, Criminal Law & Procedure, Current Affairs, Education, Evidence, General Interest, History, Judges, Law in General, Law School and Students Issues, Lawyers, Politics, Rule of Law | Permalink | Comments (0)
Today we expand on our Access-to-Justice themed week, with a discussion on Alberta’s court system. Today’s post emphasizes the role that the courts play in helping litigants navigate the legal process once they’ve been introduced to the system. When courts give better access to self-represented litigants, more people can afford to pursue a claim or defend a claim or charge before a judge.
We recently had the opportunity to interview the Honourable Judge Judith Shriar of the Provincial Court of Alberta. She sits in Calgary, as well as in regional areas near the city, on criminal and some civil matters.
Through her time on the bench, Judge Shriar has heard a variety of charges, litigants, and issues, though she noted that she hears a large number of drinking and driving related charges. Judge Shriar observed that men appear in her courtroom more often than women and she sees more younger defendants than older. She made special note that these demographics do not change drastically from urban to rural, or even reserve centres.
In our justice system, there is currently cause for concern for self-represented litigants to represent themselves in court. Judge Shriar noted that courts have implemented programs and resources to help litigants navigate the murky waters of the legal system. The Provincial Court has “done a great job of making tools available online for litigants to access,” Shriar said.
She further recognized that these resources have allowed self-represented litigants to become better equipped to handle their cases in court.
“I do think that people often do a good job on their own. Especially when people are unrepresented you see that people have really thought through their claim… they’re organized.”
However, there are always those who “slip through the cracks.” Sometimes a self-represented litigant faces an uphill battle during a dispute against a litigant with an experienced lawyer. When asked whether the judiciary has a responsibility to ensure that litigants are on equal playing fields, Judge Shriar confirmed that, though her jurisdiction to intervene is limited, she does what is appropriate within her position as an impartial judge to make litigants aware of the resources available to them, and even to step in when necessary to prevent gross injustices.
Another common area of concern is an increasing strain on limited court resources. Judge Shriar agrees that with respect to both manpower and infrastructure, the scarcity of court resources is an issue. In light of this problem Judge Shriar explained how Calgary’s Provincial Court has implemented programming to combat and mitigate the effects of diminishing resources.
She called Calgary’s Provincial Court a “leader across the province and the country,” when dealing with diminishing resources. For example, to deal with small overburdened rural courtrooms, regional dispositions are sometimes moved to Calgary. Setting aside a day for this purpose has helped to save time and effectively utilize the resources currently in place.
Another example is the Provincial Court's use of technology. For example, the court’s use of CCTV has reduced the need to transport parties and witnesses to courts. This eases the burden on support staff like sheriffs, clerks, and drivers.
When asked about the future of the courts and litigants’ ability to access and navigate them, Judge Shriar is optimistic. Since she was called to the bench, she has noticed many changes that increase both the efficiency of the court system and assist the courts in reaching appropriate verdicts. Specifically, technology and alternative dispute mechanisms have alleviated some of the pressures on the court system, while providing litigants with appropriate tools in which to solve their dispute.
However, more can be done.
We asked Judge Shriar what next steps the courts might take to continue to solve some of the issues individuals face when accessing the justice system. She said that, “the delay issue is critical. There were 15 charges dropped in Edmonton by a crown prosecutor to address these delay issues.”
“The courts do have a role to play in the process of helping to address root causes,” she said, and accordingly, we are likely to see an increase in “therapeutic courts, matrimonial courts, drug courts, and experimental programs.”
These measures will continue to funnel litigants out of the courtrooms while still providing them with the appropriate oversight. Solving disputes before trial, through programs such as mediation or judicial dispute resolution, saves both litigants and the courts time and money.
The Canadian justice system faces obstacles and challenges to provide fair and affordable access to its resources. It is clear at this point that Calgary’s Provincial Court has taken significant steps forward, leading Canada’s courts toward a future with a more accessible and balanced system of litigation and dispute resolution.
Posted by The BNA Act 1867 on March 08, 2017 at 08:30 AM in Aboriginal Law, Blog News and Stuff, Books, Civil Procedure, Constitutional Law, Courts & Judiciary, Criminal Law & Procedure, Current Affairs, Economic Policies, Education, Evidence, Family Law, Free Speech, General Interest, History, Human Rights, Judges, Law in General, Law School and Students Issues, Lawyers, Legal History, Literature, Politics, Rule of Law, Technology | Permalink | Comments (0)
Today, we explore a unique, local resource that facilitates access to justice. We met with Student Legal Services of Edmonton's Executive Coordinator, Neil Thomson, to find out more about the organization, what they do, and hear about just how much work they do by the numbers.
To conclude our week on education, we present our interview with the Honourable Marlin Schmidt, Minister of Advanced Education. Watch below to find out his views on education and federalism, as well as how post secondary education has changed since 1867.
Law schools are notoriously difficult to get into and the challenge increases over time as applications increase. Today’s post discusses the change in demographics in law schools since 1867. Only two Canadian law schools existed prior to Confederation; both in Quebec.
Women in Law
At, and shortly after, 1867 women could not participate in the legal system in what was then Upper Canada. Men exclusively ruled the law schools and the legal system until Clara Brett Martin came onto the scene. She petitioned the Law Society of Upper Canada to become the first female articling student but she was refused.1
However, like other influential women of her time, Martin was persistent. She refused to take no for an answer and introduced a provincial bill to allow women to attend law school and practice law.
In 1893, Martin’s conviction changed the legal profession forever.Her bill was passed, allowing women to be admitted to the law society as solicitors.2 Martin was admitted as a law student in the same year and helped pass legislation to allow women to become barristers. In 1897, she became the first female lawyer in the British Empire.
Martin opened the door for women to excel in law, which is reflected in Canadian law school demographics today. Since 2000 at the U of A, about half of all law students in the faculty are women.3
Aboriginal and Indigenous Lawyers
In 1954, William Wuttunee was the first Aboriginal person to graduate from law school in western Canada.4 A Cree man, Wuttunee worked tirelessly to develop Aboriginal law in Saskatchewan and later moved to the national scene.
On the west coast of Canada in BC, Aboriginal peoples were “pretty much restricted from becoming lawyers” until the 1950s.5 It was Alfred Scow who broke down that barrier, becoming both the first Indigenous law student and member of the bar in BC.6
Today, many law schools in Canada including the U of A have a separate application categories for Aboriginal law applicants. The schools recognize the persisting underrepresentation of Indigenous lawyers, and are working to correct the disparity.
Though Canadian law schools have admitted more women and Aboriginal students since 1867, admission remains difficult. While some schools like the University of Calgary have moved to a more wholistic approach to admission, high grades and LSAT scores remain important.
The average U of A law student admitted in 2016 had a GPA of 3.8 out of 4.0 (based on the last 2 years of post-secondary courses) and an LSAT score of 161 out of 180.7 The LSAT did not exist in 1867.8
In addition to the demographic diversity, the applicant pool continues to grow. In 1848, 23 men petitioned McGill University to create a law school.9 In the last few years, , McGill rejected over 80% of applicants and U of A rejected about 85%.10
1Constance Backhouse, Dictionary of Canadian Biography, (University of Torotono/Universite Laval, 2005) sub verbo “Martin, Clara Brett”, online: <www.biographi.ca/en/bio.php?id_nbr=7840>.
2John D. Blackwell, The Canadian Encylopedia, (2008) sub verbo “Clara Brett Martin”, online: <www.thecanadianencyclopedia.ca/en/article/clara-brett-martin/>.
3See the University of Alberta Faculty of Law JD Program FAQs, <www.ualberta.ca/law/admissions/juris-doctor/faq#WomenEnrolled>.
4Doug Cuthand, “Remembering William Wuttunee: Cree lawyer was a trailblazer”, CBC News (2 November, 2015), online: <www.cbc.ca/news/indigenous/remembering-bill-wuttunee-1.3300662>.
5Yolande Cole, “B.C. judge Alfred Scow remembered as “aboriginal pioneer”, The Georgia Straight (8 March 2013), online: <www.straight.com/news/360396/bc-judge-alfred-scow-remembered-aboriginal-pioneer>.
6Allison Griner, “Aboriginal lawyers stride in footsteps of legal pioneer” (25 March 2013), online: <thethunderbird.ca/2013/03/25/aboriginal-lawyers-stride-in-footsteps-of-legal-pioneer/>.
7See the University of Alberta Faculty of Law JD Program applicant profile tab, <www.ualberta.ca/law/admissions/juris-doctor/applicant-profile>.
8William P. LaPiana, “A History of the Law School Admission Council and the LSAT”, (Keynote Address delivered at the 1998 LSAC Annual Meeting, 28 May 1998) [unpublished], online: www.lsac.org/docs/default-source/publications-(lsac-resources)/history-lsac-lsat.pdf.
9See McGill Faculty of Law’s “Our history” webpage, http://www.mcgill.ca/law/about/history.
10See the University of Alberta Faculty of Law JD Program FAQs, <www.ualberta.ca/law/admissions/juris-doctor/faq#AverageScores>.
Posted by The BNA Act 1867 on March 01, 2017 at 08:30 AM in Aboriginal Law, American Law, Blog News and Stuff, Books, Constitutional Law, Corporate Law, Courts & Judiciary, Current Affairs, Economic Policies, Education, Film, Free Speech, General Interest, History, Human Rights, Law in General, Law School and Students Issues, Lawyers, Legal History, Municipal Law, Politics, Rule of Law | Permalink | Comments (0)
To continue our education themed week, we explore legal education in Canada. Today we compare the increase in availability of legal education between 1867 and 2017. Legal education has certainly expanded over the last 150 years and we’ll provide a small glimpse of just how much.
In 2017, prospective law students have several options of cities, provinces, and institutions to pursue their legal education. There are currently 20 fully approved Canadian law schools, offering both common law and civil law programs.1 Further, Trinity Western University is considered a new law school and will obtain full approval by the Federation of Law Societies of Canada once their students graduate.2
Prospective students can choose from a wide variety of schools and are able to base their decisions on several factors. Maybe one school is in their hometown? Maybe they are interested in a certain area of law that one school specializes in? Or perhaps they base their choice on reputation? Regardless of what a student is seeking out of their legal education, Canada’s law schools offer many options. If we flashback to 1867 a different picture existed.
The oldest law faculty in Canada is at McGill University, which formally opened in 1848.3 The school opened in response to young professionals who had been independently pursuing legal education and sought classes in a formal program.4
The first common law school in Canada opened 16 years after Confederation. Dalhousie’s Schulich School of Law opened its doors in 1883 and “became the model for law schools across Canada and across the British Commonwealth.”5 At the time of Confederation individuals seeking a formal law school education only had McGill as an option. Otherwise, they needed to take classes informally.
The University of Alberta is western Canada’s oldest law school, but did not exist at the time of Confederation. There was a large influx of eastern settlers during the 1880s. Many of them were professionals, including lawyers.6 By 1898, the Law Society of the Territories formed and created a formal articling process.7 The province of Alberta formed in 1905 and the University of Alberta officially opened its doors in 1908.8 At that time, the law school was being developed but had not officially opened its doors. The Faculty of Law officially began offering a Bachelor of Laws degree in 1912.9
The University of Alberta’s first class only consisted of 8 students, but by the second year 50 students were registered in the program.10 Although the enrolment numbers increased substantially within a year, they are minuscule compared with the 180 new first-year students the faculty admits currently. Further, when the faculty opened, students were mainly taught through on-the-job articling training right away, and students only took classes part time.11 Now students are expected to take 3 years of full-time academic training before beginning their formal articling experience.
Legal education is increasingly growing in Canada. Every province, excluding Newfoundland and PEI, now houses at least one law school, with future institutions always becoming a possibility. With more locations to study and areas to specialize the possibilities for what legal education can expand into is endless.
1 “Canadian Law School Programs” (2017), Federation of Law Socities of Canada, online: <ww.flsc.ca/national-initiatives/canadian-law-school-programs/>.
3 “History of the McGill Faculty of Law” (2017), McGill Faculty of Law, online: <www.mcgill.ca/law/about/history>.
5 “History & Tradition” (2017), Schulich School of Law, online: <www.dal.ca/faculty/law/about/history-of-schulich-school-of-law.html>.
6 “History of the Faculty of Law” (2017), University of Alberta Faculty of Law, online: <www.ualberta.ca/law/about/history>.
This week, as students at the University of Alberta Faculty of Law return to classes after Reading Break, The Dominion explores education in Canada. Today we make the case for strengthening Indigenous culture and history in Canadian school curricula and is in support of Calls to Action 7 to 16 of the Truth and Reconciliation Commission of Canada.
By excluding Indigenous culture and experience from school curricula we minimize the experiences of First Nations people. This makes it more difficult to break the “ripple effects” of our colonial past. Last semester we wrote about Canada’s coercive assimilation policy under the Indian Act and the cultural genocide of residential schools. As many Canadians celebrate 150 years of the “birth” of their nation, they must be mindful of the original communities that colonists displaced. The effects of residential school abuse and forced adoption trauma remain with many survivors today and continue to impact subsequent generations.
Over the last 150 years, Canada created a hostile living environment for many First Nations people. Therefore, some Canadians note that the word “celebrate” does a disservice to people whose lives were impaired under the Indian Act. Stephen Paquette is co-chair of Ontario’s Halton District School Board’s Indigenous Education Advisory Council. Paquette suggested to Prime Minister Justin Trudeau and Ontario Premier Kathleen Wynne that we replace the word “celebrating” with “acknowledging.”
Section 93 of the Constitution Act, 1867 gives provincial legislatures the jurisdiction to manage education. The federal government has jurisdiction over education that occurs on federal First Nations reserves. Unfortunately, federal per-student funding for First Nations students is less than the average provincial per-student funding for off-reserve education.
In her article on transforming education in First Nations communities, Jessica Ball notes that incorporating into education Indigenous knowledge alongside Eurowestern theory, research, and practice can improve the education and employment positions of First Nations children. Compared to the overall population, the First Nations population is young: 40% are under age 20. This suggests that First Nations communities have a wealth of young minds to offer society.
Considering the recent history of residential schools and forced adoption, all Canadians can benefit from an inclusion of Indigenous knowledge. For Canada150, we can celebrate the Canada of which we are proud. But we can’t ignore the sacrifices that many families endured at the hands of colonial education systems. By “acknowledging” instead of “celebrating”, it forces us to recognize that our colonial government 150 years ago made some mistakes by attempting to manage the Indigenous population. Click here for ways that you can engage in reconciliation.
 Robert Laboucane, “Canada’s Aboriginal Education Crisis” (2010) 28:7 Windspeaker, online: The Aboriginal Multi-Media Society < http://www.ammsa.com/publications/windspeaker/canada%E2%80%99s-aboriginal-education-crisis-column>.
 Doreen Nicoll, “Canada 150: What’s for Indigenous People to ‘Celebrate,” exactly?” Now Toronto (22 February 2017), online: NOW Communications Inc <https://nowtoronto.com/news/canada-150-what-s-to-celebrate-for-indigenous-people/>.
 RSC, 1984, c I-5.
 30 & 31 Victoria, c 3 (UK).
 Ibid, s 91(24).
 Laboucane, supra note 1 ; Don Drummond & Ellen Kachuck Rosenbluth, “The Debate on First Nations Education Funding: Mind the Gap” (2013) School of Policy Studies, Queen’s University, Working Paper No 49, online: https://qspace.library.queensu.ca/bitstream/handle/1974/14846/Drummond_et_al_2013_Debate_on_First_Nations.pdf;jsessionid=47F565DE66243A277E4D98969FAAE902?sequence=1>. But see Ravina Bains, Myths and Realities of First Nations Education (2014) Fraser Institute Centre for Aboriginal Policy Studies, online: Fraser Institute https://www.fraserinstitute.org/sites/default/files/myths-and-realities-of-first-nations-education.pdf> (“elementary and secondary students on reserve receive on average the same amount as other Canadian students, an in some cases more”).
 Jessica Ball, “As if Indigenous Knowledge and Communities Mattered: Transformative Education in First Nations Communities in Canada,” 28:3 The American Indian Quarterly 454, online: <https://doi.org/10.1353/aiq.2004.0090>.
 Ibid at 455.
Posted by The BNA Act 1867 on February 27, 2017 at 10:29 AM in Aboriginal Law, Blog News and Stuff, Constitutional Law, Current Affairs, Economic Policies, Education, General Interest, History, Human Rights, Law in General, Law School and Students Issues, Lawyers, Legal History, Politics, Scholarship | Permalink | Comments (0)