University of Alberta Faculty of Law Blog

Halloween on the Plains of Abraham: Québec Tourism and History

Joyeux Halloween, Mesdames et Monsieurs!

This week, we focus on how the BNA Act and the Constitution Act, 1982, affected Québec. The Dominion team chose this week to focus on Québecois history under Confederation because Friday, November 4th, marks the 35th anniversary of “la nuit des longs couteaux”, or “the night of the long knives”, when Minister of Justice Jean Chrétien (as he then was) met with all the provincial premiers… except Québec Premier René Lévesque.

That’s a scandalous story for later this week, but today, we kick off Québec week by reviewing the Battle of the Plains of Abraham of 1759. Incidentally, every year the City of Québec throws a spooky Halloween party in the Joan of Arc Gardens at the Plains of Abraham. The Plains are Canada’s oldest national historic park, likely named for Abraham “the Scot” Martin, a sailor and fisherman friend to Samuel de Champlain.[1] If you’ve visited Québec City, you’ll likely agree it is aesthetically impressive. Because of its coveted geographic position, France had built up remarkable fortifications around the city to prevent the inevitable British invasion.

During the Seven Years’ War from 1756 to 1763, the British and French colonial forces were vying for economic and territorial expansion in many areas, including North America.[2] The battle at Québec City was for a strategic position in the region. Québec City was the cornerstone of what was known as New France at the time. Recognizing its importance in international ship trade, its access to waterways, and its significance in the fur trade, British forces attempted to siege the city several times.[3] The 1759 Battle of the Plains of Abraham and the 1960 Battle of Sainte-Foy nearby sealed the fate of New France’s subordination to British rule, leading to Québec’s subordination to British confederation 100 years later.

It is estimated that up to 20,000 men rallied to fight for the French Army, which was approximately one third of the population in New France at the time.[4] Unfortunately, despite the high numbers of French fighters, the majority were unprofessional militiamen, with only about 3,700 troops (including approximately 1,800 Indigenous allies) regularly manning the fronts. The British Army’s well-trained professional soldiers only needed about 4,400 regularly placed troops to defeat the French in less than half an hour on the Plains.[5] Both the French and English Generals died from their injuries in the battle.

The French Army surrendered the City just a few days later. Despite the city’s strong fortifications, the French were not confident that the city could withstand British attack. Pressure from residents to surrender was enormous.[6] The French Army decided that it was better to negotiate a surrender than to risk more casualties and destruction to the city. One third of private residences had already been burned down and many more needed drastic repair. Almost all public buildings had been damaged. The formerly French citizens now had to swear allegiance to the British Crown and struggled to maintain their religious freedom.

Compared with most cities in Canada that developed over the last 150 years, Québec boasts a history evident in its architecture. Beautiful stone and brick structures remind one of centuries-old European cities. The fortified walls leave a legacy of the battles for control of this strategic city on the St. Lawrence River. If you have the chance to visit, check out Halloween on the Plains of Abraham from October 1st to November 6. There are Halloween decorations in the parks, haunted tours for families, spooky stories for older children, and scary historical legends and tours for adults.[7] The tours are available in English upon request.

Cordialement,

Le Dominion du Canada 2017

 

[1] “Plains of Abraham (Battlefields Park)”, National Battlefieds Commission, online: <www.quebecregion.com/en/historic-sites/plains-of-abraham-battlefields-park>; “The Tale of a Toponym”, National Battlefields Commission, online: <www.ccbn-nbc.gc.ca/en/history-heritage/site-history/illustrious-park>.

[2] “Plains of Abraham”, National Battlefields Commission, online: <http://www.ccbn-nbc.gc.ca/en/>.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] “Halloween”, Plains of Abraham, National Battlefields Commission, online: <www.ccbn-nbc.gc.ca/en/activities/halloween/>.

Interview with Professor Craig Jones about Insite's Charter Challenge

Dear Sir or Madam; today finishes our discussion of vices falling under constitutional law.

Professor Craig E. Jones, Q.C., of Thompson Rivers University Faculty of Law, worked as lead counsel for the British Columbia Ministry of Justice and Attorney General from 2006 to 2012. In 2011, he argued on behalf of the Ministry at the Supreme Court of Canada on the Canada (Attorney General) v. PHS Community Services Society.[1] This case is sometimes referred to as the "Insite" case because it concerned the legality of the Insite clinic, PHS Community Services Society's operation of Vancouver's Downtown Eastside safe-injection site.[2]

The Dominion was grateful to speak with Professor Jones on this issue that he has always been passionate about. He has an incredible background studying, teaching, and practicing in several areas of law. He earned his law degree at UBC, his Master's Degree in Law at Harvard, and now teaches law at Thompson Rivers University, where he also earned his bachelor's degree. He has taught courses in torts, civil procedure, advanced advocacy, class actions, and ethics. Professor Jones maintains his law practice as an active member of the Law Society of British Columbia, working in legal consultation and litigation with a Vancouver firm. He is an expert in constitutional law and has litigated and consulted on other notable constitutional issues including British Columbia v Imperial Tobacco, the Braidwood Inquiry into the YVR Airport death of Robert Dziekanski, the Polygamy Reference, the Missing Women Commission of Inquiry, and the “Occupy Vancouver” courthouse-access case.[3] 

PHS Community Services Society (PHS) and Vancouver Coastal Health, under the authority of the Ministry of Health, opened the Insite safe injection clinic in 2003. It provides a safe, clean location in a troubled neighbourhood where people with drug addictions can self-inject narcotics with clean, fresh needles. The clinic serves to combat drug overdoses on the street and rates of intravenous drug-use infections. Typically, possessing illegal narcotics is a crime and allowing individuals to use illegal narcotics in a medical facility is as well. But section 56 of the federal Controlled Drugs and Substances Act (CDSA) allows the federal Minister of Health to issue an exemption for valid health purposes, allowing the clinic to oversee safe narcotic injections and provide immediate medical intervention.[4] 

From 2003 to 2008, the federal Minister of Health continued to issue this exemption. But in 2008, under the Conservative government, a new Minister declined to renew the exemption. This resulted in Insite's operations being deemed illegal. To continue operating, PHS launched a constitutional challenge at the Supreme Court of British Columbia. Ultimately, the Supreme Court of Canada ordered the federal government to continue to renew the exemption.

PHS and the Attorney General for British Columbia (with Professor Jones as lead counsel) challenged the federal government's decision based on two points of constitutional law. One was Interjurisdictional Immunity, advanced by both PHS and the Attorney General. The other was PHS's Charter of Rights and Freedoms section 7 argument.

In Canada's federal system, ss. 91 and 92 divide the distribution of powers to the federal and provincial governments, respectively. The goal is to avoid the federal government asserting authority over a provincial mandate (and vice versa). PHS and the Attorney General of British Columbia advanced the argument that the federal government's criminal power was encroaching on the province's health power. This Interjurisdictional Immunity argument failed at the Supreme Court because the Court declined to narrow the core of the federal criminal power and the provincial health power such that the two cannot overlap. Therefore, the Court found in favour of another constitutional law principle: that, in this case, the more flexible doctrines of double aspect and flexible federalism are more applicable to managing health care that comes in contact with criminal law. 

Fortunately for the users of Insite, the Court found in favour of PHS's s. 7 Charter argument; that the federal Minister's decision breached the fundamental principles of justice with no reasonable justification. Section 7 protects the life, liberty, and security of the person of individuals who depend on the clinic. Insite operates to advance valid health concerns; it reduces harm and medical emergencies to individuals and the community. Because Insite operates under the same purpose as the CDSA, to maintain and promote public health and safety, the federal Minister of Health had inappropriately arbitrarily condemned it.

What are your thoughts on harm reduction initiatives in our communities? Do you agree with the government's decision to criminalize Insite's operations? Comment below!

With humble regards,

The Dominion

 

[1] 2011 SCC 44, [2011] 3 SCR 134.

[2] Supervised Injection, Vancouver Coastal Health, online: <www.vch.ca/your-health/health-topics/supervised-injection>.

[3] Thompson Rivers University Faculty of Law, "Craig E Jones, QC," Faculty, online: <www.tru.ca/law/faculty-staff/faculty/jones.html>.

[4] SC 1996, c 19.

Eat Local, Shop Local, Invest Local?

Is Canada entering a new era of slow-growth? If so, what does this mean for how we think about economic development? It might mean implementing new ways to support small to medium-sized local businesses. Not just start-ups with the potential for exponential growth, but the “mom and pop” businesses which provide local employment and keep small town main streets vibrant. In recent years, it has become fashionable to “eat local”. Perhaps it’s time for more Canadians to “invest local” as well.

Like eating local, investing local has important limits, particularly in a northern country with a commodity-based economy. It makes sense for Canadians to invest a substantial portion of their savings in other economies because it diversifies their investment risk. But, as calculated by Momentum, a Calgary-based organization focused on community economic development, if Albertans invested 2% of their RRSP contributions locally that would be $114 million dollars to spread around to local businesses for expansion or upgrades. These investments can generate a modest financial return on investment, but, perhaps more importantly, are likely to generate a significant social return in the form of creating and maintaining local employment, and local access to goods and services.

Investing locally requires an appropriate investment vehicle. Crowdfunding is one way that small local businesses can try to access investment dollars. Although it seems likely that Alberta will adopt new crowdfunding rules recently implemented by other provincial securities regulators, I’m not sure crowdfunding will make sense for many small business owners.

A “community economic development investment fund” or CEDIF is a pool of capital, raised through the sale of shares in the fund, with a mandate to invest in a number of local active businesses. CEDIFs could be used in Alberta to facilitate local investment. CEDIFs have been used in Nova Scotia for over a decade, raising tens of millions of dollars for a variety of local businesses, from coffee roasters to wind farms. In Nova Scotia, investing in CEDIFs is facilitated through exemptions for CEDIFs from disclosure and other requirements that otherwise would apply to distributing shares in an investment fund under provincial securities regulations. This past summer, Courtney Hare, Public Policy Manager of Momentum, and I, with research help from UofA 2L Arooj Shah, made the case for a similar exemption in Alberta. You can access the full policy brief, “Enabling Local Investing in Alberta: The Role of Community Economic Development Investment Funds (CEDIFs)”, here.

If we are in a new era of slow growth, the road ahead for Alberta and the rest of Canada is unclear. It seems likely, however, that it will require more academic attention on community economic development initiatives like CEDIFs and making sure that the capital markets work for national, provincial and local economies.

HalLAWeen edition: No More Clowning Around

This weekend, Canadians of all ages will be carving pumpkins into jack-o-lanterns, watching scary movies, and venturing into haunted houses for the annual celebration of all things that go bump in the night, Halloween. But in light of the “2016 Great Clown Scare”, one particular Halloween tradition – wearing costumes– is becoming a source of concern.

What is this creepy clown movement and how does it tie into Canadian Constitutional law you ask?

This past August, two clowns approached a boy near his apartment complex in South Carolina, attempting to lure him into a seemingly abandoned house in the woods.[1] Instead of being a disturbing but isolated incident, the boy became patient zero in a global outbreak of people dressed as clowns seeking to unsettle, scare, or even hurt others. In the last few months, clown sightings in incongruous places have occurred across North America, Europe, Australasia, and South America.[2] Since the first sighting, there have been reports in 44 American states; prompting even McDonald’s to reduce the profile of their mascot of over 50 years, Ronald McDonald.[3]

In Arizona there was a robbery with armed men dressed as clowns. In another incident in Michigan, a hotel was held up at gun point.[4] In Kentucky, a woman reported that a clown came out of the woods while she was on an evening walk, and attempted to assault her and drag her into the woods.[5] Many more sightings have been nothing more than that, sightings. Clowns popping up across the country, standing near schools intending to scare others.

In Canada, at least 7 provinces and 1 territory have reported sightings. In Edmonton a school went into lockdown for over 90 minutes after a violent threat over social media.[6]  Even as recently as Oct. 25th, a woman in central alberta posted on facebook about a sighting.[7] These instances and others have prompted schools in Fort McMurray and Prince George to ban clown outfits, even for Halloween.[8]

But is this ban constitutionally permitted? What are the legal ramifications of this behaviour? Police can charge many of these people under criminal offences such as mischief, trespass, and harassment. However many of these people intend to scare but don’t actually engage in any criminal activity. Section 2(b) of the Canadian Charter of Rights and Freedoms establishes that the freedom of expression protects any act intended to convey meaning. Though unsettling, it is completely legal to wear a clown costume without engaging in criminal activity.

What about banning clown costumes in schools? Section 93 of the Constitution gives every province the power to pass laws in relation to education. Provinces delegate local governance to school boards, which require schools to impose a dress code.[9] If a school imposes a clown costume ban, a student could complain to the local adjudicative body that hears dress-code complaints, ie school boards, human rights tribunals and courts. The body would need to balance the rights and interests of an individual student against that of the public. The Supreme Court has not heard a case that challenges a non-religious dress code complaint under section 2(b), so it would be impossible to say for sure whether or not a clown costume would be protected under the section.

A few thoughts on where this came from

Some people have cited the remake of Stephen King's classic, “It,” as the reason for all this clown chaos. Others have have suggested that it is not a coincidence that the clown craze is occurring so close to the American election. One Sociologist specializing in mass hysteria said the current clown scare is a result of two rising forces in the US: “social media, and a fear of otherness, whether it arrives in a white Mercedes or a refugee boat.”[10]

Whatever the reason for this influx of unsettling clowns, one thing is for sure, 2016 has given us many more reasons to be coulrophobic. Though the majority of these sightings have sought to unsettle and scare, not to hurt, keep an eye out and be careful as you venture out for trick or treating this year!

Your humble and a bit scared servant,

The Dominion

 

[1] Andrew Russell, “‘Creepy Clown’ sightings: Why the epidemic is spreading across Canada and the U.S.”, Global News (07 October 2016), online: <http://globalnews.ca/news/2990008/creepy-clown-sightings-why-the-epidemic-is-spreading-across-canada-and-the-u-s/>

[2] Clark Mindock, “'Killer Clown' Sightings Global Map 2016: Timeline Of The Creepy Phenomenon Of Threats, Arrests, School Closings And False Alarms”, IBT. (10 October 2016), online: <http://www.ibtimes.com/killer-clown-sightings-global-map-2016-timeline-creepy-phenomenon-threats-arrests-2429124>

[3] Elle Hunt, “'Clown sightings: Ronald McDonald keeps low profile amid creepy craze”, IBT. (12 October 2016), online: <https://www.theguardian.com/culture/2016/oct/12/clown-sightings-ronald-mcdonald-keeps-low-profile-amid-creepy-craze>

[4] John Steckroth, “Embassy Suites in Livonia robbed at gunpoint by man wearing clown mask”, Click On Detroit. (06 October 2016), online: <http://www.clickondetroit.com/news/embassy-suites-in-livonia-robbed-at-gunpoint-by-man-wearing-clown-mask>

[5] “Police investigating report of a woman attacked by man in clown mask in Winchester, Ky.”, WDRB. (01 October 2016), online: <http://www.wdrb.com/story/33293981/police-woman-attacked-by-man-in-clown-mask-in-winchester-ky>

[6] Paige Parsons, “Suspect arrested after lockdown at Harry Ainlay High School, 'creepy clown' causes social media scare”, Edmonton Journal. (05 October 2016), online: <https://www.google.ca/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=edmonton%20clown%20lockdown>

[7] Ibid.

[8] Danielle Nerman, "No more clowning around: Creepy costumes banned at Fort McMurray public schools" (24 October 2016), online: <http://www.cbc.ca/news/canada/calgary/clown-costumes-banned-fort-mcmurray-1.3818802>

[9]  “What is a School Dress Code?”, FindLaw Canada online: <http://constitutional.findlaw.ca/article/what-is-a-school-dress-code/>

[10] Mathew Teague, "Clown sightings: the day the craze began", The Guardian (08 October 2016), online: <https://www.theguardian.com/culture/2016/oct/05/clown-sightings-south-carolina-alabama>

Shuffle Up and Deal!

Ladies and Gentlemen,

The Dominion has chosen their resident poker "expert" to craft today's offering: a post regarding gambling.  With this in mind, we apologize in advance for the full house of lame poker puns contained within.

As we recognize the importance of not limiting our exploration of the rights of Indigenous Canadians to a single week, we will continue to explore this theme throughout this project.  Today, we look at R v Pamajewon¹, which outlines how an Aboriginal group's pocket aces² got rolled by a gutshot straight draw³ on the river⁴.

Specifically, Pamajewon deals with s. 35(1) of the Constitution Act, 1982⁵, which guarantees the right to Aboriginal self-government, while balanced with the possible limitations thereof.

The First Nations of Shawanaga and Eagle Lake had unilaterally passed laws that permitted gambling on their reserves, assuming that the deck had been stacked in their favour.  After all, they had s. 35(1) on their side, which reads:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed⁶.

As in poker, with constitutional litigation, there is always an element of chance.  In this case, it took the form of the Supreme Court of Canada applying the precedent decided in R v Van der Peet⁷ to the facts.  Van der Peet set a test for what qualifies as an "existing aboriginal and treaty right".  The test is best explained by using the sub-headings that come under the heading entitled "Factors to be Considered in Application of the Integral to a Distinctive Culture Test" within the ruling as follows:

Courts must take into account the perspective of Aboriginal peoples themselves
Courts must identify precisely the nature of the claim being made in determining whether an Aboriginal claimant has demonstrated the existence of an Aboriginal right
In order to be integral a practice, custom or tradition must be of central significance to the Aboriginal society in question
The practices, customs and traditions which constitute Aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact
Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating Aboriginal claims
Claims to Aboriginal rights must be adjudicated on a specific rather than general basis
For a practice, custom or tradition to constitute an Aboriginal right it must be of independent significance to the Aboriginal culture in which it exists
The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct
The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence.
Courts must take into account both the relationship of Aboriginal peoples to the land and the distinctive societies and cultures of Aboriginal peoples⁸.

This test, when applied to the facts of Pamajewon, ended up with the chips falling in favour of the Crown.  The Supreme Court of Canada found that the right of self government was to be determined as it related to specific activities, in this case, the regulation of high-stakes gambling⁹.  The Court further found that such activity was not actually "an integral part of the distinctive cultures of the Shawanaga or Eagle Lake First Nations"¹⁰.

In summary, it is worth noting that, in law or in games of chance, there are very few sure bets.  A solid straight right off the flop¹¹ can end up being a losing hand to a flush¹² that shows up as the last card hits the table¹³.  We will leave you with the words of an actual poker expert, in the form of a quote that accurately sums up today's post so eloquently that we would not at all be offended if you skipped right to it:

Poker is a microcosm of all we admire and disdain about capitalism and democracy. It can be rough-hewn or polished, warm or cold, charitable and caring or hard and impersonal. It is fickle and elusive, but ultimately it is fair, and right, and just¹⁴.

 

Your Most Humble and Obedient Servants,

The Dominion

 

¹ [1996] 2 SCR 821 [Pamajewon].
² A pair of aces dealt solely and secretly to a single player; the best starting hand in Texas Hold’em, a popular variant of poker.
³ Also known as an “inside straight draw”; when a player has four cards for a straight, but is missing one of the ones on the inside.  For example, 4, 5, 7, and 8; requiring the 6 to complete the hand.
⁴ The last communal card dealt in Texas Hold’em.
⁵ Being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35(1).
⁶ Ibid.
⁷ [1996] 2 SCR 507 [Van der Peet].  
⁸ Ibid at paras 48-75
⁹ Supra note 2 at para 27.
¹⁰ Ibid at para 28.
¹¹ The first three communal cards dealt in Texas Hold’em.
¹² Five cards of the same suit.
¹³ This is known as a “bad beat”, and most poker players will talk your ear off with these kinds of stories if you permit them to.
¹⁴ Lou Krieger, More Hold'Em Excellence: A Winner for Life? (ConJelCo LLC, 1999) at 4.

Taylor Swift's Advice to Aspiring Singers

Vogue's 73 questions series is quite good at getting interesting tidbits out of celebrities. In this interview with Taylor Swift, she gets the usual interesting questions (watch the whole thing - it is good), but around minute 5.57 she gets asked what advice she would someone who wants to be a singer! Watch around then for the answer:

 

Legalization and Regulation: What the History of Alcohol Can Tell Us About the Future of Marijuana

Dear Sir or Madam,

Yesterday, we started our week on vices with an exploration of Canada’s brief flirtation with prohibition of alcohol. Today, we look at some cases regarding alcohol prohibition and what they may tell us about marijuana prohibition. We will make sense of some of the things that have been said about the upcoming legalization and regulation of marijuana.

As we’ve discussed previously, the British North America Act [BNA Act] divides powers between the federal and provincial governments.¹ Marijuana is currently under federal jurisdiction as part of the Controlled Drugs and Substances Act.² Why, then, are some provincial leaders such as Ontario’s Kathleen Wynne talking about their visions for how marijuana will be regulated in their jurisdictions?³ The answer is the double aspect doctrine. Some, complicated issues including mind-altering substances fit into heads of power under both s 91 and s 92.

Russel v The Queen is a case from the 1880s in which federal legislation permitting municipalities to allow or disallow the sale of alcohol was challenged. The Privy Council held that this law is a valid use of both the POGG (Peace, Order and Good Government) power and the s 91(27) criminal law power. (Come back during judiciary week next month to find out why it was the British Privy Council rather than the Supreme Court of Canada making this decision.) Alcohol was something that was a potential national issue, and banning sales was criminal law.⁴

This was interpreted by some people to mean that alcohol was a federal issue and provinces had no jurisdiction. Hodge v The Queen challenged provincial liquor sales regulation soon after Russel. This led the Privy Council to clarify their earlier decision. Alcohol falls under double aspect doctrine, meaning that the federal government could ban or allow it, but when it is allowed any regulations fall under provincial jurisdiction through s 92(13).⁵ This division of responsibility has been upheld in recent decades with a finding of invalidity regarding federal regulations on the labelling of “light beer”.⁶

This does not mean that the federal government will not try to keep the regulation of marijuana (and therefore its tax revenue) under their control. They have been running consultations regarding what regulation models people and stakeholders would prefer.⁷ The federal government could justify regulation under the POGG power, but it would certainly be challenged by the provinces. In order to invoke POGG, they would have to prove to the Supreme Court that there is  something special about marijuana that would make the individual provinces unable to properly manage it.⁸

The federal and provincial governments are always trying to carve more power away from each other. This is especially true when we have new areas or major changes in law. It is too early to be sure exactly which level of government will end up with control. But as always with the law precedent can  provide us with clues.

Your Humble and Obedient Servants,

The Dominion

¹Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91-92, reprinted in RSC 1985, Appendix II, No 5.

²Controlled Drugs and Substances Act, SC 1996, Schedule II, s 1.

³Robert Benzie, “Weed Sales Should be Restricted to LCBO: Wynne”, The Star (21 June 2016), online: <www.thestar.com>.

⁴Russel v The Queen (1882), 7 AC 829 (PC).

⁵Hodge v The Queen (1883), 9 AC 117 (PC); aff’g (1882), 7 OAR 246; rev’g (1881), 46 UCQB 141 (Ont HC).

⁶Labatt Breweries of Canada Ltd v AG Canada, [1980] 1 SCR 914, 110 DLR (3d) 594.

⁷Government of Canada, News Release, “Government of Canada moves forward on Marijuana Legalization and Regulation”, (30 June 2916), online: Government of Canada News <www.news.gc.ca>.

⁸General Motors of Canada Ltd v City National Leasing, [1989] 1 SCR 641, 58 DLR (4th) 255.

Stop trying to make Prohibition happen, it's never going to happen.

Dear Sir or Madam:

Can you imagine a glass of wine at the end of a long work week being not only frowned upon, but outlawed? Can you imagine having a wine and cheese, but the wine had to be non-alcoholic? What about a society where wine tours, and craft beer tastings were banned by the government? Consuming alcohol is very much the status quo in our society, with many people choosing to consume alcohol in moderation. Though if we flashback to the late 1800s and early 1900s, the practice was not as widely accepted.

Prohibition is often associated with the United States’ decision to completely bar alcohol consumption, sales and distribution. The prohibition movement was an international phenomenon beginning in the late 19th century, with countries ranging from long-standing periods of prohibition (i.e. The United States) to more moderate regimes (i.e. Canada).¹ Canada was actually the first country to have a referendum regarding alcohol prohibition.² Prime Minister Laurier called the referendum in 1898, with 51% of the population voting in favour of prohibiting alcohol sales and consumption in the country.³ Although a narrow majority was in favour of prohibition, the government decided against passing a prohibition law because Quebec was vehemently against it.⁴ In fact, national prohibition only occurred as a war measure during the First World War.⁵ Today’s post will examine a brief history of the prohibition movement in Canada, and discuss why prohibition failed.

Prohibition first began with a movement towards alcohol temperance. The temperance movement was an international campaign promoting abstinence from alcohol, with proponents believing alcohol consumption was responsible for “society’s ills.”⁶ In Canada, “temperance societies" (collections of individuals who believed in the movement) formulated around 1827, with members tolerating moderate consumption of beer and wine.⁷ The main temperance advocates during the 19th century were the Dominion Alliance for Total Suppression of the Liquor Traffic and the Woman’s Christian Temperance Union.⁸ Gradually these societies shifted their values, advocating for a total prohibition.⁹

The Dunkin Act, 1864 was one of the first pieces of legislation to address prohibition. The Dunkin Act allowed municipal governments within the Province of Canada to prohibit retail sales of alcohol.¹⁰ The Canada Temperance Act of 1878 extended this local retail prohibition option to the entire Dominion after Confederation.¹¹ Therefore, prohibition implementation was left largely to local governments in the early stages.

Provincially, the first attempt at prohibition occurred just before the First World War.¹² Provinces banned alcohol at this time as a social sacrifice to help the war effort across the pond.¹³ A few years later, the federal government followed the provinces and enacted national prohibition in 1918 under the War Measures Act, 1914.¹⁴ The federal government believed that prohibiting the manufacturing and importation of alcohol would help the war effort by promoting the economy and conserving financial resources.¹⁵

Although there were small victories for prohibition supporters in Canada, the concept largely failed. Prohibition was more difficult to implement in Canada than the United States due to jurisdictional conflicts over alcohol regulation.¹⁶ The federal government has jurisdiction over the manufacturing and trading of alcohol, whereas the provincial governments have power over the sale and consumption.¹⁷ Further, Quebec rejected prohibition from 1919 because the province was making huge profits from alcohol related sales.¹⁸ Throughout the 1920s, the remaining provinces began to advocate for liquor sales, and voted to become “wet” provinces.¹⁹ Prince Edward Island was the last province to give up the prohibition movement during the 1940s, but some communities remained dry out of personal preference.²⁰

Social gatherings and situations would be significantly different today if prohibition continued to gain traction after the 1920s. You can not seriously tell me you actually enjoy talking to your great uncle Fred at family functions without a little alcoholic pick-me-up. Further, the alcohol industry is expected to be worth C$42 billion by the end of 2016.²¹ Consider the revenue the government would be losing by banning alcohol sales; and here in Edmonton we thought Rogers Place was a big investment.

Your Humble and Obedient Servants,

The Dominion

 

 

¹ Benoit Dostie & Ruth Dupré, “The people's will: Canadians and the 1898 referendum on alcohol prohibition” (2012) 49 Explorations in Economic History 498 at 498.

² Ibid at 499.

³ Ibid at 499.

⁴ Gerald Hallowell, “Prohibition in Canada” (12 August 2013), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/prohibition/>.

⁵ Dostie & Dupre, supra note 1 at 499.

⁶ Graeme Decarie, “Temperance Movement in Canada” (23 July 2013), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/temperance-movement/>.

⁷ Ibid.

⁸ Hallowell, supra note 4.

⁹ Decarie, supra note 6.

¹⁰ Hallowell, supra note 4.

¹¹ Ibid.

¹² Ibid.

¹³ Ibid.

¹⁴ Jack S Blocker Jr, David M Fahey & Ian R Tyrrell, Alcohol and Temperance in Modern History, 2nd ed (Santa Barbara: ABC-CLIO, 2003) at pg 229.

¹⁵ Ibid at 229.

¹⁶ Hallowell, supra note 4.

¹⁷ Ibid.

¹⁸ Ibid.

¹⁹ Ibid.

²⁰ Ibid.

²¹ Agriculture and Agri-Food Canada, Consumer Trends Wine, Beer and Spirits in Canada, Market Indicator Report September 2013 (Ottawa: Agriculture and Agri-Food Canada, 2013) at 3. 

Why does Canada STILL have the worst animal welfare laws in the Western world?

Not all of the bizarre cases heard at the Supreme Court of Canada (SCC) are lighthearted or funny like some of the content we’ve covered this week. Some strange cases make us chuckle when they force the highest court in the land to seriously consider the future of margarine, but the strange can also make us uncomfortable to the point where we remain silent on important issues. And when it comes to bestiality and animal cruelty, we cannot stay silent.  

Last year the SCC heard the disturbing case of R. v. W (D.L.), which required Canada’s highest court to consider the definition of bestiality for the first time.[1] The case involved a man who was convicted of sexually abusing his two stepdaughters. In addition to being convicted multiple counts of sexual touching, sexual interference and sexual exploitation, the man was found guilty of bestiality after he attempted to have a dog engage in sexual activities with one of the girls. One incident involved inducing a dog to lick peanut butter off one of the girls’ genitals. There was no evidence that the defendant penetrated the animal, though this was clearly an act with a sexual purpose.[2]

The key issue in the case was whether penetration is a necessary element of bestiality. Parliament included bestiality offences in the Criminal Code more than 60 years ago, though the code does not define the elements of the offence.[3] The trial judge found that penetration was not required, though the Court of Appeal for British Columbia (BCCA) disagreed and maintained the common law definition of bestiality.[4] The SCC concurred with the BCCA, finding that the historical precedent clearly establishes sexual penetration as an essential element.[5]

By convicting the defendant of bestiality, the SCC would have to “in effect, create a new crime”. Ultimately, this is Parliament’s role, not the SCC’s.[6]

Peter Sankoff – one of our professors here at the University of Alberta Faculty of Law –  represented Animal Justice, the organization that was an intervener in the case. Though he was pleased that the SCC had “acknowledged the rights of animals to be protected from sexual exploitation,”[7] the case demonstrates just how outdated and ineffective animal rights legislation is in Canada. It can’t be denied that the decision “gives animal abusers licence to use animals for their own sexual gratification.”[8] Most Canadians would find this fact horrifying and contrary to the basic values that we hold regarding other sentient beings, and yet, this is the state of Canadian law.

Now that the SCC has thrown the ball to parliament to address this situation, how has parliament responded?

This year, MP Nathaniel Erskine-Smith (Beaches - East York, Liberal) introduced the private member’s Bill C-246, which aimed to reform the Criminal Code’s animal cruelty offences.[9] This Bill would have been the first substantive change to Canada’s animal protection laws in over a century.[10] The Bill addressed a few different issues regarding animal cruelty, including shark finning, and would have expanded the limited scope of bestiality, including the following definition, “bestiality means sexual activity between a person and an animal.”[11] Frustratingly, the Bill was defeated in Parliament earlier this month.

Among the MPs voicing concerns were Blaine Calkins (for Red Deer - Lacombe, Conservative) and David de Burgh Graham (Laurentides - Labelle, Liberal). Calkins stated “We all want good animal welfare standards...I do not mean this maliciously, but I am hoping the overambitious agenda of the bill will be the end of it before it even has an opportunity to get to second reading.”[12] Graham, a self-identified hunter and farmer, was much more critical in his remarks, stating, “I do not believe my family belongs in prison for sustainably feeding ourselves. I do not believe tens of thousands of my constituents should risk prison for feeding their families, either.”[13]

It is a gross overstatement to claim that the Bill would have the effect of preventing hunters from providing for their families. The proposed amendment to the provision on killing animals specifically bars “unnecessary pain, suffering or injury to an animal” and “kill[ing] an animal without lawful conduct”.[14] Many Western countries have enacted similar basic provisions without hindering hunters.[15] The Bill was not overambitious. Rather, it was much weaker legislative response than what Canada requires.

In the words of Peter Sankoff, these statements are essentially “overheated rhetoric”[16] that fail to address a serious problem. As uncomfortable and horrifying as bestiality may be, Canada is failing to properly protect animals and we have to ask ourselves if we as a society value animals enough to act on their behalf. It’s time for Parliament to make real change and not hide behind hyperbole or complacency.   

For more information on the future after Bill C-246, check out MP Nathaniel Erskine-Smith’s article. As always, we would love to hear your input in comments!

Sincerely, 

The Dominion

 

[1] 2016 SCC 22, 398 D.L.R. (4th) 193.

[2] Ibid at para 6.

[3] Ibid at para 1.

[4] R v W(DL), 2015 BCCA 169, 371 BCAC 51.

[5] R v W(DL), supra note 1 at para 4.

[6] Ibid at para 2.

[7] David Dias, “Bestiality requires penetration: SCC” (09 June 2016), Legal Feeds (blog), online: <http://www.canadianlawyermag.com/legalfeeds/3297/bestiality-requires-penetration-scc.html>

[8] Ibid.

[9] Canada, Bill C-246. The Modernizing Animal Protections Act, 1st Session, 42nd Parl, 2016, online: <https://www.google.com/url?hl=en&q=https://www.oba.org/Sections/Animal-Law/Articles/2016/August-2016/An-Update-on-Canadian-Animal-Protection-Legislatio&source=gmail&ust=1477094606201000&usg=AFQjCNGSYzRYpbczfRGuim34q9iXbM2irg>

[11] Supra note 9.

[12] House of Commons Debates, 42nd Parl, 1st Sess, No. 51 (May 9, 2016) at 3043 (Blaine Calkins).

[13] Supra at 5242 (David de Burgh Graham).

[14] Supra note 9.

[15] Peter Sankoff, “Canada still an animal welfare laggard”, Policy Options (October 13, 2016) online: <http://policyoptions.irpp.org/magazines/october-2016/canada-still-an-animal-welfare-laggard/>

[16] Ibid.

Fighting for a career that was never actually "illegal" but practically so.

Dear Sir or Madam:

Do you think that Canadians have the right to dabble in whatever career choice they see fit? Do you think that sex work has a proper place in Canadian society? Have you ever wondered what it is like to be a sex worker in Canada? If you have thought about any of these questions, or perhaps answered yes to any then today’s post is right up your alley! Today we examine Canada’s landmark prostitution case, Canada (AG) v Bedford, which struck down Canada’s prostitution laws as unconstitutional. Further, we will provide a brief background on the courageous woman who appealed this issue all the way to the Supreme Court.

To begin, we must ask: who exactly is Terri-Jean Bedford? Bedford is a former prostitute, retired dominatrix and previous owner of the “Bondage Bungalow” in Thornhill, Ontario.¹ Before challenging Canada’s prostitution laws in the highest court, Bedford had legal cases dating back to 1994. The “Bondage Bungalow” was raided that year and Bedford was charged under the Criminal Code for operating a bawdy house.² Her 1994 arrest was the first time she considered challenging Canada’s prostitution laws, eventually beginning her formal challenge in 2007, alongside Amy Lebovitch and Valerie Scott.³

Canada (AG) v Bedford challenged several provisions of the Criminal Code relating to sex work. While selling sex for money, the act most people equate to prostitution, is not a criminal offence; several incidental acts to the selling of sex are. The appellants specifically argued that sections criminalizing the operation of a bawdy house, living off the avails of prostitution, and communicating in a public place violated the Charter.⁴ The women argued that s. 7 of the Charter, specifically security of the person, was infringed because sex workers were forced into dangerous situations in order to avoid being charged.⁵ The court unanimously agreed that the security of sex workers was jeopardized because they were forced into risky locations, and potential life-threatening situations in an attempt to avoid criminal prosecution.⁶

The Attorney General argued that prostitution was a “lifestyle choice” and therefore, should not receive constitutional protection.⁷ The Supreme Court dismissed this argument by concluding that sex workers are a marginalized population who are generally forced into this trade with little choice.⁸ Further, the act of selling sex is not actually illegal for those who freely choose to engage in this type of work.⁹ Thus, the court must only consider whether prostitution laws make this legal act more risky.¹⁰ The nine presiding justices agreed that they do.

The Supreme Court stayed their judgement for a year in the Bedford case allowing parliament to amend the prostitution laws to be aligned with the Charter. Parliament passed Bill C-36 as a result. These new prostitution laws essentially make sex work more difficult, by criminalizing the buying of sex.¹¹ Rather than criminalizing sex work itself, the federal government has made it illegal for "John's" to pay for any sexual services. A likely result will be forcing the "buying" of sex, rather than "selling" of sex back into dangerous and secluded areas. Bill C-36 severely limits the power of the Bedford case. 

Terri-Jean Bedford stated it best in an after-court interview “It’s not illegal and there’s nothing wrong with it whatsoever. It’s quite healthy and it produces a very productive man. A happy man makes a productive man.”¹² The federal government should not be impeding people’s free choice to engage in a type of work they consider acceptable. Further, the government cannot pass legislation that creates dangerous working conditions for individuals. The Supreme Court of Canada agrees in the context of prostitution legislation.

 

Your Humble and Obedient Servant,

The Dominion

 

 

¹ Heather Loney, “Who is Terri-Jean Bedford, the dominatrix fighting Canada’s prostitution laws” (20 December 2013), Global News, online: <www.globalnews.ca/news/1043102/who-is-terri-jean-bedford-the-dominatrix-fighting-canadas-prostitution-laws/>.

² Ibid.

³ Ibid.

⁴ Canada (AG) v Bedford, 2013 SCC 72 at para 61-68, [2013] 3 SCR 1101.

⁵ Ibid at para 60.

⁶ Ibid at para 60.

⁷ Ibid at para 83.

⁸ Ibid at 87.

⁹ Ibid at 87.

¹⁰ Ibid at 87.

¹¹ Josh Wingrove, "Canada's new prostitution laws: Everything you need to know" (15 July 2014), The Globe and Mail, online: <www.theglobeandmail.com/news/politics/canadas-new-prostitution-laws-everything-you-need-to-know/article19610318/>.

¹² Loney, supra note 1.

ConsTITutional Rights

Dear Madam and/or Sir,

Do you consider it to be “indecent” if a woman is topless in public? How about if a man is topless? Do you agree that women should have the same right as men to bare their chests? Perhaps you feel that only breastfeeding mothers should publicly milk the #FreeTheNipple campaign. Or perhaps you disagree with that too. If you run a Google search for “breastfeeding in public is”, the first four suggestions are “wrong”, “inappropriate”, “offensive”, and “nasty”.

Certainly, some nursing women choose to cover up or find a more private place. But is seeing a breast in public really offensive? Or inappropriate? What if you’re on an airplane and you want to nurse? Cover up? Seclude yourself in a tiny toilet room with your immuno-compromised baby? Now that’s nasty.  Nobody makes you eat your lunch in an airplane washroom.

Some people believe that women should have the right to walk around or enjoy life topless, just as men do. After all, they argue, without our common social construct that sexualizes breasts, they’re just two bags of skin filled with fat and glands. Indeed, some men have larger breasts than some women! And tit’s not just the outward appearance, it’s the internal breast tissue. The more tissue in the breast, the larger they grow. The Canadian Cancer Society notes male patients account for 1% of breast cancer cases.[1] So what’s the big deal about women’s breasts? Are we mam-merely maintaining modest traditional values?

Under the heading Disorderly Conduct, section 174 of the Criminal Code of Canada prohibits the act of “Nudity” in public without a lawful excuse.[2] Being “Nude” is then defined for the purpose of Nudity as being “so clad as to offend against public decency or order.”[3] This wording is quite vague, which allows for judicial interpretation, and some would argue, misinterpretation. Moreover, the word “clad” is misleading… it is the past participle of the word “clothed”, so technically, nudity should be unclad or partly clad. But further, what offends public decency or order? A breast? Part of it? What about “tasteful sideboob”?[4] What if we go the opposite way and people “clad” themselves in offensive garb? Here’s a fun collage to demonstrate the point:

But back to the tissue—we mean issue—abreast. Judicial interpretation occurs when courts interpret laws within the four corners of the written law. For example, s. 174 needs judicial interpretation of the words “offend”, “public decency”, and “order”. In 1996, Ontarian Gwen Jacob took her criminal charge for an indecent act[5] to the Court of Appeal for Ontario.[6] Apparently the police charged her with indecency in an attempt to nip it in the bud. Jacob was acquitted because the community standard of tolerance at that time indicated to the Court that her actions were not indecent. Further, the Court stated that there was nothing harmful, degrading, or dehumanizing about her conduct, and no one was forced to look at her.

We guess you could say... the Crown’s case went tits up.

So, twenty years later, how do we feel about topless women walking around town because it’s simply too hot for a shirt? CBC News reports that we don’t feel so hot about it.[7] Perhaps it’s because women fear censure, judgment, or ridicule.[8] Perhaps women fear assault or harassment because we live in a society where women’s bodies are objectified and harassment is trivialized. Ultimately, courts interpret laws in accordance with societal values and the Constitution is no exception. What do you think about women being topless in public? Comment below!

Thanks for the mammaries, Ms. Jacob,

The Dominion

 

[1] “Breast Cancer in Men”, Canadian Cancer Society, online: <www.cancer.ca/en/cancer-information/cancer-type/breast/breast-cancer/breast-cancer-in-men/?region=on>.

[2] RS 1985, c C-46 [Criminal Code].

[3] Ibid, s 174(2).

[4] Cards Against Humanity, Creative Commons BY-NC-SA 2.0.

[5] Criminal Code, supra note 2, s 173(1).

[6] R v Jacob (1996), 142 DLR 4th 411 (ONCA), 31 OR (3d) 350.

[7] Prithi Yelaja, “Women’s topless court victory 20 years later, CBC/Radio-Canada (28 Jul 2016) online: <www.cbc.ca/news/canada/women-s-topless-court-victory-20-years-later-1.1026403>.

[8] Ibid.

Did He Just Say "Big Pecker" in Court?!?

Dear Madam or Sir,

Today's submission for “The Dominion's Random Fun Cases Week” is our absolute favourite when it comes to explaining the concept of stare decisis to new law students and anyone else who is interested in how the law works.

Translated from Latin, stare decisis means, “let the decision stand”. It is often referred to as the doctrine of precedent. Near the end of November, we will be doing an entire week on the structure and operation of Canada's court system, but for now, we will briefly explain how this doctrine works.

Effectively, lower courts are bound by the decisions of higher courts in the same jurisdiction. This means that, for example, judges from the Provincial Court of Alberta are not permitted to make rulings that are contrary to cases that have been settled by the Alberta Court of Appeal, and neither of them are permitted to rule contrary to decisions of the Supreme Court of Canada that affect Albertan or Canadian law.

Fortunately for us, the judiciary is not without a sense of humour. We will describe what a “Master” is during our week on the court system, but for now, all that you really to know is that they are bound by the decisions of judges. Master Michael Funduk, notable for saying that “Lawsuits are not sporting events. It is not the Court’s function to fill the lacuna in people’s lives. That is what movie theatres are for,”¹ has brought his trademark sense of humour into the fray, and managed to entertain us regardless of his assertion in the above quote.

We will leave you with Master Funduk's description of stare decisis from his 1989 ruling in South Side Woodwork (1979) Ltd v RC Contracting Ltd:

McDonald is a decision by the Supreme Court of Alberta, Trial Division, now the Court of Queen's Bench. I am bound by decisions of Judges of this Court unless they have been overruled by our Court of Appeal or the Supreme Court of Canada, or unless there are contrary decisions by Judges of this Court, in which case I would face a dilemma (which I could probably "solve" by ordering a trial of an issue).
Any legal system which has a judicial appeals process, inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.
I am bound by decisions of Queen's Bench Judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial Court occupy the bottom rung of the superior Courts' judicial ladder.
I do not overrule decisions of a Judge of this Court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.²
(emphasis ours)

 

Your Humble and Obedient Servants,

The Dominion

 

[1] Moore v Tkachyk, 2002 ABQB 653 at para 13.
[2] [1989] 95 AR 161 at paras 53-56.

NFLD gets a Supreme

The Prime Minister has announced that Justice Malcolm Rowe will be the next Supreme Court justice. Atlantic Canada can rejoice and so can Newfoundland that gets its first justice on the SCC.  Notable in the story was:

He also presents himself as a follower of the "living tree" constitutional doctrine, a belief that the document's interpretation can change progressively over time — rather than strictly adhere to the text's original meaning.

"Is what Viscount Haldane wrote a century ago how we should determine whether actions of the federal or provincial governments are within or beyond their jurisdiction?," he wrote. "In this regard, judges should have regard to changes in the role of governments relating especially to the economy and technology in dealing with such issues."

No word on whether his tree is an oak tree or a Bonsai tree.

I Can't Beleive It's Not Criminal: The Strange Case of the Margarine Reference

Dear Sir or Madam,

Most of the time, the Supreme Court of Canada considers explicitly weighty issues which affect the fabric of our society. Not all cases are like that. This week we will be showcasing some of the weirder cases that have been heard by the courts. Of course, despite their absurd appearance, most of these cases really do have some important lessons. For example, today we review Reference Re Validity of Section 5(a) of the Dairy Industry Act [Margarine Reference]. This case, with  its seemingly ridiculous nickname, is actually an important development in the concept of criminal law and federal/provincial jurisdictional boundaries.

In the British North America Act [BNA Act], the provincial governments have control over property rights. This includes producing and selling margarine. One exception is when something is prohibited by criminal law, which is a federal power. We see this in how the federal government is able to ban marijuana and other drugs. (As an aside, be sure to come back next week when we examine the potential effect of these sections of the BNA Act on the upcoming legalization of marijuana.)

In the 1920s, the federal government attempted to ban margarine in an attempt to protect Canadian dairy producers. The Dairy Industry Act forbade the importation, production, and even possession of margarine in Canada. This legislation was challenged and heard by the Supreme Court on October 16, 1949. Justice Rand wrote the decision, which struck down the prohibitions on manufacturing and possession. His evaluation was that a key aspect of criminal law was that there had to be an objective related to “peace, order, security, health, [or] morality”. Rand J. identified that the real motive behind the legislation was trade related rather than an appropriate objective for criminal law. Therefore, the Court ruled that the prohibition was not valid criminal law. Only the ban on importation was upheld by the Court because international trade is with the federal government, not the provincial governments.

Categorization of laws can sometimes be tricky, especially when there is a dispute between provincial and federal authority. It is important to consider both the form and the function of the law. In this case, the form may have been the same as the form for criminal law, but the function was outside of the scope of that category.

Your Humble and Obedient Servants,

The Dominion

¹ [1949] SCR 1, 1 DLR 433.
² Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(13), reprinted in RSC 1985, Appendix II, No 5.
³ Ibid s 91(27).
⁴ Controlled Drugs and Substances Act, SC 1996, c 19.
⁵ Margarine Reference, supra note 1.

Silenced!

Dear Sir or Madam,
You may have noticed that our week highlighting issues affecting Indigenous people in Canada has been entirely silent in one regard.  We have not interviewed anyone who identifies as Indigenous.  This is not because we had no desire to do so, but because we were not permitted to.

The Research Ethics Office (REO) at the University of Alberta maintains strict control over anything that can be deemed a “research project” under the University's banner.  As with many things bureaucratic, they mostly do a good job.  But perhaps they do too much of it.  The REO policy on “Research Involving Aboriginal Populations” reads as follows:

“Research involving Aboriginal peoples in Canada has historically been defined and carried out primarily by non-Aboriginal researchers. The approaches used have not generally reflected Aboriginal worldviews, and the research has not necessarily benefited Aboriginal peoples or communities. Consequently, research with Aboriginal peoples must now involve community engagement to ensure that Aboriginal peoples have a role in the research that affects them.”¹

We humbly submit that this overly paternalistic REO policy, when applied too broadly, actually causes the exact opposite effect than intended.  The Dominion is not a “research project”, but a “media project”. Despite this, we are designated a as a research project when we intend to interview people, a.k.a. “human subjects”.  Our stated purpose is to make information regarding legal issues more accessible to a wider range of people.  We have been very fortunate to have been given this platform.  It is our sincere regret that we are unable to share it with a segment of the population whose stories desperately need to be heard.  For this, we apologize.

In addition, we offer two suggestions to help alleviate this problem:

First, we ask those of you that share our position to write to the Research Ethics Office.  Let them know that you feel that it is not appropriate for them to be erecting barriers that serve to silence Aboriginal people by denying them access to platforms that will allow them to tell their stories.

They can be reached by email here or by various other methods here.

Secondly, attend presentations and events hosted by Indigenous groups and speakers.  Listen to their stories.  They have been ignored for far too long.

 

Respectfully Submitted,

The Dominion

¹ University of Alberta, “Research on Aboriginal Populations” (2016), online: <www.reo.ualberta.ca/en/Human-Research-Ethics/Research-with-Aboriginal-Populations.aspx>

Using the G Word: Canada’s Modern Genocide in Residential Schools

[T]he Government will in time reach the end of its responsibility as the Indians progress into civilization and finally disappear as a separate and distinct people, not by race extinction but by gradual assimilation with their fellow citizens.

- Duncan Campbell Scott, Deputy superintendent of the Department of Indian Affairs (1913 to 1932)

When the US legalized same-sex marriage in 2015, Canadians scoffed at Americans who tweeted that they would move to Canada in response, not realizing that it had been legal here for 10 years. When Canada received top marks in a global social progress assessment, we continued our tradition of priding ourselves on being a tolerant, multicultural nation.[1] But this self-satisfied image of progressive tolerance papers over the fact that the Canadian government committed cultural genocide against Indigenous peoples for over a century in residential schools.

In 2015, Chief Justice Beverley McLachlin publicly declared that Canada’s residential school system amounted to cultural genocide. In the same year, the Truth and Reconciliation Commission of Canada (TRC) released its report, which laid bare the horrific details of the atrocities committed against Indigenous children in these institutions.

From the 1870s to 1996, more than 150,000 First Nations, Métis, and Inuit children were placed in federally funded schools that had the primary goal of breaking the children from their culture and identity.[2] In the words of John A. Macdonald, the government aimed to transform every Indigenous child from “simply a savage who can read and write” to having the “habits and modes of thought of white men.”[3] The Department of Indian Affairs articulated their policy of assimilation, for “Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada.”[4]

Attendance at the schools was mandatory, and children were separated from their parents, who often surrendered them only under threat of prosecution.[5] In schools, children were forbidden to speak their primary languages and forced to don school uniforms. The schools, mostly run by members of Christian churches, forced children observe Christian religious practices and taught them to reject the spiritual ways of their parents and ancestors. [6]

Children also suffered sexual abuse at the hands of staff members, and complaints of sexual abuse were often ignored. [7] The TRC report states, “[T]he government and churches were well aware of the risk that staff might sexually abuse residential school students. As early as 1886, Jean L’Heureux, who worked as a translator for Indian Affairs and a recruiter for Roman Catholic schools in Alberta, was accused of sexually abusing boys in his care.”[8] There were also disproportionately high death rates among children in the schools.[9] The federal government consistently failed to provide adequate resources to address this crisis, when improvements in housing, nutrition, sanitation, and medical attention were desperately needed.[10]

The Convention on the Prevention and Punishment of the Crime of Genocide (1948), to which Canada is a signatory, defines genocide as “the intent to destroy, in whole or part” a group by committing a number of acts, including, killing its members, imposing destructive conditions of life, or, “forcibly transferring children of the group to another group.”[11]

Though the UN Convention does not explicitly define cultural genocide, the TRC report distinguishes genocide from cultural genocide by the mass killing of a group.[12] However, even at the inception of term genocide in the 1940s, “[c]ulture was inextricably interwoven with a broader assault encompassing the totality of group existence.[13] Cultural genocide inflicts multi-generational trauma and if successful, can destroy a group’s identity entirely. The TRC defines cultural genocide as “the destruction of those structures and practices that allow the group to continue as a group.”[14]

It is a matter of historical record that the government instituted residential schools to achieve exactly what is captured by the TRC’s definition of cultural genocide. There has been hostility in defining the residential school system as a genocide, either because individuals see “cultural” as a civilizing adjective to atrocities, or that genocide is not a productive term.[15]

That debate is for another day. What cannot be disputed is the fact that the residential school system was based on the assumption that European civilization and Christian religions were superior to Aboriginal culture.[16] The government and those instituting the policies did not see Indigenous peoples as equals, or even as equally human.[17] We all need to know what happened in residential schools to understand the systemic injustice faced by Indigenous people today, and to ensure that these policies never recur. Even more importantly, we need to know what happened to ask ourselves a hard question: Have we completely eliminated these thoughts, attitudes, and values from our own society today?[18]

Recognition does not amount to reconciliation. The government’s formal apology in 2008 has to be matched with action. Residential schools are not part of the distant past, the last school only closed in 1996.[19] Methods of working towards reconciliation, as well as the long term effects of residential schools on Indigenous people, are much larger topics than what we can cover in one blog post, so please post your thoughts in comments.

(A group of students and parents from the Saddle Lake Reserve, en route to the Methodist-operated school in Red Deer, Alberta. Woodruff, Library and Archives Canada)

 

Humbly,

The Dominion

 

[1] US, Social Progress Imperative, 2016 Global Progress Index (Washington, DC: Social Progressive Imperative, 2016) at 17. Online: <http://www.socialprogressimperative.org/global-index/>

[2] Canada, Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future, Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Library and Archives Canada Cataloguing in Publication, 2015) at 2.

[3] Ibid at 2. Patrick Macklem, Indigenous Difference and the Constitution of Canada, (Toronto: University of Toronto Press, 2001) at 57.

[4] Supra note 2.

[5] Ibid at 37.

[6] Ibid at 220.

[7] Ibid at 37.

[8] Ibid at 105.

[9] Ibid at 93.

[10] Ibid at 99.

[11] The Convention on the Prevention and Punishment of the Crime of Genocide 9 December 1948, 278 UNTS at 280 (entered into force 12 January 1951).

[12] Supra note 2 at 1.

[13] Dirk Moses, “Raphael Lemkin, Culture, and the Concept of Genocide” in Donald Bloxham and A. Dirk Moses, eds, The Oxford Handbook on Genocide Studies (Oxford: Oxford University Press, 2010) 19 at 34.

[14] Supra note 2 at 1.

[15] Joseph Brean, “‘Cultural genocide’ controversy around long before it was applied to Canada’s residential schools”, The National Post (10 June 2015), online: <http://news.nationalpost.com/news/canada/cultural-genocide-controversy-has-been-around-long-before-it-was-applied-to-canadas-residential-schools>, Jesse Staniforth, “‘Cultural genocide’? No, Canada committed regular genocide”, The Toronto Star (02 June 2015), online: <https://www.thestar.com/opinion/commentary/2015/06/10/cultural-genocide-no-canada-committed-regular-genocide.html>, Joseph Brean, “‘Cultural genocide’ of Canada’s indigenous peoples is a ‘mourning label,’ former war crimes prosecutor says”, The Globe and Mail (02 June 2015), online: <http://news.nationalpost.com/news/canada/cultural-genocide-of-canadas-indigenous-people-is-a-mourning-label-former-war-crimes-prosecutor-says>

[16] Supra note 2 at 385.

[17] Bob Rae, “We’ll get the truth on First Nations, but reconciliation remains elusive”, The Globe and Mail (02 June 2015), online: <http://www.theglobeandmail.com/opinion/well-get-the-truth-on-first-nations-but-reconciliation-remains-elusive/article24744416/>

[18] Ibid.

[19] Supra note 2 at 385.

 

Oh Canada! Your home's on Native Land!

Dear Sirs and Madams:

Did you know that Canada’s parliamentary buildings sit on unceded Algonquin land?[1] “The House of Commons, the Senate, and the Supreme Court of Canada make laws for all Canadians while situated on land that was never lawfully purchased”.[2] This contravenes formal legal rules established for encroaching on Indigenous lands. Today’s post reviews significant Aboriginal jurisprudence from the Supreme Court of Canada (SCC) that interpreted the BNA Act and the Constitution Act, 1982 with respect to the Crown’s negotiations with Indigenous groups.

On Monday, we discussed the Royal Proclamation of 1763. It essentially allowed the Crown to encroach on “Indian Territory” through negotiations or treaties. Because the Crown retains sovereignty, the Royal Proclamation established an orderly transition of control rather than assured Indigenous sovereignty over “Indian Territory”. At Confederation, s. 91(24) of the BNA Act gave Parliament exclusive jurisdiction to make laws respecting “Indians, and Lands reserved for the Indians” but did not recognize inherent or existing Indigenous rights. Section 35 of the Constitution Act, 1982 protects existing “aboriginal and treaty rights” and s. 35.1 guarantees aboriginal participation in the discussion respecting Indigenous rights.

Canadian common law jurisprudence has attempted to solve some of the conflict arising when federal and provincial legislation affects Indigenous land or interests in land. In Calder et al v. Attorney-General of British Columbia, the SCC held that Indigenous land rights survived European settlement unless a treaty extinguished such rights.[3] In Guerin v. The Queen, the SCC determined that the Crown’s fiduciary duty arises from the nature of Indian title and that Indian land interests are only transferable to the Crown.[4] However, the Court in R. v. Sparrow also asserted that rights could be extinguished by the Crown without consent by clearly expressed legislation before the 1982 Constitution and with consent or by constitutional amendment after the 1982 Constitution because s. 35 entrenched those rights[5].

The Court in Sparrow also held that the government could infringe on indigenous rights and title to land with a “compelling and substantial” rationale. The SCC maintained that the Crown still has to act in accordance with the fiduciary duty it owes Indigenous groups and must act honourably in light of the historical and future relationship with Indigenous peoples. The Court expanded on the principle in R. v. Van der Peet that pre-contact Indigenous claims are not frozen in time.[6] Indigenous rights are flexible in that they are not simply the same as rights were in the 1700s. This means that that the Crown has to consider needs that are unique to Indigenous peoples in today’s society.

In Delgamuukw v. British Columbia, the SCC held that Indigenous land rights and the Crown’s obligations are unique because they predate Crown sovereignty.[7] It also allowed a more flexible evidentiary standard to accommodate oral history traditions that were more prominent in Indigenous cultures than in the English common law system. The Court specified that Indigenous perspectives needed equal weighting to Canadian common law perspectives on property ownership. However, this “equal weighting” did not amount to giving a veto power to indigenous voices and there is a broad range of legislative objections that can justify infringement. The Court held that indigenous rights involve exclusive use and occupation but, again, the Crown can infringe on these rights if they exercise their duty to consult and accommodate affected communities. This is necessary even where aboriginal title is asserted but not yet proven. The duty to consult is flexible: its intensity increases with significant infringement and with a strong indigenous claim to title.

The Court also expanded on the principle of the honour of the Crown in negotiations regarding resource development in areas where aboriginal title and rights are asserted but not established. The honour of the Crown requires consultation and accommodation in good faith and actual consent, not just consultation, may be required in some circumstances where title is officially established.

Most recently, in 2014, the Tsilhqot’in Nation v. British Columbia decision made headlines for several reasons.[8] The Court declared indigenous title to off-reserve lands for the first time. It extended the title to a large area that an Indigenous group used regularly and exclusively at Confederation. It asserted that Indigenous rights are exclusive to all others including provincial and federal legislation.[9] Pam Palmater, a lawyer and chair of Indigenous Governance at Ryerson University, suggests that there remain large areas in Canada that have never been ceded, negotiated, or compensated for.[10] Palmater further asserts that indigenous human rights have suffered as a direct result of being subject to government control over their lives and territories.[11] The Tsilhqot’in decision, she points out, clarified that consent, versus mere consultation, is required.[12]

Treaty negotiations are not just part of Canada’s colonial history. Concerns about Indigenous land rights and title are currently at issue in Ontario. The provincial and federal governments’ consultation process with members of the Ontario Algonquin nation affects a land claim that includes Canada’s capital. Despite an Agreement-in-Principle ratified by the Algonquins of Ontario, some scholars argue that this is a continuation of the government’s colonial management of a group of people.[13] The Agreement-in-Principle is not binding but forms the framework for negotiations.[14] The region under dispute is approximately 36,000 km² with a population of about 1.2 million. Both Indigenous and non-Indigenous Canadians could be affected in the short term and the long term. By revisiting the errors made under colonial practices, Canada will be in a better position to address Indigenous claims.

Your humble servant,

The Dominion

[1] “Chiefs say Proposed Algonquin Land Claim Deal Illegal, Fraudulent” (3 Mar 2016), CBC News, online: <www.cbc.ca/news/indigenous/algonquin-land-deal-illegal-1.3475359>; Lynn Gehl, “‘Oh Canada! Your Home is Native Land’: The Algonquin Land Claims Process”, Atlantis 20:2 (2005), online: <www.lynngehl.com/uploads/5/0/0/4/5004954/51.pdf>.

[2] Robert Potts, “Algonquin Land Claim, a Journey of Reconciliation” (28 Jun 2013), The Hill Times, online: <https://www.hilltimes.com/2013/06/28/algonquin-land-claim-a-journey-of-reconciliation/25205>.

[3] [1973] SCR 313, 34 DLR (3d) 145.

[4] [1984] 2 SCR 335, 13 DLR (4th) 321.

[5] [1990] 1 SCR 1075, 70 DLR (4th) 385 [Sparrow].

[6] [1997] 3 SCR 1010, 153 DLR (4th) 193 [Delgamuukw].

[7] [1996] 2 SCR 507, 137 DLR (4th) 289.

[8] [2014] 2 SCR 257, [2014] 2 SCR 257

[9] “Pam Palmater on Court Rulings Impacting Aboriginal Rights” (2 Jun 2015), CBC

[10] Ibid.

[11] Ibid; Pam Palmater, “Canada’s State of Emergency” (10 Mar 2005), TedxRyersonU, Tedx Talks, YouTube, online: <https://www.youtube.com/watch?v=lrd4848Q064>.

[12] Lynn Gehl, “Canada’s Interim Comprehensive Land Claims Policy is No More than Colonial Policy” (27 Nov 2014), Anishinabek News, online: <anishinabeknews.ca/2014/11/27/algonquin-chiefs-say-tsilhqotin-supreme-court-decision-is-no-more-than-colonial-policy/>.

[13] Lynn Gehl, “Why I’m Hoping the Algonquin Land Claim Proposal is voted Down” (23 Feb 2016), Ricochet Media, online: <https://ricochet.media/en/970/why-im-hoping-the-algonquin-land-claim-proposal-is-voted-down>; Potts, supra note 2.

[14] Algonquins of Ontario Agreement-in-Principle Executive Summary (2016), Indigenous and Northern Affairs Canada, online: <www.tanakiwin.com/wp-system/uploads/2015/06/Frequently-Asked-Questions-and-Executive-Summary.pdf>.

Scalia Law School

I had the honor of attending the renaming of my law school from George Mason University School of Law to the Antonin Scalia Law School. The renaming came after two donations amounting to $30 million were made after the Justices death. 

The ceremony was remarkable given that it was attended by six of the eight US Supreme Court justices and others. Speaking on behalf of the Supreme Court (and as a former law dean) was Justice Elena Kagan, whose remarks can be seen below:

 

The internet-connected car - who owns your data?

In my previous post I raised the need for closer ties between legal authorities and the tech companies who are creating new tracking devices. Let me give an example of what I mean:

The Internet of Things describes a future where almost every physical product we use is connected to the internet, and is passing information and insights to other products or people. Your fridge could tell your supermarket to deliver milk to your home when you're running low. Your shoes could tell your personal trainer that you're gaining weight and need more exercise. Your car could post a message on your bathroom mirror reminding you to wear sunscreen, as the UV index is high outside (based on its windshield readings). And so on.

We're already seeing many of these technologies play out, particularly through new cars.

The modern car already has more computer components than engine parts. There are sensors that can tell who is sitting down behind the wheel, and automatically adjust the seat and mirrors to fit their shape. The navigation system gives advice on popular routes that the driver uses (and warns if there is a traffic disruption along those paths). Future cars will be able to monitor drivers to see if they're falling asleep or are otherwise distracted, and prompt them to pay more attention to the road. Cars could even monitor a driver's vital signs and notify an emergency responder if they're in an accident or are having a medical emergency on the road.

So, the question is, who owns all this personal data that is being tracked, transmitted and analyzed? Is it the car manufacturer? The car dealer? The producer of the computer hardware? Or the producer of the computer software? The company that does the analysis of the driver's data? The wifi provider that is being used to transmit the data? The company that runs the satellite the wifi provider is using? The company that owns the servers it is being stored to?

There could be dozens - if not hundreds - of companies involved in the manufacture and operation of a single car. Currently, no one company is responsible for the fair use (and storage and security) of the user data being collected from this car. The privacy buck can therefore continuously be passed.

And this will be the case for almost all Internet of Things device. If we cannot make one company responsible for the security and management of user's private data, could this be the end of privacy laws?

(Alberta's not-for-profit technology accelerator, Cybera, holds an annual conference in Banff each year exploring new digital technologies and issues such as this. The event is being held at the end of October. For more information, visit the event's website.)

The Indian Act: A Cycle of Discrimination

Dear Sir or Madam:

Today we write to you regarding the Indian Act’s negative impact on Aboriginal people in Canada. The Indian Act is the primary statute the federal government enacted to administer Indian status, and regulate Indian reserves.¹  The Act has received significant backlash from Indigenous communities due to highly discriminatory sections, and the paternalistic nature of the document.² The Indian Act has historically discriminated against Indigenous women, awarding them fewer rights than Indigenous men.³ Today’s post will provide a brief history of the Indian Act; then discuss sex discrimination within the Act and reactions to the legislation.

The Indian Act governs how the federal government interacts with Indigenous peoples. First Nations people are the only subjects of the legislation; Metis and Inuit people are not included.⁴ The 1850 Act for the better protection of the Lands and Property of the Indians in Lower Canada was one of the first pieces of legislation to determine who was classified as a legal Indian.⁵ Status was granted based on bloodline and all descendants of a legal Indian would also receive Indian status.⁶ Further, any non-status individual who married a status Indian would receive legal status.⁷ Status would later be regulated under the Indian Act of 1867.

The federal government was granted constitutional powers over “Indians, and Lands reserved for the Indians” under s. 91(24) of the British North America Act.⁸  Any legislation enacted for the purpose of governing First Nations individuals is the exclusive control of the federal government. The Indian Act of 1867 was created when the federal government combined the Gradual Civilization Act and the Gradual Enfranchisement Act into one document.⁹ The purpose of the document was to control First Nations peoples and assimilate them into a European-type culture.¹⁰ Early provisions of the Act were highly discriminatory towards all Indigenous people. The Act forced Indigenous children into residential schools, banned religious potlatches (gift giving ceremonies), banned dancing, and made it illegal to hire lawyers to bring claims against the government unless they had government consent.¹¹ Important aspects of Indigenous cultures were outlawed in an attempt to assimilate Indigenous people into society.

One of the most problematic and contentious parts of the Indian Act is a set of sections pertaining to Indian status. Critics of the Act and Indigenous advocates suggest that the administration of status is highly discriminatory against women.¹² Even with several amendments to the Indian Act since 1867, status continues to be passed along through male lineage, never female lineage.¹³ The federal government has been aware of this sex discrimination since the 1960s, but the discrimination still remains.¹⁴ The government attempted to address this issue by passing Bill C-31 which allowed women who had lost their Indian status, through marriage to a non-status individual, to apply for status reinstatement.¹⁵ Even with the new amendments discrimination remains because women who marry out can only pass their status to one generation of children, whereas men who marry out are able to pass status through two generations.¹⁶

Indigenous women today still “face multiple challenges with respect to securing status for themselves and their children.”¹⁷ The hardship of securing status can cause negative social interactions by creating a subset of Indigenous women that are seen as less pure than those with full legal status.¹⁸ This system of classification perpetuates violence against Indigenous women because they are viewed as less pure, causing profound psychological stress and trauma.¹⁹ The government needs to find a less discriminatory practice for classifying legal status. In the future, we can only hope that women and men will receive the same rights under the Indian Act and the sex discrimination will cease to exist.

Your Humble and Obedient Servants,

The Dominion

 

¹ William B Henderson, “Indian Act” (7 February 2006), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/indian-act/>.

² Gwen Brodsky, “Indian Act Sex Discrimination: Enough Inquiry Already, Just Fix It” (2016) 28 CJWL 314 at 314.

³ Ibid at 314.

⁴ Henderson, supra note 1.

⁵ Ibid.

⁶ Ibid.

⁷ Ibid.

⁸ Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(24), reprinted in RSC 1985, Appendix II, No 5.

⁹ Ibid.

¹⁰ Ibid.

¹¹ Ibid.

¹² Brodsky, supra note 2 at 315.

¹³ Bob Joseph, “Indian Act and Women’s Status Discrimination Via Bill C31 and Bill C3” (9 July 2012), Working Effectively with Indigenous Peoples™ (blog), online: <www.ictinc.ca/indian-act-and-womens-status-discrimination-via-bill-c-31-bill-c-3>.

¹⁴ Brodsky, supra note 2 at 315.

¹⁵ Henderson, supra note 1.

¹⁶ Joseph, supra note 13.

¹⁷ Inter-American Commission on Human Rights, Missing and Murdered Indigenous Women in British Columbia, Canada OEA/Ser.L/V/II, Doc 30/14 21 (2014), Organization of American States <www.oas.org/en/iachr/reports/pdfs/Indigenous-Women-BC-Canada-en.pdf> at para 69.

¹⁸ Ibid at para 69.

¹⁹ Ibid at para 69.