University of Alberta Faculty of Law Blog

So You Want to be a Lawyer, Huh?

To continue our education themed week, we explore legal education in Canada. Today we compare the increase in availability of legal education between 1867 and 2017. Legal education has certainly expanded over the last 150 years and we’ll provide a small glimpse of just how much.

In 2017, prospective law students have several options of cities, provinces, and institutions to pursue their legal education. There are currently 20 fully approved Canadian law schools, offering both common law and civil law programs.¹ Further, Trinity Western University is considered a new law school and will obtain full approval by the Federation of Law Societies of Canada once their students graduate.²

Prospective students can choose from a wide variety of schools and are able to base their decisions on several factors. Maybe one school is in their hometown? Maybe they are interested in a certain area of law that one school specializes in? Or perhaps they base their choice on reputation? Regardless of what a student is seeking out of their legal education, Canada’s law schools offer many options. If we flashback to 1867 a different picture existed.

The oldest law faculty in Canada is at McGill University, which formally opened in 1848.³ The school opened in response to young professionals who had been independently pursuing legal education and sought classes in a formal program.⁴

The first common law school in Canada opened 16 years after Confederation. Dalhousie’s Schulich School of Law opened its doors in 1883 and “became the model for law schools across Canada and across the British Commonwealth.”⁵ At the time of Confederation individuals seeking a formal law school education only had McGill as an option. Otherwise, they needed to take classes informally.

The University of Alberta is western Canada’s oldest law school, but did not exist at the time of Confederation. There was a large influx of eastern settlers during the 1880s. Many of them were professionals, including lawyers.⁶ By 1898, the Law Society of the Territories formed and created a formal articling process.⁷ The province of Alberta formed in 1905 and the University of Alberta officially opened its doors in 1908.⁸ At that time, the law school was being developed but had not officially opened its doors. The Faculty of Law officially began offering a Bachelor of Laws degree in 1912.⁹

The University of Alberta’s first class only consisted of 8 students, but by the second year 50 students were registered in the program.¹⁰ Although the enrolment numbers increased substantially within a year, they are minuscule compared with the 180 new first-year students the faculty admits currently. Further, when the faculty opened, students were mainly taught through on-the-job articling training right away, and students only took classes part time.¹¹ Now students are expected to take 3 years of full-time academic training before beginning their formal articling experience.

Legal education is increasingly growing in Canada. Every province, excluding Newfoundland and PEI, now houses at least one law school, with future institutions always becoming a possibility. With more locations to study and areas to specialize the possibilities for what legal education can expand into is endless.

 

 

 

¹ “Canadian Law School Programs” (2017), Federation of Law Socities of Canada, online: <ww.flsc.ca/national-initiatives/canadian-law-school-programs/>.

² Ibid.

³ “History of the McGill Faculty of Law” (2017), McGill Faculty of Law, online: <www.mcgill.ca/law/about/history>.

⁴ Ibid.

⁵ “History & Tradition” (2017), Schulich School of Law, online: <www.dal.ca/faculty/law/about/history-of-schulich-school-of-law.html>.

⁶ “History of the Faculty of Law” (2017), University of Alberta Faculty of Law, online: <www.ualberta.ca/law/about/history>.

⁷ Ibid.

⁸ Ibid.

9 Ibid.

¹⁰ Ibid.

[11] Ibid.

Education Week: We have more Work to do Beyond “Celebrating” #Canada150

This week, as students at the University of Alberta Faculty of Law return to classes after Reading Break, The Dominion explores education in Canada. Today we make the case for strengthening Indigenous culture and history in Canadian school curricula and is in support of Calls to Action 7 to 16 of the Truth and Reconciliation Commission of Canada.

By excluding Indigenous culture and experience from school curricula we minimize the experiences of First Nations people. This makes it more difficult to break the “ripple effects”[1] of our colonial past. Last semester we wrote about Canada’s coercive assimilation policy under the Indian Act and the cultural genocide of residential schools. As many Canadians celebrate 150 years of the “birth” of their nation, they must be mindful of the original communities that colonists displaced. The effects of residential school abuse and forced adoption trauma remain with many survivors today and continue to impact subsequent generations.

Over the last 150 years, Canada created a hostile living environment for many First Nations people. Therefore, some Canadians note that the word “celebrate” does a disservice to people whose lives were impaired under the Indian Act.[2] Stephen Paquette is co-chair of Ontario’s Halton District School Board’s Indigenous Education Advisory Council. Paquette suggested to Prime Minister Justin Trudeau and Ontario Premier Kathleen Wynne that we replace the word “celebrating” with “acknowledging.”[3]

Section 93 of the Constitution Act, 1867 gives provincial legislatures the jurisdiction to manage education.[4] The federal government has jurisdiction over education that occurs on federal First Nations reserves.[5] Unfortunately, federal per-student funding for First Nations students is less than the average provincial per-student funding for off-reserve education.[6]

In her article on transforming education in First Nations communities, Jessica Ball notes that incorporating into education Indigenous knowledge alongside Eurowestern theory, research, and practice can improve the education and employment positions of First Nations children.[7] Compared to the overall population, the First Nations population is young: 40% are under age 20.[8] This suggests that First Nations communities have a wealth of young minds to offer society.

Considering the recent history of residential schools and forced adoption, all Canadians can benefit from an inclusion of Indigenous knowledge. For Canada150, we can celebrate the Canada of which we are proud. But we can’t ignore the sacrifices that many families endured at the hands of colonial education systems. By “acknowledging” instead of “celebrating”, it forces us to recognize that our colonial government 150 years ago made some mistakes by attempting to manage the Indigenous population. Click here for ways that you can engage in reconciliation.

 

[1] Robert Laboucane, “Canada’s Aboriginal Education Crisis” (2010) 28:7 Windspeaker, online: The Aboriginal Multi-Media Society < http://www.ammsa.com/publications/windspeaker/canada%E2%80%99s-aboriginal-education-crisis-column>.

[2] Doreen Nicoll, “Canada 150: What’s for Indigenous People to ‘Celebrate,” exactly?” Now Toronto (22 February 2017), online: NOW Communications Inc <https://nowtoronto.com/news/canada-150-what-s-to-celebrate-for-indigenous-people/>.

[3] RSC, 1984, c I-5.

[4] 30 & 31 Victoria, c 3 (UK).

[5] Ibid, s 91(24).

[6] Laboucane, supra note 1 ; Don Drummond & Ellen Kachuck Rosenbluth, “The Debate on First Nations Education Funding: Mind the Gap” (2013) School of Policy Studies, Queen’s University, Working Paper No 49, online: https://qspace.library.queensu.ca/bitstream/handle/1974/14846/Drummond_et_al_2013_Debate_on_First_Nations.pdf;jsessionid=47F565DE66243A277E4D98969FAAE902?sequence=1>. But see Ravina Bains, Myths and Realities of First Nations Education (2014) Fraser Institute Centre for Aboriginal Policy Studies, online: Fraser Institute  https://www.fraserinstitute.org/sites/default/files/myths-and-realities-of-first-nations-education.pdf> (“elementary and secondary students on reserve receive on average the same amount as other Canadian students, an in some cases more”).

[7] Jessica Ball, “As if Indigenous Knowledge and Communities Mattered: Transformative Education in First Nations Communities in Canada,” 28:3 The American Indian Quarterly 454, online: <https://doi.org/10.1353/aiq.2004.0090>.

[8] Ibid at 455.

Let Loose the Dogs of Yukon Heritage Day!

If we were to ask any non-Canadian what they know about Heritage Day, we would likely be met with a look of confusion. Truth be told, if we were to ask any Canadian the same question, it is likely that they might only know their province's version of it. Here in Alberta, where it is celebrated in August, it is often simply referred to as “August Long”, and frequently used to camp or travel.

Many provinces celebrate Heritage Day on the third Monday of February. It was originally created in 1973 by the Heritage Canada Foundation¹ and was intended to be a national holiday. Due to Parliamentary shenanigans, this national holiday failed to be passed into law, so many of the provinces celebrated however they pleased. For some of them, it meant doing nothing until some time later, when they enacted their own provincial statutes to establish the holiday.

Yukon Territory, on the other hand, was an early adopter. In 1975, Yukon had assumed that Parliament would pass the Bill to establish a National Heritage Day. In response, the territory established their own Heritage Day on the Friday preceding the last Sunday in February. Further, they wrote the holiday into the union contract for territorial employees². With the new law in place and the contract ratified, the holiday could not be easily removed. Consequently, many non-government employees in the Yukon also now enjoy the holiday.

Whitehorse, the capital of Yukon Territory hosts the week-long “Yukon Sourdough Rendezvous”, which is a festival with something for literally everyone. Based on the names and descriptions alone, our favourites include the Chainsaw Chuck (not to be confused with the Axe Throw later in the day), the Hair Freezing Contest (sponsored by a local hot tub company), and various dogsled-related events, culminating in a Dog Howling Contest.

We love that this holiday and its accompanying festival showcase one of the best things about Canada. As Canadians, we can all relate not only because we like to have fun, but also that we have a habit of poking a little fun at ourselves. The great people of Yukon Territory have done a great job of finding the perfect balance of recognizing and celebrating their unique culture, while having some lighthearted fun.

For those of us unable to make the trip to Whitehorse this weekend, Heritage Yukon invites those of us who use social media to use the hashtag #mycanadais to help celebrate the 150th anniversary of this diverse country that we share.

 

¹ “Heritage Day: Canadian Holiday” in Encyclopaedia Britannica (Encyclopaedia Britannica: 2017) online: <https://www.britannica.com/topic/Heritage-Day-Canadian-holiday>.
² Gail Kudelik, “Provincial and Territorial Holidays” in Canadian Encyclopedia (Historica Canada: 2015) online: <www.thecanadianencyclopedia.ca/en/article/provincial-and-territorial-holidays>.

Insecurity About Security Certificates

Today is the tenth anniversary of the Supreme Court of Canada’s [SCC] decision in Charkaoui v. Canada (Citizenship and Immigration).¹ This decision centred on the Canadian government’s procedure on issuing security certificates. These certificates are used to identify non-citizens who might be a risk to public safety. The SCC forced the federal government to amend the Immigration and Refugee Protection Act [IRPA] to ensure its constitutionality.²

The legal question that  Mr. Charkaoui’s Constitutional challenge presented was how the government should balance its responsibility to protect the safety of its citizens and to remain accountable to constitutional values and democracy.³ The security certificate provisions in the IRPA tried to balance these issues by giving the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness the authority to  issue “security certificates” to detain and deport non-citizens deemed to be a danger to public safety. These certificates and the detention based on them were reviewed by a judge, but the evidence on which they were based did not have to be disclosed to the subject of the certificate. This was a major violation of habeas corpus, the idea that someone must be charged with a specific crime to be kept in custody.⁴ The SCC held that this violated sections 7, 9, and 10(c) of the Charter.⁵ Most of the violations fell under s. 7, the right to life, liberty, and security of the person.⁶

Section 7 specifies that life, liberty, and security (usually liberty) can be deprived “in accordance with the principles of fundamental justice”.⁷ The provisions violated the principle of fundamental justice of fair procedure.⁸ The individual affected was entitled to a hearing before a judge but the SCC’s concerns with the hearing were twofold. Firstly with the appearance of impartiality of the judge and secondly with the accused’s inability to raise a proper defence. Both issues stem from the secret nature of the incriminating evidence.⁹

When the judge reviewed the secret evidence, they would have to be alone with the government lawyers. No representative of the accused was allowed to be present.¹⁰ This was concerning because the judge may appear to be acting as an agent of the state and that their role in the process was investigative and defense-oriented.¹¹ Canada’s judicial system is adversarial, not inquisitorial, which aims to maintain the impartiality of judges.

One of the SCC’s suggestions was to establish specially cleared legal counsel to represent the person named in the certificate.¹² The federal government used this method to bring the legislation into compliance with the Charter. The new provisions direct the Minister of Justice to establish a list of special advocates.¹³ They have the responsibility to challenge the claim that evidence must be kept secret and to challenge the relevance, reliability, and sufficiency of the information when it is to be kept secret.¹⁴

Security certificates recognize that some things must be kept secret in order to safeguard public safety. However, that safety must not  come at the expense of the fundamental rights and freedoms guaranteed by the Charter. The special advocates system ensures that people being held or deported based on secret information have someone to represent them throughout the process, just as anyone else accused of a criminal offence is afforded that right.

 

¹2007 SCC 9, 1 SCR 350.

²SC 2001, c 27.

³Supra note 1 at para 1.

⁴Ibid at para 2.

⁵Canadian Charter of Rights and Freedoms, ss 7, 9, and 10(c), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

⁶Supra, note 1, at para 3.

⁷Supra, note 5, at s 7.

⁸Ibid at para 28.

⁹Ibid at para 31.

¹⁰Ibid at para 35.

¹¹Ibid at para 36.

¹²Ibid at para 70.

¹³Supra note 2, s 85(1).

¹⁴Ibid s 85.1(2).

It's Dolly the Sheep's Anniversary!

Today, February 22nd, marks the 20th anniversary since Dolly the Sheep was announced to the public. She was the first successfully cloned mammal and lived until the age of 6. Dolly was unique because she was cloned from an adult cell rather than from embryonic cells.¹

She was born in Edinburgh, Scotland, at the Roslin Institute on July 5th, 1996, and yes, she was actually “born” in the traditional sense. DNA from a sheep cell was inserted into an egg and implanted into a sheep. Tests confirmed that Dolly’s DNA is wholly her mother’s DNA, not that of the surrogate mom.

With this announcement came a flood of ethical and legal questions, including: Is cloning allowed? Are the laws surrounding cloning constitutional?

Animal Cloning

Cloning animals in Canada is legal. Starting with Dolly, labs have begun to clone other animals. At McGill University in 2007, researchers cloned Canada’s first pig.² The McGill lab has been contacted by other labs at Canadian universities to clone animals for research.

Though animal cloning is legal, there are restrictions in place on what can be done with the animals. Health Canada created an interim policy in 2003, stating that any food to be sold from cloned animals must first pass a safety assessment.³ Health Canada was concerned that the method of cloning posed safety concerns.       

There are also ethical concerns with cloning animals. In the United States, there are companies that will clone your pet!⁴ You can actually pay a company $50,000 to get a DNA-identical version of your dog.

A 2010 study by Ipsos Reid for Agriculture Canada showed that over half of Canadians found animal cloning unacceptable.⁵ Only 16% thought cloning animals was tolerable.

Human Cloning

Human cloning has been outlawed in Canada for years. Sections 5(1) and 9 of the Assisted Human Reproduction Act prohibits the creation of a human clone or transplanting a human clone into a human being.⁶ Unlike some other countries, a person cannot knowingly create a human clone for any purpose or use in Canada, with some exceptions for research purposes.⁷ Specifically, research on embryos may be permitted if a proper license is obtained, and if the researchers adhere to the proper regulatory oversight.⁸

In comparison, US federal laws permit human cloning for limited purposes.⁹

Is Human Cloning Constitutional?

Professor Barbara Billingsley, from right here at the University of Alberta’s Faculty of Law, has considered the question of whether the cloning prohibitions in the AHRA unjustifiably infringe on Canadians’ section 2(b) right of freedom of expression to create non-reproductive human clones.¹⁰ To find infringement, the act of human cloning must first be determined to be a form of expression.

She notes that although Canadian courts have not yet ruled on whether medical research is a form of expression, there have been comments from the courts that indicate that it would be likely.¹¹ Assuming it does infringe, Billingsley found that the bans in the AHRA likely infringe Canadians’ constitutional rights, in that they infringe the pursuit of truth in the scientific community, and/or ‘human flourishing’.¹²

Billingsley did not conclude whether the right would be justifiably infringed. She stated that policy reasons behind the ban were unclear and the lack of case law on the subject prevents an adequate guide for such an analysis.¹³

In contrast, the US has grappled with cloning within the context of the First Amendment. Specifically, scientists claim that the “right to research” falls within the First Amendment because it “challenges or explores cultural or political norms, which, is an act of rebellion … in the spirit of the First Amendment.”¹⁴ Unlike in Canada, there are no federal laws currently outlawing human cloning.¹⁵

 

¹“1997: Dolly the Sheep is Cloned”, BBC News, online: <news.bbc.co.uk/onthisday/hi/dates/stories/february/22/newsid_4245000/4245877.stm>.

²Michael Bourguignon, “Cloned Pigs a First in Canada”, McGill Reporter (6 December 2007), online: <https://www.mcgill.ca/reporter/40/08/pigs/>.

³www.hc-sc.gc.ca/fn-an/legislation/pol/pol-cloned_animal-clones_animaux-eng.php

⁴see www.myfriendagain.com.

⁵Sarah Schmidt, “Canadians Leery of Cloned Animals”, Canada.com (5 October 2010), online: <www.canada.com/health/Most+Canadians+leery+cloned+animals/3628765/story.html>.

⁶Assisted Human Reproduction Act, SC 2004, c 2.

⁷Health Canada, “Prohibitions Related to Scientific Research and Clinical Applications”, (Ottawa: 9 January 2014), online: <www.hc-sc.gc.ca/dhp-mps/brgtherap/legislation/reprod/research-recherche-eng.php#fnb2-ref>.

⁸UNESCO, National Legislation Concerning Human Reproductive and Therapeutic Cloning (Paris: 2004) at 5, online: <unesdoc.unesco.org/images/0013/001342/134277e.pdf>.

⁹Health Canada, supra note 7.

¹⁰Barbara Billingsley, “A Constitutional Analysis of the Proposed Ban on Non-Reproductive Human Cloning: An Unjustified Violation of Freedom of Expression?” (2002) 11:1 Health L Rev 32, online: <www.hli.ualberta.ca/HealthLawJournals/~/media/hli/Publications/HLR/11-1-billingsleyfrm.pdf>.

¹¹Ibid.

¹²Ibid.

¹³Ibid.

¹⁴Wesley J Smith, “Constitutional Cloning”, The Weekly Standard (8 September 2004), online: <www.weeklystandard.com/constitutional-cloning/article/5908>.

¹⁵“Cloning: Frequently Asked Questions”, NPR, online: <www.npr.org/news/specials/cloning/faq_blanknav.html>.

This Should Never Be Necessary and Should Not Have Been Needed: Once Is Too Many

yet it did happen, in my experience, regularly. To lawyers on either side of a case.

Shrugging it off with a "trial judges are human and make mistakes" isn't a good answer.

Equivalent conduct on a football (soccer) pitch would get you at least a yellow card, maybe even a red card.

The hockey equivalent is probably a 10 minute if not a game misconduct for unsportsmanlike behaviour.

Most experienced enough litigators have had trials where one of the grounds of appeal they wanted to make was that the trial judge was biased and the bias affected the result or at least there's a reasonable basis for concluding that the bias may have affected the result.

That's a difficult argument to win except in egregious cases. If one is lucky, there are also significant enough errors of fact and law that will allow the appellate court to to intervene without having to deal with the actual or apparent bias issue at all.

The case below is an apparent example. I have set out excerpts.

 

Promoting Cultural Diversity on International Mother Language Day

 

We continue our week of notable Canadian dates with coverage of International Mother Language Day. Did you know that February 21st is actually a significant day throughout the world? Eighteen years ago the United Nations declared February 21st International Mother Language Day to celebrate and promote cultural diversity, multiculturalism, and multilingualism.¹

 

International Mother Language Day was created to help preserve linguistic diversity and encourage individuals to celebrate their unique cultures. There are roughly 7,000 unique languages spoken worldwide with 96% spoken by only 4% of the world’s population.²  Further, of the 7,000 languages only a few hundred are used in formal education systems, and even fewer are used in the digital media world.³ These statistics suggest that international awareness and appreciation of these cultures should to be encouraged. This is why the UN formally recognizes International Mother Language Day to raise awareness of minority language issues and encourage individuals to continue to pass on their unique languages.

 

Mayor Don Iveson formally recognized International Mother Language Day in the city of Edmonton in 2015. Over a third of Edmontonians speak a language other than French or English in their homes.⁴ As a multicultural nation, the city believed that they had a duty to promote, encourage, and accept the use of non-official languages. Mayor Iveson believes that “Keeping languages alive is important for the richness of our culture and the diversity that strengthens Edmonton.”⁵

 

The theme for 2017 is “Towards Sustainable Futures through Multilingual Education.”⁶ The goal this year is to promote the availability of multilingual education throughout the world. UNESCO Director-General Irina Bokova has launched an appeal for the use of “multilingual education to be acknowledged everywhere, in education and administrative systems, in cultural expressions and the media, cyberspace and trade."⁷ Bokova believes that increasing the availability of multilingual education will help prepare students for success. Students learn fundamental reading and writing skills in school but these skills are fostered when they are able to learn them in their mother tongue.⁸ Thus, increasing the number of languages in these institutions is necessary.

 

We hope that International Mother Languages Day will continue to raise awareness for minority language issues. We are excited to see how the UN appeal unfolds, and hopefully more language education options become available.

 

¹ “International Mother Language Day 21 February” (2016), United Nations, online: <www.un.org/en/events/motherlanguageday/>.

² Ibid.

³ Ibid.

⁴ Claire Theobold, “International Mother Language Day declared in Edmonton”, Edmonton Sun (21 February 2015), online: <www.edmontonsun.com/2015/02/21/international-mother-language-day-declared-in-edmonton>.

⁵ Ibid.

⁶ “International”, supra note 1.

⁷ Ibid

⁸ Ibid.

Happy Louis Riel Day!

Happy Family Day Readers! As you are enjoying your day off from work, or the beginning of Reading Week for those students out there, we bring you a brief biography of Louis Riel.

In Alberta, we celebrate this statutory holiday “Family Day”; but move a bit more east and Manitoba is celebrating “Louis Riel Day.” In honour of this holiday, we bring you a brief introduction into Louis Riel’s life and involvement in Confederation.

Louis Riel is considered to be one of Canada’s greatest Metis advocates. Riel, the oldest of 11 children, was born on October 22, 1844.¹ His paternal grandmother was a Franco-Chipewyan Métisse and passed her Aboriginal ancestry through to Riel’s family.² Riel grew up in a close and religious family and attended Catholic school. Archbishop Tache took great interest in Riel early on; arranging for Riel to take classes at Petit Séminaire de Montréal to enter the priesthood.³ Throughout his college career, Riel was known for wild mood swings and bouts of deep depression.⁴ He eventually dropped out of college in 1865, one year after receiving news that his father had passed away.⁵ After dropping out, Riel returned to Red River to help support his family.⁶

A few years later Riel began to make his political mark when the Hudson’s Bay Company made plans to sell Rupert’s Land and the North Western Territory to the Dominion of Canada.⁷ Metis people in this area were concerned that an influx of Anglo-Protestants would take over their unique social, cultural and political status.⁸ To protect their culture and interests, the Metis in the area created the Metis National Committee to represent them, with Riel being elected as secretary and eventually president.⁹ As the Committee’s president Riel advocated for the protection of Metis rights to ensure their culture would be protected when Manitoba eventually entered into Confederation.

Riel was an aggressive advocate for minority rights in Manitoba, and this aggression may have led to his demise. In 1885, Riel was charged with treason for the shooting of Thomas Scott.¹⁰ Scott was a member of Canada First, a group that believed Metis and French Canadians had no place in Confederation.¹¹ As tensions grew between the Metis and Canada First, Riel made the brash decision to execute Scott. Riel’s lawyers tried to defend the charge using the insanity defence. Riel was adamantly against the insanity plea, believing it would discredit Metis people’s legitimate complaints against the Canadian government.¹² The trial concluded with Riel delivering a lengthy speech proving his sanity, which meant he was sentenced to death.¹³ French Canadians took issue with Riel’s execution, and to this day some believe he was sentenced to death due to his Metis heritage.¹⁴

Today, Louis Riel is officially recognized as the “Founder of Manitoba” by the Canadian government.¹⁵ Beginning in 2007, Manitoba recognizes the third Monday in February as Louis Riel Day, to honour his relentless fight to protect Metis and other minority rights.¹⁶ Louis Riel embodied many qualities that Canadians pride themselves on, accepting, cooperative, and multi-cultural. Honouring his work during Confederation is worthwhile.

 

 

¹ Adam Gaudry, “Louis Riel” (22 April 2013), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/louis-riel/>.

² Lewis H Thomas, “Riel, Louis (1844-85)” (1982), online: 11 Dictionary of Canadian Biography, <www.biographi.ca/en/bio/riel_louis_1844_85_11E.html>.

³ Ibid.

⁴ Ibid.

⁵ Ibid.

⁶ Ibid.

⁷ Gaudry, supra note 1.

⁸ Ibid.

⁹ Ibid.

¹⁰ Ibid.

¹¹ “The Execution of Thomas Scott” (2001), CBC Learning, online: <www.cbc.ca/history/EPCONTENTSE1EP9CH2PA4LE.html>.

¹² Gaudry, supra note 1.

¹³ Ibid.

¹⁴ Thomas, supra note 2.

¹⁵ Government of Manitoba, “Journee Louis Riel Day”, (2008).

¹⁶ Ibid.

Anne Brown - THE Mother of Confederation

George Brown (1818-1880) was a political figure instrumental in Confederation, as well as a prominent newspaperman. In fact, his Globe merged with another paper after his death to become The Globe and Mail.

Today's post is not about him.

Instead, we remember his wife Anne Brown (née Nelson, 1827-1906). She is remarkable not for simply being married to George, but for the influence that she was able to exert over him. Before they had met in 1862, George had a reputation for being “cheerless and severe”¹. After meeting the more cultured and better educated Anne, George quickly fell for her. Her good nature and intellect began to wear down his curmudgeonly demeanour.

When George re-entered politics shortly after their their 1863 wedding, he wrote to his wife nearly every single day. It is unknown how often she wrote back, as he often destroyed her letters. He was disillusioned with politics and frequently regretted taking office in the Legislative Assembly of Upper Canada. His wife and daughter brought him a great deal of happiness, but being away from them took a toll on him.

By 1864, George was selected as the chairman of a committee that devised a plan for a federal system of government, with a clear division of powers between the national government and their provincial counterparts. He felt the weight of the upcoming negotiations, and wrote the following to Anne:

How I do wish you were here to advise me. You cannot tell how I wish you had been. But never mind, I will try to do my duty to the country in such a manner as you my dearest Anne, will not be ashamed of.²

Although George had executed his work chairing the committee, he remained reluctant to ally politically with George-Etienne Cartier and John A. Macdonald, his longtime political rivals. If not for Anne's level-headed influence over her husband, Confederation would possibly have seen an insurmountable hurdle in the conflict between George and his foes. So strong was Anne's effect in leading her husband to a more rational mindset that it has been suggested that “perhaps the real father of Confederation was Mrs. Brown.” ³

As we've stated in previous posts, there were no official records that survive of the Charlottetown Conference or the subsequent Quebec Conference. Fortunately, for those of us living more than a century and a half after those monumental meetings, George Brown was somewhat of a chatterbox, and sent pretty much everything to his beloved Anne. And by everything, we don't mean just details of the meetings that took place and the progress that was being made that would eventually unite British North America. He also sent the dinner menus.

After the groundwork was laid for Confederation, George and Anne decided as a family that he should resign from politics. Upon his resignation being accepted, he sent a telegram home: “Thank Providence – I am a free man once more.”

Ultimately, the Browns’ tale is a love story. George’s demeanour changed after meeting Anne. Her kindness transformed him from a bitter and disillusioned politician into a man willing to forgive past feuds and consider the bigger picture.

Canada owes a great debt to Anne Brown. Without her positive influence over her husband, there exists a very real possibility that our country would not exist in its current form. Further, without her correspondence with George, the events, and yes, the dinner menus, of the historic conferences in Charlottetown and Quebec may have been lost to history.

George’s biographer referred to Anne not as “a Mother of Confederation”, but as “the Mother of Confederation”⁴.

¹ Julia Skikavich, “Anne Brown” in Canadian Encyclopedia (Historica Canada: 2015) online: <www.thecanadianencyclopedia.ca/en/article/anne-nelson-brown>.
² Letter from George Brown to Anne Brown (20 June 1864).
³ Richard J Gwyn, John A: The Man Who Made Us: The Life and Times of Sir John A Macdonald (Toronto: Random House, 2009) vol 1 at 272.
⁴ James MS Careless, “George Brown and the Mother of Confederation” Report of the Annual Meeting Canadian Historical Association (1960) [emphasis added].

Who Wears the Pants in Confederation? Luce Cuvillier

Luce Cuvillier lived from 1817 until 1900.¹ During her life she saw Upper and Lower Canada unite together and then with other colonies of British North America in Confederation. She is often mentioned as the mistress of George-Etienne Cartier, but she was much more than that.

Luce Cuvillier was the youngest of eight children, born to wealthy Montreal politician and businessman Augustin Cuvillier. Her cousin, who she was raised with, established a religious order known as the Sisters of Providence. Cuvillier worked with this organization, doing fundraising for their women’s shelters. She was one of the wealthy women who organized annual fancy dinners for the women in the shelters. Cuvillier would listen to the stories the old women told while passing around tobacco and generally being a friendly host. Suvillier also worked as an intermediary for the the Sisters on business and real estate deals.²

Her business dealings were one of the things which made Cuvillier unusual for a Victorian woman. After the death of her father in 1849, Cuvillier and her brothers inherited his business, and Cuvillier & Sons soon came to be called Cuvillier & Co. She was known to have a “head for figures” and assisted her brother Maurice with his five stores and 16 properties. Cuvillier managed her properties well and owned both a town and a country estate, where she would smoke cigars and scandalously wear pants while gardening. Her wisdom and competence were known among her friends, family, and acquaintances. She was unmarried but was still made guardian of her brother-in-law’s daughter after his death.³

While she never married, she had a long-term love affair with George-Etienne Cartier, one of the Fathers of Confederation. When they first started seeing each other he took to staying at a hotel near both their houses.⁴ By the end of the 1860s they were living together, and took trips to Europe together. She was with him when he died in France in 1873.⁵ Their affair was an open secret, and she often accompanied him to high society events in Montreal.⁶ It was through her that he developed an interest in country living, and she managed the estate she encouraged him to buy.⁷

Luce Cuvillier was a woman who defied convention in the Victorian era. Of course there were probably many such women in Canada at the time. It is a sad irony that their names are all but forgotten and hers is remembered only because of her relationship with a famous man.

 

¹“Luce Cuvillier”, The Canadian Encyclopedia, online: <http://www.thecanadianencyclopedia.ca/en/article/luce-cuvillier/>.

²Ibid.

³Ibid.

⁴Moira Dann, “Where were the Mothers of Confederation?”, The Globe and Mail (28 August 2009), online: <http://www.theglobeandmail.com/opinion/where-were-the-mothers-of-confederation/article4284401/>.

⁵Brian J Young, George-Etienne Cartier: Montreal Bourgeois (Montreal: McGill-Queen’s University Press, 1981), p 35.

⁶Ibid, p 34.

⁷Ibid, p 43.

A Message From The Dean of the University of Toronto Faculty of Law

http://www.law.utoronto.ca/news/message-dean-ed-iacobucci-quebec-attack-and-us-travel-ban

in part

President Meric Gertler issued a statement yesterday expressing dismay at recent events in the United States.  He spoke on behalf of all of us when he said that discrimination on the basis of nationality or birthplace is antithetical to the University of Toronto’s, and indeed Canada’s values.  At the Faculty of Law, we have a special responsibility to champion the rule of law.  This week’s seemingly cavalier dismissals of international norms and shared legal understandings by the U.S. President are especially troubling for our community.  Our thoughts are also with the Muslim community and Quebecers over the recent murders in Quebec. For President Gertler’s comments on the Quebec tragedy, please see the following link.

It's National Flag of Canada Day!

Today is National Flag of Canada Day! 52 years ago our flag, maple leaf and all, was raised for the first time on Parliament Hill.¹ 

The Great Flag Debate

The journey to selecting a new flag was not straightforward. There was both passionate support of and staunch opposition to a new flag. Particularly, members of the Royal Canadian Legion did not approve of a design change; they had served Canada under the Red Ensign and considered it an affront to veterans’ service.² At a speech in Winnipeg on May 17, 1964, then Prime Minister Lester B. Pearson spoke to delegates who wore Red Ensign pins as protest to Pearson’s proposition for change.³ There was outrage at the suggestion that Canada needed a new flag. This event started the Great Flag Debate.

Pearson stuck to his belief that Canada needed a new flag that represented all Canadians. Until then they had used both the Union Jack and Red Ensign, which connected Canada to its British heritage. In a time with rising Quebec Nationalism, Pearson viewed national unity of the utmost importance.

However, his proposal for a new flag did not unite the country. Rather, it created a divide between tradition and independence.⁴ The debate spanned 37 Parliamentary sittings, including over 250 speeches by various parties’ members.⁵ John Diefenbaker arguably presented Pearson’s biggest obstacle, opposing him throughout the debate. Diefenbaker demanded that Pearson hold a referendum on the question of the flag, and publicly disagreed with the single maple leaf flag design, among other things.⁶

Hesitantly, Pearson forced a vote on December 15, 1964, using the rules of closure. Parliament voted in favour of the new flag.

The Design

Many ideas were brought forward, but were eventually narrowed down. Three of the proposed flags are below: 

 

The three-pronged maple leaf was designed by Alan Beddoe, a Canadian artist and heraldry expert.⁷ The blue stripes on either side of the flag, as seen above, represented “from sea to sea”.⁸ Pearson loved this design, and it later came to be known as “Pearson’s Pennant”.⁹

The middle flag was a mix of emblems that had represented Canada until 1964, as well as the new maple leaf. John Diefenbaker preferred this flag as it included both French and English emblems.¹⁰

John Matheson, a Member of Parliament from Ontario, brought forward the single maple leaf flag, as designed by Dr. George Stanley and Patrick Reid.¹¹ Stanley was the Dean of Arts at the Royal Military College in Kingston; Reid was the director of the Canadian government exhibition commission.¹²

The red and white flag was appealing for a few reasons. First, those colours were declared Canada’s colors by King George V. Second, since the early 20th century all Canadian Olympic athletes had worn a red and white emblem at the games. Maurice Bourget, Speaker of the Senate, stated, “the flag is the symbol of the nation’s unity, for it, beyond any doubt, represents all the citizens of Canada without distinction of race, language, belief or opinion”.¹³ The maple leaf was already a recognized symbol of Canada.

The red and white maple leaf design became the official flag of Canada on February 15th, 1965.

Reception

Jumping ahead to the present, the Canadian flag is accepted largely by Canadians as a symbol of the country. All over the world, the maple leaf flag is identifiable as ours.¹⁴ Canadians can be seen travelling with maple leafs visible on their belongings, showing their pride for Canada. Though it may not be universally celebrated or accepted, the stark animosity that once surrounded the flag discussions has subsided and is largely replaced by celebration and pride.

 

¹Government of Canada, "National Flag of Canada Day", (25 January 2017), online: <http://canada.pch.gc.ca/eng/1449158599459>.

²Allan Levine, "The Great Flag Debate", Canada's History (15 February 2015), online: <http://www.canadashistory.ca/Magazine/Online-Extension/Articles/The-Great-Flag-Debate>.

³Levine, ibid.

⁴Lee-Anne Goodman, "Canadian flag, now beloved, came into being amid bitter national brawl", CBC News (12 February 2015), online: <http://www.cbc.ca/news/politics/canadian-flag-now-beloved-came-into-being-amid-bitter-national-brawl-1.2954433>.

⁵"The Great Flag Debate", CBC Learning (2001), online: ,http://www.cbc.ca/history/EPISCONTENTSE1EP16CH1PA2LE.html>.

⁶Levine, supra note 2.

⁷Government of Canada, "History of the National Flag of Canada", (13 September 2016), online: <http://canada.pch.gc.ca/eng/1444133232512>.

⁸Diefenbaker Canada Centre Archives, "Pearson's Pennant" (2003), online: <http://scaa.usask.ca/gallery/flagdisplay/pearson.htm>.

⁹Diefenbaker, ibid. 

¹⁰Diefenbaker, supra note 8.

¹¹Library and Archives Canada, "Alan Beddoe", biography, online: <http://collectionscanada.gc.ca/pam_archives/index.php?fuseaction=genitem.displayItem&lang=eng&rec_nbr=104827>.; John Mackie, "Obituary: The remarkable life of Patrick Reid", Vancouver Sun (11 December 2015), online: <http://www.vancouversun.com/obituary+remarkable+life+patrick+reid/11583916/story.html>.

¹²Reid, ibid; History, supra note 7.

¹³History, ibid.

¹⁴History, ibid.

¹⁵ Paul Luke, "50 years of the Maple Leaf: How Canada's much loved flag initially divided the nation", The Province (15 February 2015), online: <http://www.theprovince.com/news/years+maple+leaf+canada+much+loved+flag+initially+divided+nation/10812716/story.html>.

Mercy Anne Coles: Socialite-qua-Historian

Today’s post explores the social atmosphere surrounding Confederation by examining some excerpts of the diary of Mercy Anne Coles. Coles may not have had a direct influence on Confederation but as a young woman she accompanied her father, the first Premier of Prince Edward Island (PEI), to social events and documented her experiences in detail.

In her upcoming book Miss Confederation: The Diary of Mercy Ann Coles, Anne McDonald argues that “without [Coles’] diary, ‘Confederation history is incomplete.’”[1] Her diary demonstrates that behind-the-scenes political networking was critical, which the record of official conference meetings in Charlottetown and Quebec did not include.[2]

As many business professionals will attest, social networking outside the office can offer opportunities such as getting a job, a mentor, or increased clientele. As law students, we are encouraged to participate in extracurricular activities such as rounds of golf or dinner engagements to build and strengthen relationships with future employers, colleagues, and clients. The old adage, “deals are made on the golf course” has some truth to it.[3]

As the daughter of a prominent politician, Coles interacted with the high powered drivers of Confederation. These included Sir John A. Macdonald, who may have flirted with her; George Brown, who described her as attractive and intelligent; and Dr. Charles Tupper, who treated her in his capacity as a physician.[4]

Some attendees used pre-Confederation social events as an opportunity to introduce their unmarried daughters to potential suitors.[5] Despite being quite popular among gentlemen at various dance balls and dinners, the young Ms. Coles’ social interactions might have been politically motivated, rather than romantically.[6] On one hand, she had many dance partners and men seemed to take kindly to her. On the other hand, as PEI journalist and politician Edward Whelan wrote:

[Politicians] are cunning fellows; and there’s no doubt that it is all done for a political purpose; they know if they can dance themselves into the affections of the wives and daughters of the country, the men will certainly become an easy conquest.[7]

Coles’ father needed a great deal of persuasion to buy into the idea of Confederation. As Premier of PEI, his agenda did not align well with that of the larger provinces.[8] Although her father and her family were well recognized, the parties did not serve the anticipated matchmaking function.[9]

Though history tends to be written by men and about men, the preservation of Mercy Coles’ diary demonstrates how women played an important role in recording history and indirectly influencing political moments, even before they had the right to vote.

 

[1] Christa Z Thomas, “Stepping Out”, Women of Confederation (17 November 2014), online: The Women of Confederation <women-of-confederation.ca/tag/mercy-ann-coles>.

[2] Gillian Goerz, “Mercy Anne Coles”, Historica Canada (2015), online: The Canadian Encyclopedia <www.thecanadianencyclopedia.ca/en/article/mercy-anne-coles/>.

[3] RG, “Why Golfers Get Ahead,” The Economist (21 November 2011), online: <www.economist.com/blogs/gametheory/2011/11/golf-and-business>.

[4] Goerz, supra note 2; Thomas, supra note 1.

[5] Ibid.

[6] Goerz, supra note 2.

[7] Goerz, ibid; Thomas, supra note 1.

[8] Goerz, ibid.

[9] Ibid.

Enough about Queen Bey, let’s talk about Queen V!*

Having recently reviewed some prominent Fathers of Confederation, this week we focus on Mothers of Confederation. Without a doubt, the most prominent and important female influence of Confederation was Queen Victoria.

Queen Victoria’s connection with Canada went beyond merely sitting as monarch over a colony. Her father, Prince Edward, Duke of Kent, lived in Quebec and the Maritimes for the better part of a decade.[1] Canada’s smallest province, Prince Edward Island, was named after him.

Queen Victoria was Canada’s ultimate political signatory to enact Confederation. It was an appealing mechanism with which to unite French- and English-speaking residents, to facilitate trade among the regions, and to stave off American invasion.[2] Some Canadian and British politicians reasoned that the US would be more likely to conquer Canada if the regions remained separate British colonies. Therefore, Confederation not only internally united Ontario, Quebec, and the Maritimes, it also protected the region from external threats.

One of Queen Victoria’s first steps to uniting British North America was to ease tensions after the rebellion uprisings in Upper and Lower Canada.[3] The rebellions started in 1837, the year Victoria ascended to the throne, and continued to 1839. She granted amnesties to rebels as early as 1838, allowed the Governor General to issue special pardons in 1843, and granted completed pardons for anyone involved in the rebellions through the Amnesty Act in 1849.[4] One former rebel became a father of Confederation, which speaks to the Queen’s work in reconciliation.

In a further commitment to maintain harmony in her colony, Queen Victoria directly met with First Nations leaders before Confederation. Her children appear to have continued that commitment by visiting Canada and meeting with First Nations leaders to listen to political needs and concerns.[5]

Although her father and five of her children visited Canada, Queen Victoria never did.[6] Moreover, one critic wrote that Queen Victoria’s personal diary seems dismissive of major Canadian events.[7] On May 22, 1867, the Queen noted only briefly that she attended the final meeting to authorize Confederation. And on July 1st, 1867, Queen Victoria wrote of her daughter’s fifth wedding anniversary and of the weather, with no mention of Canada.[8]

Other historians note that the Queen never stopped grieving her husband’s death in 1861.[9] Perhaps, though committed to Canada’s political interests, she merely reflected in her personal journal without considering whether 150 years later we would analyze her private thoughts.

Whatever her motivation for her personal diary, Queen Victoria’s motivation for Confederation was echoed by those who were on the ground in British North America. Confederation had political motives that transcended those among the colonies. As Canada’s Queen, Victoria made her mark on Canada and we continue to celebrate her reign with the annual Victoria Day long weekend.

 

*Just kidding; we love Queen Bey.

[1] Arthur Bousfield, “Queen Victoria, 1837-1901: Mother of Confederation,” Canadian Royal Heritage Trust (2013), online: <crht.ca/queen-victoria-mother-of-confederation/>; Carolyn Harris, “Queen Victoria and Canada,” Queen’s Alumni Review, Queen’s University (2016), online: <www.queensu.ca/gazette/alumnireview/stories/queen-victoria-and-canada>.

[2] Library and Archives Canada, Government of Canada “How Canada was Formed,” Politics and Government, Library and Archives Canada online: <https://www.collectionscanada.gc.ca/confederation/kids/023002-1010-e.html>; Canada History, “The London Conference,” CanadaHistory.com (2013), online: <http://www.canadahistory.com/sections/eras/confederation/London.html>.

[3] Harris, supra note 1.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Randy Boswell, “Queen Victoria, the ‘Mother of Confederation,’ Made No Mention of the Event in her Diary,” Postmedia Network Inc (25 May 2012) Canada.com, online: <www.canada.com/news/Queen+Victoria+Mother+Confederation+made+mention+event+diary/6679733/story.html>.

[8] Ibid.

[9] Bousfield, supra note 1; Harris, supra note 1.

Someday We'll Find It, The Rainbow Connection

It is important to identify that none of the contributors to The Dominion self-identify as members of the LGBT community. We recognize that, today, we are writing about things that we haven't personally experienced and that our ability to competently write on this issue is limited. We also recognize that the abbreviation “LGBT” is considered by many to be incomplete. We have chosen to err on the side of simplicity and familiarity. It is not our intent to offend. We apologize for any shortcomings that appear below.

 

One might assume that LGBT rights in Canada were worse the further one delves back into our history. This would be incorrect. While LGBT rights in 1867 were nowhere near what they are today, it's important to note that things actually got a lot worse before they got better.

In 1867, there were “buggery” laws on the books,¹ and this crime was punishable by death in British North America. As abhorrent as this is, these were inherited laws from Great Britain and officials on this side of the pond simply didn't see fit to impose the punishment. While there were many people sentenced to death for this “crime,” there are no records of this sentence being carried out. Instead, the convicted were pardoned or had their sentences commuted.

As unjust as this position was, in 1948 the Criminal Code was amended to label gay men as “criminal sexual psychopaths”, as well as to provide for indeterminate prison sentences.² In the 1950s and 1960s, a pseudoscientific device known as the “fruit machine” was employed to identify gay men.  These men were deemed to be ineligible for government jobs, including the Canadian Forces and the Royal Canadian Mounted Police.³ This signified a low point for LGBT rights in Canada.

In 1968, Minister of Justice John Turner introduced The Criminal Law Amendment Act, 1968-69, an omnibus bill that decriminalized homosexuality.⁴ His predecessor, Pierre Trudeau, who had introduced an earlier version of the Bill, famously commented that “there's no place for the state in the bedrooms of the nation”.

Of course, mere decriminalization was insufficient, and systemic discrimination against LGBT people was still a problem. It still is, but things have started to get better. The advent of the Canadian Charter of Rights and Freedoms⁵ in 1982 brought forth important protection against discrimination for segments of the population that were identified as minority groups.⁶ Sexual orientation was NOT included.

It was not until 1995⁷ that the Supreme Court of Canada “read-in” sexual orientation to s. 15 of the Charter. In 1998⁸ the Court went a step further and ensured that provincial human rights statutes needed to be interpreted as if sexual orientation was deemed to be a prohibited ground for discrimination. This was held to be so, regardless of the intention of the provincial governments when crafting their legislation. The next year, the Court ruled on the landmark case M. v. H.⁹ allowing for same sex marriage in Canada, later resulting in the federal Civil Marriage Act¹⁰ which codified this right.

While these measures have undoubtedly improved life for gay, lesbian, and bisexual people the battle for equality has just begun for those with non-traditional gender expressions and identities. An Act to Amend the Canadian Human Rights Act and the Criminal Code is currently before Parliament to add protections from discrimination on these grounds.¹¹

Legislation is not enough. The systemic discrimination that has resulted in unfair treatment to these minority groups are not going to disappear by the mere stroke of a pen. While good law is indeed necessary, it is not sufficient.

To those of our readers in law school, legal professions, politics, and others who occupy positions of power or are going to in the future, consider this a call to arms. If our country is going to keep advancing against intolerance, we need to help lead the charge. We must decide how we are to use the influence that will invariably be entrusted to us, and we must do so fearlessly.

Intolerance and hate have dominated for far too long. For what it's worth, we're choosing love. We hope that you'll join us.

 

¹ Consolidated Statutes of Canada 1859, c 91, s 22.
² RSC 1927, c 36.
³ Gary W Kinsman, Dieter K Buse & Mercedes Steedman, Whose National Security?: Canadian State Surveillance and the Creation of Enemies (Canada: Between the Lines, 2000).
⁴ SC 1968-69, c 38.
⁵ Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982, c 11 [Charter].
⁶ Ibid at s 15.
⁷ Egan v Canada, [1995] 2 SCR 513.
⁸ Vriend v Alberta, [1998] 1 SCR 493.
⁹ [1999] 2 SCR 3.
¹⁰ SC 2005, c 33.
¹¹ Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code, 1st Sess, 42nd Parl, 2016.

The World Around Us - 1867 and 2017

Canada is and always has been part of an interconnected world. There is always a balance of powers, but those relationships can change and shift. The world is a very different place than it was in 1867.

 

It was an age of empires in 1867. It was the day when “the sun never set on the British Empire.” Canada was one of many colonies directly controlled by the United Kingdom, including New Zealand, Australia, India, and South Africa.¹ Confederation was not independence from the United Kingdom, but rather an administrative division.² Canadians in 1867 were subjects, not citizens, and foreign policy (in particular military) decisions were not made internally until the Statute of Westminster in 1931.³ Today, most of the former British colonies are fully independent nations. We are part of a loose, primarily symbolic group known as the Commonwealth.⁴

 

Two of the other largest, most important empires at the time no longer exist. The Austro-Hungarian Empire spread from Austria, through the Balkans, and parts of what is now Italy.⁵ The Ottoman Turks controlled most of the Middle East from Turkey to Iraq and everything in between, including Syria and Saudi Arabia.⁶ They extended into Europe, but not as much as they once had. Austria and Russia had been gnawing away at their borders for over a century.⁷ Both states ended up on the losing side of World War I and were dismembered, leaving the map looking more like it does today.⁸ Germany, usually thought of today as the leading nation in Europe,⁹ was a collection of extremely small states until 1871.¹⁰

 

Russia was and still is a sprawling state, stretching from a rump in Eastern Europe across the top of Asia. Russia in 1867 was rapidly modernizing in an attempt to be taken more seriously as a European power.¹¹ Russia today is similarly trying to rebuild its sphere of influence after “losing” the Cold War.¹² The key difference is that Russia in 1867 was trying to get accepted into the European system,₁₃ while Russia today sets itself apart from “The West.”¹⁴

 

Whereas Russia is in the most similar position of modern world powers, the United States is in the most different. The idea of the USA as a major world power would have seemed ridiculous in 1867. They were still reeling from their own Civil War, which ended in 1865, a nation with deep division and instability.¹⁵ They had only recently spread across the continent, incorporating the southwest after war with Mexico in 1848.¹⁶ The expansionist tendency of the Americans was a major reason for the establishment of Confederation here in Canada.¹⁷ However, regarding global presence they primarily favoured isolationism outside of the western hemisphere until entering World War I in 1917.¹⁸

 

China has also risen on the world stage in the last 150 years. In 1867 the Qing Dynasty ostensibly ruled over China. However, after a series of wars with Britain over the opium trade they had become subject to a kind of colonialism.¹⁹ China reasserted its independence during the 20th century, starting with the Boxer Rebellion in 1900.²⁰ Today they are an economic and military powerhouse; often regarded as the newest superpower.²¹

 

Over time, the relative powers of different countries rise and fall. The world map in 1867 had a different array of powerful states than what we see today. However, the basic system of great powers and spheres of influence remains the same; empires other names.

 

¹Robin W Winks & Joan Neuberger, Europe and the Making of Modernity (New York: Oxford University Press, 2005), at 263.

²Cole Harris, The Reluctant Land (Vancouver: UBC Press, 2008), at 451.

³1931, 22 Geo V, c 4 (UK).

⁴The Commonwealth, “Our History”, The Commonwealth Network, online <thecommonwealth.org/our-history>.

⁵Robin Okey, The Habsburg Monarchy: From Enlightenment to Eclipse (New York: Palgrave Macmillan, 2002), at 13.

⁶Eric Dorn Brose, A History of Europe in the Twentieth Century (Oxford: Oxford University Press, 2005), p 103-04.

⁷Winks & Neuberger, supra note 1, at 218.

⁸Brose, supra note 6, p 103-4.

⁹Stephen Green, “Germany, The Reluctant Leader of the New Europe”, The Globalist (7 February 2015), online: <https://www.theglobalist.com/germany-the-reluctant-leader-of-the-new-europe/>.

¹⁰“Franco-German War”, in The Encyclopaedia Britannica, online: <https://www.britannica.com/event/Franco-German-War>.

¹¹Winks & Neuberger, supra note 1, at 219.

¹²Roland Oliphant, “Russia and the West Have ‘Entered a New Cold War’”, The Telegraph (23 October 2016), online <www.telegraph.co.uk>.

¹³Winks & Neuberger, supra note 1, at 219.

¹⁴Oliphant, supra note 12.

¹⁵David W Blight, “Ending the War: The Push for National Reconciliation”, in Major Problems in American History vol 2: Since 1865 (Boston: Houghton Mifflin Harcourt, 2009), eds Elizabeth Cobbs Hoffman & Jon Gjerde, at 25.

¹⁶Benjamin Keen & Keith Haynes, A History of Latin America vol 2: Independence to Present (8th edition) (Boston: Houghton Mifflin Harcourt, 2009), at 200.

¹⁷Harris, supra note 2, p 450.

¹⁸Anders Stephanson, “Global Competition and Manifest Destiny on the Cusp of the Twentieth Century,” in Major Problems in American History vol 2: Since 1865 (Boston: Houghton Mifflin Harcourt, 2009), eds Elizabeth Cobbs Hoffman & Jon Gjerde, at 108.

¹⁹Jonathan D Spence, The Search For Modern China (2nd ed) (New York: WW Norton & Company, 1999), at 163.

²⁰Ibid, at 142.

²¹G John Ikenberry, “The Rise of China and the Future of the West”, Foreign Affairs (January/February 2008), online: <www.foreignaffairs.com>.

Then and Now: Judicial Review

To continue this week’s theme of throwbacks, today’s post highlights a lecture on the evolution of judicial review through Canada’s 150 years. The Friends of the University of Alberta presented the Honourable Justice Russell Brown at the 2017 H. M. Tory Lecture this week. Justice Brown was an award-winning professor at the Faculty of Law until his meteoric rise to the bench starting in 2013.[1] After approximately a year and change at each of the Courts of Queen’s Bench and Appeal of Alberta, he now sits as a puisne justice at the Supreme Court of Canada.

Justice Brown discussed the importance of judicial review in light of the Constitution Act, 1867 (formerly, the BNA Act) and the Constitution Act, 1982, which includes the Charter of Rights and Freedoms.[2]

Canada’s separation of powers includes the executive branch (Prime Minister and Cabinet or Premier and Cabinet, as well as unelected government employees), the legislative branch (federal Members of Parliament or provincial Members of Legislative Assemblies), and the politically independent judicial branch. Judicial review occurs when a court convenes to consider the lawfulness of executive powers or legislation. Often, the primary legislation that delegates power to administrative bodies, such as the Human Rights Tribunal or the Workers’ Compensation Board, will allow a party to appeal decisions of that body to a court.[3]

Before the 1982 patriation of the Constitution, the BNA Act gave Parliament the sovereignty to enact any law it desired because the Constitution was enacted to be “similar in principle to that of the United Kingdom.”[4] Technically, Parliament still enjoys this right. However, in 1982 the new Constitution was given “Primacy” or supremacy over all other laws enacted by legislative or executive power.[5] This means that Canada’s courts can review legislation to ensure that it does not conflict with Canada’s body of constitutional law (including the Charter).

Between 1867 and 1981, courts reviewed legislation primarily to ensure that the Canadian federal system was maintained: that federal Parliament and provincial legislatures enacted laws according to their powers under sections 91 and 92 of the BNA Act, respectively.

From 1982 onward, the judiciary has taken on a more involved role. The introduction of the Charter as part of the supreme law of Canada requires that courts ensure there is a proper and lawful limit to the legislative infringement on the rights and freedoms of individuals.

But rights and freedoms are not absolute; they are subject to reasonable limits as are demonstrably justified in a free and democratic society.[6] Therefore, courts determine not only whether a law infringes on Charter rights, but whether it can be justifiably upheld.

Sometimes judges are accused of judicial activism; of overstepping their role as mere interpreters of the law. As Justice Brown put it, however, judges are more than just interpreters. They are legal referees in this law-versus-Charter-value game. Although legislators tend to enact laws that reflect the will of their electorate, sometimes Canada needs unelected constitutional law specialists to put the interests of, say, minority interests before that of written laws. For Justice Brown, this is true law and it is has evolved beyond interpreting merely questions of jurisdiction.

 

[1] Dean Paul Paton, Faculty of Law, University of Alberta, in his introduction of Brown J, HM Tory Lecture (2017).

[2] 30 & 31 Victoria, c 3 (UK) [Constitution Act, 1867]; being Schedule B to the Canada Act 1982, 1982 c 11 (UK) [Constitution Act, 1982].

[3] Alberta Human Rights Act, RSA 2000, c A-25.5, s 37(1); Workers’ Compensation Act, RSA c W-15, s 13.4(1).  

[4] J Noel Lyon, “The Central Fallacy of Canadian Constitutional Law,” 22 McGill Law Journal 40, online: <www.lawjournal.mcgill.ca/userfiles/other/5264739-02.pdf> at 1; Constitution Act, 1867, supra note 2, Preamble, at para 1.

2000, c W-2.15, s 13.4(1).

[5] Constitution Act, 1982, supra note 2, s 52.

[6] Constitution Act, 1982, ibid, s 1.

Throwing it Back on Tuesday: People Edition

We continue our week examining cultural changes in Canada over the last 150 years with today’s discussion on Canadian demographics. Although the British North America Act does not directly relate to how diverse our population is, Canadian citizens elect politicians and leaders who influence our laws and political climate. As our social makeup changes, so do our values and, in turn, our laws. Today we focus on the people living in the country to understand how Confederation and today’s political climate evolved.

 

When we look back to 1867, Canada’s population looks strikingly different than it does today. Today, Canada prides itself on its multiculturalism and welcoming of immigrants. A flashback to the people of 1867 paints a much different picture. At the time of Confederation, 79% of the Canadian population were born in Canada.¹ The majority of the country’s population grew up with similar cultural and religious values, with Roman Catholicism and Protestants dominating all other religious beliefs.² These religions were so dominant early on in Canada’s formation that our own national anthem even features a reference to “God.” This has created some controversy recently as to whether our national anthem should be modified to reflect our changing social landscape with respect to individual religious views.

 

The immigrant population in 1867 was also widely different than current trends. The biggest immigrant group consisted of French settlers, with English, Welsh, Irish, and Scottish people also making their way to Canada.³ The immigration population at the time consisted of mainly Caucasian Europeans. The majority of these newcomers settled into Upper Canada at the time, with the rest mainly finding a home in Lower Canada.⁴ European immigrants certainly influenced Confederation in 1867, however Indigenous populations inhabited this land long before. By the year of Confederation, historians estimate that 100,000 to 125,000 Indigenous people were living in Canada.⁵

 

When we fast-forward to life in 2017, a much different picture of Canadian people exists. By 2006, Canada had reached an immigrant population of 6.2 million people, which equates to 19.8% of the entire population.⁶ If current trends continue, the immigrant population by the end of 2017 is expected to reach nearly 22% of the population.⁷ Although the percentage of immigrants has remained relatively stable around 20% since Confederation, their origins have become more diverse. Today, immigrants come from every continent in the world, the majority of which are of Asian descent, not European.⁸ With the increase in immigrants, the country has seen a surge in the number of unique languages, cultures, and religions. Specifically, Chinese immigrants have become the leading visible minority group, accounting for roughly 1 million people throughout the country.⁹ Indigenous populations have also substantially grown since Canada’s creation. The 2011 national census reports, that 1,400,685 people (4.3% of the population), consider themselves Aboriginal and over 60 Indigenous languages exist.¹⁰

 

Religion has also changed within the last 150 years. Roman Catholicism is still the most widely practiced religion throughout Canada, representing 38.7% of the entire population.¹¹ While Roman Catholicism continues to have a widespread following, it is not as dominant as it was during Confederation. Further, a variety of new religions are currently practiced throughout the country. Islam, Hinduism, Sikhism, and Buddhism are now common throughout Canada, with 7.2% of Canada's population reporting practicing one of these.¹² The increase in religious diversity is likely the reason some Canadians believe the inclusion of word “God” in our national anthem is no longer appropriate as it tends to connote a Christian reference.

 

Canada is becoming a more diverse place. In 2017, it is hard to pinpoint whom a Canadian is or what they might look or sound like.

 

 

¹ Statistics Canada, “Canadian Statistics in 1867”, (Ottawa: Statistics Canada, 2009), online: </www65.statcan.gc.ca/acyb07/acyb07_0002-eng.htm>.

² Ibid.

³ Ibid.

⁴ Ibid.

⁵ Laura Aylsworth & Frank Trovato, “Demography of Indigenous People” (1 February 2012), The Canadian Encyclopedia, online <www.thecanadianencyclopedia.ca/en/article/aboriginal-people-demography/>.

⁶ Statistics Canada, “Some facts about the demographic and ethnocultural composition of the population”, (Ottawa, Statistics Canada, 2008), online: <www.statcan.gc.ca/pub/91-003-x/2007001/4129904-eng.htm#2>.

⁷ Ibid.

⁸ Ibid.

⁹ Ibid.

¹⁰ Aylsworth & Trovato, supra note 5.

¹¹ Statistics Canada, “2011 National Household Survey: Immigration, place of birth, citizenship, ethnic origin, visible minorities, language and religion”, (Ottawa: Statistics Canada, 2011), online: <www.statcan.gc.ca/daily-quotidien/130508/dq130508b-eng.htm>.

¹² Ibid.

 

The Conrad Blackness of Donald Trump

Flipping the "Could Trump be Trump in Canada" discussion on its head.

In the who is copying whom vein:

Harper era, once upon a time: members of the Harper regime (gov't and its surrogates) including Harper repeatedly attack the competence and integrity of judges who render decisions that the regime dislikes. They do not limit themselves to arguing the decision is wrong in law. The attack on the integrity of the judiciary culminates in an attach by Harper on the integrity of the Chief Justice of Canada.

Trump era, now: members of the Trump regime (gov't and its surrogates) including Trump repeatedly attack the competence and integrity of judges who render decisions that the regime dislikes. They do not limit themselves to arguing the decision is wrong in law. The attack on the integrity of the judiciary has not yet culminated in an attach by Trump on the integrity of the Chief Justice of the US Supreme Court but that's only a matter of time.

I suppose we could say that Trump is copying from Harper's playbook but judge bashing is a traditional authoritarian tactic so we can't blame that on the Harper-era Conservative regime.

Far more importantly, though, in fairness to and to former Prime Minister Harper's credit, on the whole I doubt he'd now let Donald Trump clean out the Centre Block toilets let alone into a Prime Ministerial circle of trusted advisers. I'll concede that notwithstanding Mike Duffy if only because Harper would then have had to choose between the overall integrity of Nigel Wright and Donald Trump. That should have been a "no-brainer" even the Conservative cabals of the Harper era.

Finally, in defence of the "true" Canadian brand of (small "c") conservatism - whatever that content might be - it probably means something that Conrad Black has stopped writing his hagiographical, obsequious, articles on Trump in the National Post.

Look at Black's last fawning "missed-terpiece" in the Post on http://news.nationalpost.com/full-comment/conrad-black-donald-trump-understands-america-in-ways-smug-canadians-cant. You don't have to be as cynical as, or as sardonic as, I profess to be to wonder if, and conclude that, Black was commencing a campaign that he expected would culminate in the coming revelation of an already promised, albeit not in writing, Presidential Pardon by the U.S. Commander-in-Chief from his criminal convictions. (I mean Black's criminal convictions. Can Trump pardon himself from his own convictions yet to come? I suspect not, given that Nixon needed Ford.)

Do you think even Conrad Black would stoop to writing that piece, now?

Consider the claims in these sentences, or excerpts from sentences, which end the Black article and what the facts now show. I'll simply set out the sentences, or excerpts, so that you may draw your own conclusions. Bear in mind that Conrad Black's view of facts seems sometimes in the alternative reality realm, too.

.........."Fortunately, Trump is not at all xenophobic, fascistic, racist or sexist."

..........[Trump] is also not an advocate of “corporate-military-statism” ...

.........Trump saw that the U.S. system had become an anthill of corruption and hypocrisy and called it that. He promised to drain the swamp, and will do it; it will be a changed America in six months ...."

.......... "In this analysis, it is not the president-elect who has been sleepwalking through Fantasyland; he saw the American crisis plainly and launched one of history’s great democratic political movements to deal with it."

.......... "The pure snowmen of the North plod cheerily on in Santa Lawrence Martin’s workshop, like happy elves incanting “High ho, high ho, there’s nothing about the U.S. we don’t know.” But there is."

I wonder what Conrad Black would now say it is that Canadians don't know about the U.S.? Does it smell like Steve Bannon? 

What does it mean to Canadian (large or small "c") conservatism that even Conrad Black should now, and seemingly does now since he had gone silent in print, have difficulty coming to Donald Trump's defence. 

Music Monday: Throwback to 1867

As a further tribute to our faculty’s annual Law Show this past weekend, this week’s blog theme will focus on differences in pop culture between 1867 and 2017. It’s the week of throwbacks! We will compare people who lived in and around 1867 with people today who make similar cultural contributions, 150 years later. Though not directly in concert with the BNA Act, it is evident that culture and politics intertwine. To kick off this throwback week, we begin with a musical comparison.

Considering that popular music styles evolved quickly in the 20th century, it’s safe to say that music was drastically different in 1867. In western music culture, it was the romantic period. Music was expressive, emotional, and it produced legends like Beethoven and Schumann (Robert and Clara!). They had only pens, paper, and their own minds and experiences to inspire their music.

Nowadays, our musical influences include Justin Bieber, Kanye West, and Beyonce, not to mention the endless sources on the internet from which artists can get inspiration. We have digital online music writing programs and online instruments, making music easier than ever to compose, perform, and share. John Adams, a 20th and 21st century minimalist composer, warned about the overuse of technology in music composition, stating,

“We’re in danger of an overflow of extremely mediocre music… partly because composing has become dangerously easy. Everyone can carry around software programs on a laptop and compose a new piece in a single evening. But the trouble is, of course, that the software dictates the parameters of what you can do, how you can think”.¹

While there are downfalls in the modern age of music composition, music is unique in that the finished product can exist forever, electronically. Composers and musicians are not just working with and against their contemporaries; they do so also with those who came before them. In this 21st century contemporary post-modern era of music, we see composers taking influence from all areas of music, and from all time periods to give listeners new experiences.

For example, Adams’ work On the Transmigration of Souls is a choral piece that pays tribute to the victims of the 9/11 attacks. The song does not follow any obvious musical structure, and incorporates whispering, noise, and other non-traditional sounds throughout the composition. As a young child, I performed this work with my choir, and I can attest to the fact that it was not “typical”. In fact, I can recall many rehearsals during which we all struggled to remember the lyrics and flow to this 25 minute-long piece, because to us, it didn’t make musical sense. It incorporated victims’ names and quotes from family members of victims, changing themes and never staying in one “place” for too long. At the time, it seemed like the epitome of post-modern non-sensical music.

Had I dug deeper, I would have discovered that it wasn’t such a far stretch from works of the 19th century. Adams has stated in interviews that he has an obsession with composer Ludwig van Beethoven; that, “we [all] have music that we love so much that we kind of want to get under the skin of that composer, for me taking not so much melodies but just harmonic fragments”.² Adams uses his privileged position as a musician who follows some of our culture’s best composers to incorporate their art into his; creating something new from something old.

Fittingly, we performed On the Transmigration of Souls alongside Beethoven’s Symphony No 9, a 19th century classic. Adams’ piece is a commemoration of those who died in 9/11, intended to provide a “memory space”³ where listeners can be alone.⁴ In contrast, Beethoven’s 9th is a rejoice of freedom. These two songs are performed together all over North America, and tell a story of oppression and mourning and eventual release.⁵

Comparing Adams with Beethoven is only one example of how music between then and now can differ, but still be complementary. By no means do I wish to hear One Direction juxtaposed with Schubert, but to isolate music from 1867 as totally different and irreconcilable with music from today could be a mistake. For choir nerds like me, the ability of musicians to pull influence from 150 years ago is exciting: it leaves open endless possibilities for composers of the future.

¹Guy Dammann, “We Are All Living in Fear”, The Guardian (15 October 2008), online: <www.theguardian.com/music/2008/oct/15/usa>.

²NPR Staff, “John Adams Mines Beethoven’s Mind”, NPR Music (10 November 2015), online: <www.npr.org/sections/deceptivecadence/2015/11/10/450560466/john-adams-mines-beethovens-mind>.

³Tom Huizenga, “John Adams’ Memory Space: ‘On the Transmigration of Souls’”, NPR Music (10 September 2011), online: <www.npr.org/sections/deceptivecadence/2011/09/10/140341459/john-adams-memory-space-on-the-transmigration-of-souls>.

⁴Ibid.

⁵Benjamin Carlson, “What Does Beethoven’s Ninth Symphony Mean”, The Atlantic (7 September 2010), online: <www.theatlantic.com/entertainment/archive/2010/09/what-does-beethovens-ninth-symphony-mean/62556/>.