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Alice in Wonderland: It’s Not Just Fiction

This Friday and Saturday, Law Show, a not-for-profit variety show at the University of Alberta Faculty of Law will be performing “Alice in Wonderlaw”. Though many of us are familiar with the story of Alice in Wonderland, the name has a unique connotation when discussed in the context of the Canadian law. In the literal sense, Alice in Wonderland is a tale in the nonsense literary genre.¹The story follows a young girl who falls down a rabbit hole, meeting interesting and strange characters on her journey to return home. Legally, courts in many countries have associated the title with laws which are illogical. The term has become associated with laws and policies which are unrealistic, imaginary or impossible to implement.

In Canada, Alice in Wonderland (AIW) comes into play when grappling with many aspects of our legal system. In the context of aboriginal law, AIW qualities are rampant in both specific and comprehensive aboriginal land claim litigation.² In dealing with comprehensive claims, these qualities are seen from the Canadian and Quebec governments’ failures to honor the James Bay and Northern Quebec Settlement Agreement (JBNQA).³ In Namagoose v Robinson⁴, a court case that dealt with governmental non-compliance with the JBNQA, the Crown argued that the treaty was not statute nor was it ratified, so the government was not required to comply with its directives. In its decision, the court described the Crown’s argument as “ludicrous and incomprehensible”⁵, and therefore AIW-like.

Specific claims, unlike comprehensive aboriginal land claims, are based on a specific claim of non-compliance with a treaty provision;⁶ comprehensive claims are based on claims before British sovereignty. Specific claims are dealt with under the Specific Claims Tribunal Act⁷, for which the claims process has been deemed “Wonderlandish”.⁸ All claims under $150 million go through the tribunal, but the monetary worth of the claim has not yet been determined when that decision is made. How can a case be determined to claim less than $150 million, when the claim itself doesn't quantify an amount of money? Secondly, both the claim money, and administrative costs are paid out of the same grant. Therefore, it’s possible that the grant money has been spent on administration of the tribunal, leaving a dry pot for prevailing parties. In these respects, the government has channeled their inner Alice and gone down the rabbit hole with their policies and arguments, leaving all those involved in the dark.

AIW themes even take root in basic legal issues. Many legal scholars and professionals have criticized standard form terms on products and questioned whether they could really be contracts:

“Almost no one reads the terms… and for good reason: the product or service is necessary; the standard form will not be changed, since any attempt at negotiation would be futile; other suppliers are likely to insist on similar terms. As Radin says, there is an “Alice in Wonderland” quality in supposing that these forms are contracts.”⁹

In another another area, Alice is discussed in reference to photographic evidence in criminal trials. It is AIW-like, says D.S. Gardner, that x-ray evidence is admitted easily when it is impossible to ensure its accuracy.¹⁰ In contrast, photographic evidence is subject to a higher level of scrutiny even though each photo taken is independently verifiable.

All this is to say that that Canadian law is not perfect. There are many policies that are fantastical, arguments that do not make sense, and laws that are outdated and unrealistic. Alice appears in many areas of the law, and just like the Lewis Caroll tale, it is unlikely that she will go away anytime soon.

^{*Edited on February 1st.} 

¹Randy J Maniloff, “Alice in Wonderland Provides Proof That the Legal System Makes No Sense”, LexisNexis Legal Newsroom (22 April 2014) online: <www.lexisnexis.com/legalnewsroom/insurance/b/insurance-coverage/archive/2014/04/22/alice-in-wonderland-provides-proof-that-the-legal-system-makes-no-sense.aspx?Redirected=true>.

²Michael Posluns, “Aboriginal Land Claims: The Alice in Wonderland Dimension of the Canadian Judicial System”, SLAW (27 October 2011), online:  <http://www.slaw.ca/2011/10/27/aboriginal-land-claims-the-alice-in-wonderland-dimension-of-the-canadian-judicial-system/>.

³An Act Approving the Agreement Concerning James Bay and Northern Quebec, CQLR c C-67.

⁴Namagoose v Robinson, FCTD, 1991 FCJ No 904, action No T-451-91.

⁵Supra, note 2.

⁶Michael Posluns, “Specific Claims: The Alice in Wonderland Dimension of the Canadian Judicial System, Part 2”, SLAW, (25 January 2012), online: <http://www.slaw.ca/2012/01/25/specific-claims-the-alice-in-wonderland-dimension-of-the-canadian-judicial-system-part-2/>.

⁷Specific Claims Tribunal Act, SC 2008, c 22.

⁸Supra, note 6.

⁹Anthony Dugan, Jacob S. Ziegel & Jassmin Girgis, “Review Essay: The Problem of Standard Form Contracts: A Retreat to Formalism” (2013) 53:3 CBLJ 475 (WestlawNext Canada).

¹⁰Kent W. Roach et al, “Photographic Evidence: Its Probative Value at Trial and the Judicial Discretion to Exclude it From Evidence” (1973-1974) 16:2 CLQ 149 (WestlawNext Canada).

An Odd Coincidence, Some Irony, And A Bit Of Canadian Legal History

This is not quite an Oxford Story but there is at least one Oxford connection.

Once upon a time, in central North York, Ontario, Canada, when North York (despite Mel Lastman's pretensions) was really only a suburb of the City of Toronto - much like the boroughs of New York, NY are only suburbs of Manhattan - before North York amalgamated with Toronto and other suburbs of the City of Toronto, there was a small community of houses, apartment buildings and a small public school in an area bounded by Highway 401 to the south, railroad tracks to the west, and major streets on the east and north.

The area that is now the massive, upscale, Yorkdale Plaza is southeast of the community, on the other side of the 401.

Ice on Whyte celebrates Canada 150

The Dominion is grateful for its readers nationally and internationally. Because we are based in Edmonton, we will promote and review events in Edmonton that celebrate Canada 150. We will also report on the Centre for Constitutional Studies events that feature excellent and interesting lecturers.

If you’re not in Edmonton, our event reviews are still designed to educate or entertain you. And if you’re elsewhere in Canada, check out Canada150.ca for events near you. 

Today’s post reviews Ice on Whyte, an annual ice-carving competition near Whyte Avenue with submissions from expert carvers around the world! It is located on Tommy Banks Way, which is fitting because Tommy Banks is a musician, former Canadian senator, and boasts a doctorate in laws and being awarded the Order of Canada. Events continue this coming weekend: Thursday and Friday 2pm to 10pm; Saturday and Sunday 10am to 10pm.

As is evident from the name, Ice on Whyte features a lot of ice. Whereas some Edmontonians might wish for warmer Januaries, the elaborate ice sculptures need the current temperatures to stay below zero for just a few more days.

The festival is mostly family friendly, but if you are looking for an 18+ environment, keep your eyes peeled for adults-only entertainment in the entertainment tent (at 2pm it turns into the Edmonton Beer Geeks Anonymous saloon). On Friday, January 27th, guests were treated to a vaudeville-style show with burlesque dancers and a contortionist/escape artist. The opening act, comedy duo Bud and Yolanda, set the evening’s bawdy tone with an upbeat song about an unfortunate, friendly cat; complete with double-entendre and a Trump joke.

  When the entertainment tent is not limited to an 18+ audience, it is open to minors. The “Ordinary People… Extraordinary Stories” exhibits recognize history made by notable Canadians, such as Alex Decoteau: member of the Cree nation, Olympic athlete, soldier, and the first Indigenous police officer in Canada. He attained the rank of Sergeant the Edmonton Police Service and died serving his country during the second battle of Passchendaele in World War I.

Across the fair grounds, the Second Cup Coffee igloo offers coffee for a $2 donation and hot chocolate for $1, as well as hosts quality local live music. Behind the igloo, both kids and adults can enjoy the giant ice-slide. Actors role-play to share history from Confederation-era Canada, especially appropriate for this year’s celebrations. Sit down for a fireside chat or climb into the giant canoe and pretend to paddle down the North Saskatchewan River. Please note that actually paddling down the North Saskatchewan in January is generally considered to be unwise.

Next Sunday, the tent will host the Old Strathcona Farmers Market Stew Off. If you can’t make the stew off, several food trucks are on site daily to take care of your hunger.

In addition to daily crafts, test out your carving skills with ice-carving challenges for kids and adults. Grab a hot chocolate and enjoy a sleigh ride, or watch the fascinating skill of the blacksmith demonstration. No matter your age or interests, this winter festival showcases some great Canadian talent and culture. This 1-page festival guide will help you plan your visit.

The Forgotten Other Cartier: a Man who Loved the Sound of his own Voice

Sir George-Étienne Cartier, son of Jacques Cartier III, grandson of Jacques Cartier II, and great-grandson of Jacques Cartier I; no relation to explorer Jacques Cartier.[1]

Montreal lawyer and politician George-Étienne Cartier was born 350 years after Jacques Cartier, the St. Lawrence River navigator and French settler. Before moving to Montreal, Sir Cartier grew up in Saint-Antoine-sur-Richelieu, a small town near Montreal where his family had lived for three generations.

As an adult, he enjoyed Montreal’s elite social scene and apparently loved the sound of his own voice. In fact, he once spoke for 13 hours in Parliament.[2] At both English and French social events, he would entertain guests by singing songs he wrote himself.

Although Sir John A. Macdonald is often hailed as the architect of Canada, Sir Cartier may have been the stronger force driving Confederation.[3] Even Macdonald is reported to have stated that Cartier, his co-premier of the Province of Canada, was the true Father of Confederation.[4]

Political and Legal Career

Cartier articled as a law student with MLA Edouard Rodier, member of the Patriote (rebel) Party, but delved into politics even before he was admitted to the Bar of Lower Canada in 1835. He worked to elect to legislature Patriote Party members Louis-Joseph Papineau and Robert Nelson; later joining them in the 1837-1839 Papineau Rebellion.[5] Cartier was charged with treason for his part in the failed rebellion and took exile in the United States. He returned after both swearing his allegiance to the Queen and when the colonial governor annulled the charges.[6] Unfortunately, he remained “a politically incorrect personage” and never shared the same level of praise in Quebec as does Jacques Cartier or in Canada as does Macdonald.[7]

Cartier nevertheless had a remarkable political career. He was elected in 1848 to the Legislative Assembly and strongly represented his constituents and French Canada.[8] He rewrote property laws, created a modern civil code, set up primary schools for Catholics and Protestants, oversaw the Hudson’s Bay Company negotiations to purchase Rupert’s Land and the North-Western Territory, and helped negotiate the creation of the province of Manitoba.[9]

Conflict of Interest

Sir John A., even with his reputation for imbibement, was perhaps a more suitable choice to embody the legacy as Canada’s Father of Confederation. Cartier further fell from favour in 1873 when he was implicated in the Pacific Scandal, a “cash-for-contracts” scheme where he accepted political donations from his railway promoter client.[10] Cartier acted as legal counsel for the Grand Trunk Railway and prevented US railways from taking over the Canadian Pacific Railway project. However, his political campaign was largely funded by this client, which received the government railway contract.[11] This ended his political career. He died later that year of a kidney illness.[12]

Confederation

Despite, or perhaps due to, Cartier’s commitment to French-Canadian nationality, Confederation was a high priority for him.[13] Confederation was a means to unite Upper and Lower Canada without assimilating the French settlers into English culture; to unite the British colonies in defence against the US; and to develop the intercolonial and pacific railways without US intervention.[14] Cartier took part in the London, Quebec, and Charlottetown Conferences to convince the Queen and other lawmakers that Confederation was the right decision. In 1867, as Macdonald became the first Prime Minister of Canada, Cartier became the first Minister of Militia and Defence and occasionally stood in for Prime Minister Macdonald when necessary.[15]

Clearly, Cartier had a voice that could not be silenced—while he lived. Whether he was singing to entertain his friends, rallying votes, or negotiating political instruments that would shape the political boundaries of the country, people listened to him. Unfortunately, his two political transgressions likely downgraded his legacy in the history books.

This lesser-known Father of Confederation wraps up this week’s posts. Next week, we’ll tell you about the Ice on Whyte festival that celebrates Canada 150. In a few more weeks, we’ll write about the Women of Confederation, including Sir Cartier’s long-time lover, Luce Cuvillier. Stay tuned!

[1] “Sir George-Étienne Cartier National Historic Site of Canada,” National Historic Sites (4 March 2014), online: Parks Canada <www.pc.gc.ca/eng/lhn-nhs/qc/etiennecartier/natcul/natcul1.aspx> [Parks Canada].

[2] “Fathers of Confederation: George-[É]tienne Cartier”, Canada: A Peoples History, CBC (2001), online: CBC <http://www.cbc.ca/history/EPCONTENTSE1EP8CH3PA2LE.html> [CBC].

[3] Ibid; Alastair Sweeny, “Confederation’s True Father? George-Étienne Cartier” (3 January 2014), online: The Globe and Mail <www.theglobeandmail.com/opinion/confederations-true-father-george-etienne-cartier/article16177890/>.

[4] Sweeny, ibid.

[5] Parks Canada, supra note 1.

[6] CBC, supra note 2.

[7] Sweeny, supra note 3. If you ever go to Montreal, you must visit Place Jacques-Cartier: www.vieux.montreal.qc.ca/tour/etape6/eng/6fena.htm. It’s beautiful.

[8] CBC, supra note 2.

[9] CBC, supra note 2; People: Sir George-Étienne Cartier, Library and Archives Canada (2 May 2005), online: Government of Canada <https://www.collectionscanada.gc.ca/confederation/023001-4000.12-e.html> [Library and Archives].

[10] Library and Archives, ibid.

[11] Sweeny, supra note 3.

[12] “Confederation: George-Étienne Cartier,” A Country by Consent, online: Canada History Project <www.canadahistoryproject.ca/1867/1867-07-ge-cartier.html>.

[13] Parks Canada, supra note 1.

[14] Sweeny, supra note 3.

[15] Parks Canada, supra note 1.

Purposive Dancing With The Stars - A Coda

This piece was written on Friday 13 January 2017.

It's just a superstition that the 13th of a month is an unlucky day when if falls on a Friday, right? Well, maybe so. But that doesn't mean we can't can't give the superstition some content, right? And see who is made lucky or unlucky as a result?

After the appropriate amount of preparatory web searching,  one or more students from the U of A Law Faculty, on a warm enough day this month or next, could make the journey from their faculty to the Alberta Legislative Assembly library, or wherever else you have determined you should look, and get copies, in some media, of whatever documents exist that are contemporaneous with the drafting and enactment of  the mid 1990s original of the Freedom of Information and Protection of Privacy Act, RSA 200, c F-25  and tell us what you've found.

 

Thomas D'Arcy McGee, Creator of Canadian Identity

Canada is a nation of nations, bringing people of many cultures together from all across the world. Multiculturalism was formally recognized as a vital part of Canadian life and identity by Prime Minister Pierre Elliott Trudeau in 1971.¹ Despite this relatively recent formal recognition, multiculturalism  has been essential to our country from the very beginning. Writings by Thomas D’Arcy McGee, one of the Fathers of Confederation, mention the topic as early as the 1850s.

McGee was born in Ireland in 1825. He began careers in publishing and politics as a radical, pushing for Irish independence from The United Kingdom. This radicalism forced McGee to flee the country in 1848, first moving to the United States, and eventually settling down in Montreal in 1857.²

As he aged, McGee mellowed. He changed to what one biographer refers to as an “extreme moderate”.³ He found a Canada (at the time only referring to to Ontario and Quebec, then administered as a single province along the St. Lawrence and Great Lakes) divided, with infighting between English and Scottish Protestants on one side and French Catholics on the other. Irish Catholics and other minorities did not fit in with either side. McGee wrote from an immigrant perspective, viewing a mixing of cultures and immigration as a strength in Canada.  He considered this multi-cultural formation something from which we could build a shared identity.⁴ He called for the construction of “a new northern nationality” built on that mixing of cultures.⁵ He also wrote favourably about the difference between Canada and the United States.⁶

McGee sidestepped partisan politics, sitting with the Reformers, Conservatives, and as an independent during his time in elected office. He was a delegate at the Charlottetown and Quebec Conferences in 1864,⁷ and was instrumental in negotiating the settlement of issues regarding religion and language in education.⁸ This agreement gave power over education to the provinces while enshrining minority religious and language rights, and is found in s 93 of the British North America Act.⁹

Irish secessionists known as Fenians were becoming a powerful political group in The United States. McGee opposed their radicalism, especially when they attempted an invasion of Canada in 1866. This was a great change from his younger self, showing more maturity and an acceptance of the British Crown, assuming a certain amount of autonomy for local governments. He was murdered in 1868, most likely by a Fenian operative. Thomas D’Arcy McGee, someone who had lived to unite Canada, became the first political assassination victim in the history of our country.¹⁰

¹Canadian Museum of Immigration at Pier 21, “Canadian Multiculturalism Policy, 1971” (2016), online: <http://www.pier21.ca/research/immigration-history/canadian-multiculturalism-policy-1971>.

²“Thomas D’Arcy McGee” in The Quebec History Encyclopedia, online: <http://faculty.marianopolis.edu/c.belanger/quebechistory/encyclopedia/ThomasDArcyMcGee-HistoryofCanada.htm>.

³Jeffrey Simpson, “Thomas D’Arcy McGee - The Man Who Saw Beyond Confederation”, The Globe and Mail, (13 April 2013), online: <www.theglobeandmail.com>.

⁴Josephine Phelan, “D’Arcy McGee’s Poetry; Its Place in his Biography”, (1957) CCHA, Report, 24 , at 38, online: <http://www.umanitoba.ca/colleges/st_pauls/ccha/Back%20Issues/CCHA1957/Phelan.pdf>.

⁵“Thomas D’Arcy McGee”, supra note 2.

⁶Phelan, supra note 4, at 31.

⁷“Thomas D’Arcy McGee”, supra note 2.

⁸Simpson, supra note 3.

⁹Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 93, reprinted in RSC 1985, Appendix II, No 5.

¹⁰“Thomas D’Arcy McGee”, supra note 2.

 

William Henry Pope: Father of Confederation & A Great Beard Too

William Henry Pope was born May 29, 1825 in Bedeque, Prince Edward Island (PEI), and later died on October 7, 1879.¹ A man of many talents and great intelligence, Pope was a politician, journalist, lawyer, judge, and land agent throughout his life.² The man had more successful careers than most people can hope for in five lifetimes. That person in law school that is involved in every club, seems to be at every event and is also probably a Dean’s Lister; this was William Henry Pope.

Pope received his post-secondary education in England where his father had originally emigrated from in 1819.³ After receiving his law degree, Pope returned to his native land of Canada to article under Edward Palmer back in PEI.⁴ After being called to the bar in 1847, Pope began a successful land agent practice.⁵ His practice became notorious after a few questionable business decisions took place. Pope’s father-in-law falsely convinced a client that the Liberal government at the time would not be interested in purchasing the client’s land.⁶ This caused the client to sell the property to Pope and his business partners for a mere $14,000, who then flipped the property to the Liberal government for nearly double the price.⁷ The deal was dubious, almost on the verge of fraud, but it cemented Pope as a legendary businessman. And we wonder why lawyers often get bad reputations in popular culture?

Fast forward into the 1850s, Pope moved away from his land agent practice, and began a political career. Pope was one of the few Prince Edward Island supporters of Confederation, which led to a deep feud with fellow PEI politician and former legal mentor Edward Palmer.⁸ Both men attended the Charlottetown and Quebec Conferences, with Palmer adamantly against Confederation and Pope in favour.⁹ As a result, the Conservative Party in PEI underwent deep-rooted conflict with regards to a united Canada. The popular vote favoured Palmer becoming Premier of the province, with William Henry Pope (and fellow ally Colonel Gray) needing to accept the harsh reality that Confederation was not popular amongst Islanders.¹⁰

Throughout the 1860s, Pope’s political career began to dwindle. It was rather unexciting until he was appointed to the bench in 1873. Pope was appointed by John A. MacDonald’s government to Prince County Court that year.¹¹ As a judge, Pope focussed extensively on pushing for Prince Edward Island’s inclusion in a united Canada.¹² Pope aggressively advocated this position even when it was still unpopular to do so. His passion for Confederation was evident throughout his judicial career, and likely impacted many of his decisions. In this role, Pope’s legal record was outstanding, with only two decisions out of thousands ever being appealed.¹³

With his death, Pope leaves behind an impressive legacy. Pope’s admirable career as a judge seems to make up for questionable land agent tactics nearly 30 years prior. Further, he will always be remembered as one of the few Islanders willing to stand up for Confederation, and help push the country into a united state.

 

 

¹ Ian R Robertson, “William Henry Pope” (16 January 2008), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/william-henry-pope/> [Robertson, “William”].

² Ibid.

³ Robertson, “Pope, William Henry”, online: (2003) 10 Dictionary of Canadian Biography <www.biographi.ca/en/bio/pope_william_henry_10E.html> [Robertson, “Pope”].

⁴ Ibid.

⁵ Robertson, “William” supra note 1.

⁶ Ibid.

⁷ Ibid.

⁸ Robertson, “Pope” supra note 3.

⁹ Ibid.

¹⁰ Ibid.

¹¹ Ibid.

¹² Ibid.

¹³ Ibid.

Sir Alexander Campbell: Father of Confederation and Trusted Advisor

Sir Alexander Campbell was born on March 9, 1822 in Yorkshire, England.[1] A year later, his family moved to Canada, moving around until they settled in Kingston, Ontario in 1836. It was there that Campbell was eventually called to the bar. As a young boy, he received a high standard of education, during which he studied French, among other things.[2]  Unknown to him at the time, his French education would later help facilitate his political career. Once called to the bar, Campbell articled under John A. Macdonald and practiced with him for some time after, becoming his law partner in 1843.[3] The partnership dissolved, however, in 1849 when both men decided to enter politics. Regardless, their relationship stayed intact and would remain very important throughout Campbell’s political career.

It was not until 1850 that Campbell entered the political area, becoming an alderman in Kingston. He held that position for two years, after which he left for the national scene, though he returned to municipal politics years later. After proving to be a powerful figure in Kingston politics, he was elected to the Legislature of Canada in 1858 for the Cataraqui district. Three years later, Macdonald contacted Campbell to become a member of his cabinet. He refused, as Macdonald would not include other Conservatives in his cabinet. Campbell instead served a short stint as speaker of the house in 1863.

In 1864 he was given an opportunity to form government following Adam Johnston Fergusson Blair’s failure to do the same. Unfortunately, Campbell failed, too. He was not reputed to be a leader, and his failure reflected that characterization.[4] Rather, he was thought of as an manager. Specifically, he was a useful, organized and safe person to have around, and politicians recognized those qualities. Following his failure to form government, Campbell secured a position as the Commissioner of Crown Lands, a major political position in Canada at the time.[5] As Commissioner, he attended the Charlottetown and Quebec conferences. It was there that he gained his status as a ‘Father of Confederation’. Campbell viewed the conferences as an “opportunity to influence thought”[6] and there he advocated for Confederation. He was one of eight delegates sent to the conferences to represent the Province of Canada.[7] 

After Confederation in 1867, Campbell was called to the Senate. He served in many other important governmental roles including Postmaster General, Minister of the Interior, and Minister of Justice.[8] However, after 1867, he never again ran for elected office. He also led the opposition in the Senate for many years, which he left in 1887 to become the Lieutenant-Governor of Ontario, a position he held until his death.[9]

In 1885, when Louis Riel was captured, Campbell served as Minister of Justice.[10] Campbell insisted that Riel be tried in Regina, rather than Winnipeg. A Winnipeg trial may have resulted in a non-guilty verdict, which Campbell viewed as a “miscarriage of justice”. This decision showed his traditionalist and narrow style.

Outside of his political and legal careers, Campbell was heavily involved in other business and community efforts in Kingston and area.[11] He served as the Dean of the Faculty of Law at Queen’s University in Kingston, and had business interests in railway companies, insurance companies, and banks. His business ventures allowed him to create lucrative relationships that helped him in his political career. For example, Campbell was vice-president of the Isolated Risk Fire Insurance Company. Alexander Mackenzie, the second Prime Minister of Canada, was the president of the company. He also had connections with many prominent Kingston families, including the Cartwright and Campbell families.

Sir Alexander Campbell is remembered for his role as a trusted advisor to important government officials and a political manager.[12] He is best known, however, as an attendant of the Charlottetown and Quebec conferences. 

 

[1] “Sir Alexander Campbell” in The Canadian Encyclopedia, by Mel Hurtig (Canada: The Canadian Encyclopedia, 2001), online: <www.thecanadianencyclopedia.ca/en/article/sir-alexander-campbell/> [Hurtig]; Canada, Library of Parliament, “The Hon Sir Alexander Campbell”, Parliamentarian File, online: <www.lop.parl.gc.ca/ParlInfo/Files/Parliamentarian.aspx?Item=0ddd1e27-0568-4aa0-a1dc-2d2ccd31e2a9&Language=E&Section=FederalExperience> [Parliament].

[2] Donald Swainson, Dictionary of Canadian Biography (Toronto: University of Toronto/Université Laval, 1990), sub verbo “Campbell, Sir Alexander”, online:  <www.biographi.ca/en/bio/campbell_alexander_12E.html>.

[3] Hurtig, supra note 1.

[4] Library and Archives Canada, "Sir Alexander Campbell", Canadian Confederation, People, online: <www.collectionscanada.gc.ca/confederation/023001-4000.10-e.html> [Canadian Confederation].

[5] Swainson, supra note 2.

[6] Hurtig, supra note 1.

[7] Library and Archives Canada, "The Fathers", Province of Canada Delegates, online: <epe.lac-bac.gc.ca/100/200/301/ic/can_digital_collections/charlottetown/fathers/campbell.html>. 

[8] Canadian Confederation, supra note 4.

[9] Hurtig, supra note 1.

[10] Swainson, supra note 2.

[11] Ibid.

[12] Hurtig, supra note 1.

Charles Tupper: Father of Confederation

This week, we are going to look at some of the Fathers of Confederation.  While we are going to devote a week to exploring the roles that notable women played in our country’s founding, we are going to start with the guys.  Today, we begin with an underdog who rose to Canada’s highest office, if only for a short time.

The Right Honourable Sir Charles Tupper is considered by some to be a mere footnote in Canada's history. After all, his biggest claim to fame is that he holds the dubious distinction of being Canada's shortest-serving Prime Minister. Instead of focusing on this, we will look to his accomplishments preceding his 69-day term as our sixth Prime Minister.

Tupper held a significant role in Canada's Confederation, as he was Nova Scotia's premier from 1864 to 1867. He was originally against the idea of unification with the other British North American colonies due to his belief that the smaller colonies would lose significant autonomy. However, he eventually reconsidered this position in light of the vast economic advantages that Nova Scotia would gain as a result of confederation.

When the American civil war broke out, Tupper, along with many of the other Fathers of Confederation, saw a threat to British interests. They feared that the war would eventually spill north of the 49th parallel. The concern was that, after winning against the Confederacy, Union commanders would keep the momentum of their large army and set their sights on conquering British colonies as well.  The importance of a strong British North America was no longer simply a matter of economics for Tupper. He believed that Nova Scotia's autonomy could best be protected by allying with the other British North American colonies, and that their very survival depended on it.

Originally, Tupper, as a co-chairman of the Charlottetown Conference, had simply proposed uniting the Maritime provinces to this end. When John A. Macdonald threw his hat into the ring in 1864, Tupper welcomed him with open arms, seizing the opportunity to draw the might of the Province of Canada into the fold.

Later that year, Confederation hit its first roadblock. The French-speaking representatives to the Quebec Conference felt that they had far more to lose in terms of of autonomy than the other colonies. Tupper shrewdly saw this reluctance as a way to have it both ways, in that he could now lobby for Confederation, but also for greater autonomy of the provinces. In order to get the French on board, Tupper argued for a strong federal government, but also agreed that the legislatures of the colonies should retain some of their power, and ensured that some form of regional representation would be enshrined in the upper house of the national legislature.

While Nova Scotia ultimately took an economic hit due to some of the finer details of the agreement, Tupper's contributions to Confederation are undeniable. He helped form the composition of what would become Canada's senate, as well as assisted in laying the groundwork for our federalist system and division of powers, as seen in ss 91-92 of the Constitution Act, 1867¹.

Not too shabby for a short-timer.

 

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

Goodbye Deirdre, Hello Allison!

We are excited to introduce our newest member of the team, Allison Numerow. She will be attempting to replace the irreplaceable Deirdre Fleming as the fifth member of the Law and Social Media team. Allison is a second-year student here at the University of Alberta Faculty of Law. As a 20-something born into the age of technology, she is eager to use social media to connect readers to topics relevant to the Constitution and to continue to develop her research and writing skills. She’s excited to join the other bloggers and bring you thought-provoking and creative posts every day!

Born and raised in Calgary, Allison left Texas of the North when she turned 18 to attend McGill University. There she achieved a Bachelor of Arts in Psychology. During her four years in Montreal, she worked in two music cognition laboratories, running experiments on willing victims… I mean students. She conducted experiments on both how babies respond to musical stimuli and dance, as well as the effects that different types of music had on neutral visual stimuli. Outside of classes Allison was a member of a pop music a cappella ensemble because she wanted her life to resemble Pitch Perfect (and still does!).

In the final year of her degree, Allison realized that her education would, of course, require more education. Hence, after graduation she found herself at U of A Law. Allison used her first year at the U of A to educate herself both on the law as well as contemporary issues in the legal world. As she soon discovered, Constitutional Law was her favourite class. Law and Social Media provides a platform for Allison to explore the Constitution and its impact on current issues, evolving case law, and other relevant topics. As a classically trained singer and Harry Potter “nerd”, she is excited to combine her interests with the Constitution. This semester, she will explore popular music from 1867, as well as the potential constitutional issues in some of the laws of the magical wizarding world, to name a few. She will also explore other important and up-and-coming topics including drones and Dolly the Sheep.

When she isn’t watching the Bachelor, Allison is busy working on her colour-by-numbers colouring book. Her friends and family say she’s too old for such hobbies, but she insists that when you have no artistic ability, creative assistance is necessary.

Could Trump be Trump in Canada?

Tomorrow, Donald J. Trump will be officially sworn in as the 45th President of the United States. Here in Canada, two of the candidates for the leadership of the Conservative Party have been described as “Canada’s Trump”: Kelly Leitch and Kevin O’Leary. Leitch has gained that unfavourable comparison due to her statements about “Canadian culture” which her critics call xenophobic.¹ O’Leary admits his similar resume (both men are business tycoons and reality TV stars), but is quite clear that he has drastically different social policies.² But could either of these people take up the toxic rhetoric that Trump is so known for?

American case law establishes a very narrow window to forbid hate speech. The case law comes from Brandenburg v. Ohio.³ This Supreme Court decision overturned the conviction of a Ku Klux Klan leader for spreading hate. The Court found that advocating for discrimination and hate was insufficient to justify an exception to the First Amendment protections of freedom of speech and criminal prosecution. The appropriate threshold was incitement to imminent violence. Even an act as obviously aggressive as burning a cross was considered unpunishable for the content of the speech in R.A.V. v. City of St. Paul.⁴ The closest case for our purposes would be Snyder v. Phelps, an attempt to prevent the Westboro Baptist Church from brandishing their homophobic signs.⁵ These cases demonstrate the high threshold required to ban outrageous and objectionable speech.

In Canada, we tilt the balance toward protecting people’s right to feel safe from discrimination. Our leading case on the subject is R. v. Keegstra.⁶ Mr. Keegstra was an  Alberta Social Studies teacher who taught Holocaust denial and other anti-Semitic conspiracy theories to his students. He was prosecuted under section 319(2) of the Criminal Code, which criminalizes the promotion of hatred against an identifiable group.⁷ This decision of the Supreme Court of Canada takes into account the reasons that freedom of expression is protected by s. 2(b) of the Charter.⁸

The SCC considered the spirit of s. 2(b), and decided that it was designed to foster democracy and help people further (socially appropriate) aspirations. Hate propaganda was found to be inconsistent with those principles, making it easier to justify infringement. An application of the Oakes test (the test in Canadian law for justification of infringement of a Charter right), found hate propaganda to be substantially harmful, and the limits set by s. 319(2) of the Criminal Code, in that they could not be overly impairing on the right and must be proportional to the objectives.⁹ This justified the criminalization of hate propaganda, done in accordance with s 1 of the Charter, which allows infringement of Charter rights when necessary.¹⁰

So what about Trump? It would likely be a difficult case. Trump is rarely explicit in his intention to promote hatred of minority groups, despite having that effect. After an attack by his supporters on a homeless Latino man he characterized them as passionate people who had gotten carried away, rather than repudiating their terrible actions. Even his infamous comments about Mexicans being “rapists and drug dealers” were qualified with “some, I assume, are good people”. Moreover, this comments were limited to accusing the Mexican government of sending “undesirables”. His only comments that may be be prosecutable under our laws are his promises to ban and register Muslims.¹¹

Canada and the United States both enshrine freedom of expression in our Constitutions. We both treat these rights as vitally important, but not without exception. In Canada, our exceptions are larger and more nuanced than theirs. However, even the Canadian threshold for what constitutes hate speech is fairly high. For all the awful things someone could say, very little of it would be subject to prosecution. I only hope that if the time ever comes such statements are subject to a massive loss of votes.

 

¹Thomas Walkom, “Canada could have it’s own Donald Trump”, Editorial, The Star (November 14, 2016), online: <www.thestar.com>.

²Josh Elliot, “O'Leary Committee Sees 'Clear Path to Victory' for Conservative leadership”, CTV News (12 January 2016), online: <www.ctvnews.ca/politics/o-leary-committee-sees-clear-path-to-victory-for-conservative-leadership-1.3238107>.

³(1969), 395 US 444.

⁴(1992), 505 US 377.

⁵(2011), 562 US 443.

⁶[1990] 3 SCR 697, [1990] SCJ No 131.

⁷Criminal Code, RSC 1985, C c-46, s 319(2).

⁸Canadian Charter of Rights and Freedoms, s 2(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

⁹Keegstra, supra note 6.

¹⁰Charter, supra note 8, s 1.

¹¹Lydia O’Connor and Daniel Marans, “Here Are 13 Examples Of Donald Trump Being Racist”, Huffington Post (29 February 2016), online: <http://www.huffingtonpost.com/entry/donald-trump-racist-examples_us_56d47177e4b03260bf777e83>.

What to Expect from The Dominion - Winter Term 2017

Are you planning to celebrate the 150th anniversary of Canada’s Confederation? Will July 1st, 2017, be a regular Canada Day celebration for you? Or do you even celebrate Canada Day at all?

Our first week back blogging introduces the new semester and reminds readers why this project is important to us, the writers, as law students. Each week follows a different theme; Mondays’ posts introduce each one.

A year ago the Law and Social Media team wrote collectively as Ms. Suffragette to celebrate the 100th anniversary of women’s voting rights in Alberta. One week was dedicated to the Famous Five women who challenged the meaning of the word “person”. In the spirit of celebrating influential Canadian politicians, next week’s theme is Founding Fathers of Confederation.

Ever the egalitarians, later in the term we will biograph Women of Confederation. We recognize individuals who made history by working hard for what they believed in. Like suffragists who advocated and agitated for political rights, the Founding Fathers and Mothers of Confederation wanted to change the governing structure of early “Canada”.

Some of our posts, like yesterday’s, review the Centre for Constitutional Studies speaking events. The CCS regularly hosts acclaimed legal experts who make constitutional law both informative and fun.

As we wrote last semester, Confederation and the preceding decades did not establish a foundation of equality and independence for indigenous peoples living in British North America. Therefore, as we recognize Canada’s sesquicentenary, we are mindful that it can be problematic to celebrate laws that created a legacy of Indigenous oppression. Reconciliation and healing must be part of our collective future and we will explore this in light of celebrations of the birth of modern Canada as we know it. In the words of Chief Dr. Robert Joseph, “Our future, and the well-being of all our children rests with the kind of relationship we build today.”

Also last semester, we introduced the constitutional division of powers between the federal and provincial governments (sections 91 and 92 of the Constitution Act, 1867). These distinctions between duties and powers delegated to the respective levels of government pervade our legal system and case law on jurisdiction. Therefore, we will expand on it further using interesting topics like polygamy, firearms, and even a shout-out to the annual student-run Law Show in February.

The federal Department of Canadian Heritage is promoting nationwide celebration projects. For example, one of the official signature projects focuses on engaging Canadians—coast to coast to coast—in reconciliation. The University of Alberta will host some projects as well; click here to check them out.

Most Canadian cities host events sporadically throughout the year. If you’re in Edmonton (as we are) make sure you check out Ice on Whyte (we will be!). It’s coming up soon to take advantage of the cooler temperatures and features ice carving and other family-friendly activities. Although Ice on Whyte is in its 14th year, this year it also boasts activities to celebrate Canada 150.

Over the next 12 weeks, we’ll keep you posted on more fun and interesting events that help understand the reasons for the BNA Act and why its successor, the 1982 Constitution, is so fundamental to living in Canada. So stay tuned!

Calling Hieronymous Merkin

Seen today in  UK paper  - The Independent 17 Jan 2017 - in an article by Grace Dent titled "Nigel Farage knows there is money to made in acting like a Trump supporter" - and then found online for your enjoyment.  You'll find the full article online here. Coincidentally, the slang term that which caught my attention happens to have a North American meaning that's almost as good, in context, as the UK meaning.  

 

Freedom of the Press (some restrictions apply)

This past Wednesday, the Centre for Constitutional Studies hosted a presentation by Matthew Woodley of Reynolds Mirth Richards & Farmer LLP. Woodley has been practicing media law for twelve years and gave a great speech asking, “Do we have a free press in Canada?”

Woodley began his presentation by expanding on this with the idea that free expression is fundamental to our other rights. The rights enshrined in section 2(b) of the Charter guarantee us “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”¹.  It is important to note that it is not just the rights of the press that are at stake here. Woodley made this point by citing the 1989 landmark Supreme Court of Canada judgment in Edmonton Journal v Alberta (Attorney General), which held that

“freedom of expression "protects listeners as well as speakers". That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings -- the nature of the evidence that was called, the arguments presented, the comments made by the trial judge -- in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in the courts. They as "listeners" or readers have a right to receive this information. Only then can they make an assessment of the institution.  Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media.”²

 

There is strong Canadian jurisprudence that support a free press, specifically with regards to the courts. Woodley specifically mentioned the Dagenais/Mentuck test that limits the extent to which access to court proceedings can be withheld. The best formulation of this test can be found in the SCC's ruling in Toronto Star Newspapers Ltd v Ontario:

The Dagenais test was reaffirmed but somewhat reformulated in Mentuck, where the Crown sought a ban on publication of the names and identities of undercover officers and on the investigative techniques they had used. The Court held in that case that discretionary action to limit freedom of expression in relation to judicial proceedings encompasses a broad variety of interests and that a publication ban should only be ordered when:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice³

 

Additionally, it is important to note that the scope of the test was expanded in the Vancouver Sun reference, which explained that

While the [Dagenais/Mentuck] test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law... is authorized by statute... or under rules of court... The burden of displacing the general rule of openness lies on the party making the application.⁴

 

Even with these strong protections in place, Woodley highlighted two particular areas that are in need of reform. The first concerns protections from defamation lawsuits. He specifically mentioned a phenomenon called “libel chill”, which has the effect of increasing the reluctance of journalists to publish pieces that might land them in court, even if there is a public interest in doing so. There are protections to mitigate against this phenomenon, but the manner in which they are applied is sometimes arbitrary, leaving members of the media uncertain as to whether or not they can safely exercise their rights.

The second area of reform mentioned considered confidential sources and “whistleblower protections”. Again, while there are protections in place, they do not have the same status as things like the privilege shared between lawyers and their clients. As a result, cases involving confidential media sources are assessed on a case-be-case basis, again leaving us with arbitrary and uncertain results.

The arbitrary nature of the applications of these protections for journalists is troublesome, and Woodley’s calls for reform would definitely be an improvement, if only to add some predictability.  It’s difficult to play the game if you don’t know the rules.

The full video of Mr. Woodley's presentation is available on the Centre for Constitutional Studies' YouTube channel. Please click here to be redirected.

 

¹ Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 2(b) [Charter].
² [1989] 2 SCR 1326.
³ 2005 SCC 41.
⁴ Vancouver Sun (Re), 2004 SCC 43 [Vancouver Sun].

 

The Dominion, Back at it Again!

Hello Readers! Here at the Dominion we are happy to be back writing to you about important constitutional topics relating to the British North America Act. After a brief hiatus from the blogging world during our Christmas Break we are back better than ever here in 2017! Thank you for all your support and readership in 2016; we hope to continue to provide you with some insight into important and pressing constitutional issues this semester.

Our team has changed a bit since we last posted. Deirdre Fleming has left for exchange in New Zealand (lucky her!), and Allison Numerow has joined the project in her place. We wish Deirdre all the best on her exchange and we are sure she is having a blast across the pond! Allison will be providing you with a brief introduction later in the week so that you can learn a bit more about her.

Enough about us, now back to the project itself. Did you know that the year 2017 marks Canada’s 150th birthday? Crazy! In honour of this historic year, our law and social media project will be focussing the content exclusively on topics relating to the British North America Act and events celebrating Canada’s sesquicentennial. If you are interested in Canada 150 events on the University of Alberta campus click here! The link will be continuously updated as more events are finalized. We will also be posting links to some Faculty of Law events relating to important constitutional questions! This Thursday the Centre for Constitutional Studies is presenting a discussion entitled “I wanna talk to my lawyer” regarding the right to seek counsel under section 10(b) of the Charter. If you have ever wanted to learn more about the right to counsel from the faculty’s own Professor Steven Penney, come check it out. Click here if you are interested in attending, the location, date and time are listed.

Although majority of our content this semester will focus on Canadian topics, the United States presidential inauguration this upcoming Friday is too important to ignore. With Trump’s inauguration approaching, issues involving freedom of speech are a popular topic within mainstream and social media. Should a president elect be able to say whatever he desires on his own personal social media? Do any regulations exist that prevent such a prominent figure from spewing out hate-filled comments? Is there a difference between regulating mainstream media and personal social media? All of these questions are currently contentious and pressing. To address the controversy surrounding the future United States president, this week we will be focussing on freedom of speech and how the Canadian Charter regulates speech. Check back this week to see what barriers to free speech exist in Canadian society, and whether these barriers would change how Trump is able to present himself in the media.

Purposive Dancing With The Stars - Part 7

     Now I'd like to turn to another issue: that of judicial hubris. You did, after all, raise this in penultimate paragraph of your critique, although you called it "professional hubris".

Purposive Dancing With The Stars - Part 6

       Is there any evidence that contemporaneous with the drafting documents exist. Yes. I’ll insert a few screen captures of search results and an excerpt from one document. The captures at the least provide one a road map of where to start looking. It took me less than an hour to get this information, for what that’s worth. (If an old dinosaur like me is able to find information that easily, imagine what those of you who grew up wired should be able to do?)

[A few of the images - the Hansard listings & the DuckDuckGo search screens need to be replaced with larger versions for easy viewing but, if you enlarge the screen enough, you'll get the point. Something seems to exist.]

 

The Thrill Is Gone: Sardonicism ‘R Us, Part Deux

Or, "what's wrong with the facts of this case, not the result".

You'll find Part One on Slaw.

In this case, the sardonicism will be a bit wryer. Or a bit more ferocious.

As I told a friend, I've decided to adopt his "it is permissible to care (much) less" attitude starting on January 1, 2017. That doesn't mean I'll always live up to the letter of that attitude.

The substance of this note was written late last year. I decided to wait until this year to finish it.

Purposive Dancing With The Stars - Part 5

This part continues the Purposive Dancing article from where it ended in Part 4. When the part stopped, I'd finished providing the background for a scene that takes place in an imaginary version of Alberta, which I called AlberDum. (After all, folks, if Norway, that's right, Norway, could find a way to save a whole chunk of its North Sea oil revenue for rainy day, how smart does one have to be to save even a small but good chunk of Alberta's? Even a good car salesman could figure that out, let alone an Ontario self-exile from the Leaside and Rexdale areas of Toronto (even if he wasn't ever formally a part of the Alberta gov't.) I realize that Alberta's oil wasn't North Sea oil, so maybe it wasn't quite as clean as the European stuff - maybe had a whiff of sulphur or two; if not that then not quite as pure as the European stuff so it required more processing before becoming "saleable" -  but the stream of revenue Alberta got during at least two oil booms was just as "clean".  

 

Purposive Dancing With The Stars - Part 4

This part continues the "article" that started in PDWTS - Part 1.