University of Alberta Faculty of Law Blog

Will We All Be Alive for #Canada300?

Where do I see Canada in the next 150 years? To be honest, I have absolutely no idea. However, with the technological and scientific advances occurring in today’s world, we may all be alive to witness Canada in the year 2167!

At Cambridge University, a researcher named Aubrey de Grey believes he has identified all of the causes of aging, and can overcome them all. By doing so, de Grey claims that humans are capable of living up to 1,000 years old.¹ He is convinced that he understands the theoretical underpinnings of human illness and death and has indicated that 25 years is all the world will need to make his theory a reality.

However, he recognizes that he is a computer scientist, not a human biologist.² S. Jay Olshansky, one of De Grey’s contemporaries, has the human sciences background that de Grey lacks. Olshansky is a professor of Public Health and research associate at the Center on Aging at the University of Chicago.³ His work pursues means to slow down human aging and discovering the “upper limits to human longevity.”⁴

If researchers are successful in extending the human lifespan, what kinds of political obstacles would they face?

Most people are skeptical that humans have the ability to extend their own lives.⁵ People firmly believe in the inevitability of aging and death and the science world is having a hard time changing that perspective.

But how then are pharmaceutical companies who sell “anti-aging products” so successful if the world refuses to buy into the idea of longevity?

These companies are excellent marketing specialists but they do not truly market “living longer.” Rather, they convince people that their products will allow them to remain young while they are alive. They encourage consumers to buy products that they claim will make them look and feel more youthful.

In the United States, pharmaceutical companies can legally sell anti-aging products that are merely placebo.⁶ The FDA allows “cosmeceuticals” to be sold without approval, so long as the product does not contain drugs.⁷

 

There is the additional problem that even if pharmaceutical companies attempted to conduct research on life extension, it would take a lot of money and a lot of time. These companies want to make money and it is not in their interest to invest all that time and money on an unsure bet.

However, if these money powerhouses teamed up with brilliant science minds, it’s impossible to say what they could accomplish.

There are also organizations popping up that provide cryonic freezing: a low temperature method of preserving human bodies in the hope that they can be revived by future medicine.⁸ Currently, this method of preservation is only available after death; you cannot be frozen while alive.

Whether or not you believe in life extension, there are many people working towards that ultimate goal.

So I may be long gone by the time #Canada300 rolls around, but who knows: maybe I won’t be.

¹Caspar Llewellyn Smith, “Aubrey de Grey: We don’t have to get sick as we get older”, The Guardian (1 August 2010), online: <https://www.theguardian.com/technology/2010/aug/01/aubrey-de-grey-ageing-research>.

²Sherwin Nuland, “Do You Want to Live Forever?”, MIT Technology Review (1 February 2005), online: <https://www.technologyreview.com/s/403654/do-you-want-to-live-forever/>.

^3See: https://www.lapetussolutions.com/team.

⁴See Olshansky’s professional website, <www.sjayolshansky.com/sjo/Background.html>.

⁵Richard A Miller, “Extending Life: Scientific Prospects and Political Obstacles” (2002) 80:1 Milbank Q 155 at 155, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2690099/>.

⁶Ibid.

⁷US, US Food and Drug Administration, Cosmeceutical (Silver Spring: MD, US Food and Drug Administration, 2014), online: <https://www.fda.gov/Cosmetics/Labeling/Claims/ucm127064.htm>.

⁸See Alcor, a life extension foundation: <www.alcor.org/FAQs/faq01.html#cryonics>.

We Will Wait Our Turn, Just Not For Too Long

Where do I see Canada in the next 150 years? What an interesting question. I highly doubt I will be alive to witness it, but I have a few minor wishes for my own life time. Rather than focussing on where I think the country will be in 150 years, I am going to explain where I want it to be in ten.

Last year’s presidential election was contentious, controversial, and fascinating all at the same time. An election filled with name-calling, bigotry, media rants, and outright craziness led to one of the most shocking results ever. The world watched as Donald Trump became the 45th President of the United States over Hillary Clinton. A businessman commonly recognized from his appearances on The Apprentice beat out a career politician. Many people thought this was insanity; others prepared for what seems like the start of an apocalyptic movie.

Hillary Clinton’s loss left many women wondering when it will be their turn to hold the highest office in the United States. Will women ever get that chance? How many more years would we wait to shatter the most resilient glass ceiling in the world?

Thankfully, Marie Henein, a named partner at Henein Hutchison reminds us that Canadians should not be patting ourselves on the back yet. We have also never formally elected a female prime minister. The only woman to ever hold the highest seat in our country was the Right Honourable Kim Campbell 24 years ago when Brian Mulroney stepped down from office.¹

When we look at our current political climate it is hard to pinpoint when a woman will even have a chance to be Canada’s Prime Minister. Depending on the outcome of the current Conservative leadership race (click here for our post from last week covering this ), all three major Canadian parties will be led by men, assuming O’Leary wins. Since I have been eligible to vote no serious female contender has been available. So my question moving forward is: when?

While it is easy to point a finger at our neighbours south of the border for their lack of female leadership, we tend to overlook our own.  In fact, out of the 13 Canadian provincial premiers only three are women. Marie Henein was right when she stated that for women in North America the message is clear, “You can hold office, just not the highest one. You can succeed, just not too much.”² My hope is that by the time Canada is celebrating its 200th birthday this message has changed.

When we focus on the political climate elsewhere, women in other countries have fared far better than us. Sri Lanka set the stage for the rest of the world by electing its first female Prime Minister in 1960.³ Fifty-seven years ago a woman was leading a country. To many hopeful women, it would seem that we were making progress. As groundbreaking as Sirimavo Bandaranaike’s election was, another woman would not follow suit in 1979 when Margaret Thatcher became the Prime Minister of the United Kingdom. It took 19 years for another country to catch on, so while women were making progress, it was slow.

Currently only 33 women have been elected to represent their country in the highest office. Notably missing from the list is any North American country. The question remaining is why? What are we teaching young educated women? We are likely teaching women exactly what Marie Henein suggests, set big goals, become educated, and become successful. Just do not become too successful though because that is not what women do.

I truly hope that within the next 10 years this message has changed. It is time we change our attitudes about women in leadership. Instead of criticizing a woman’s “nasty” demeanour, it is time we celebrate her worth, ethic, and drive. Women are brilliant, capable, and deserving of the same successes as men. So by 2027 hopefully we will have one running our country as a result of her election, not as a result of merely filling in temporarily. Until then we will wait, not too patiently, for our turn.

 

 

¹ Marie Henein, “Thank you, Hillary. Now women know retreat is not an option,” The Globe and Mail (10 November 2016), online: <www.theglobeandmail.com/opinion/thank-you-hillary-women-now-know-retreat-is-not-an-option/article32803341/>.

² Ibid.

³ Christine Zhang & Andrea Roberson, “When the rest of the world elected women leaders,” The LA Times (14 November 2016), online: <www.latimes.com/projects/la-fg-women-world-leaders/#decade60>.

To Kill a Mockingbird: When Public Opinion Hurts the Justice Process

 

“Prejudice, a dirty word, and faith, a clean one, have something in common: they both begin where reason ends.”[1]

 

Today’s post explores a fundamental principle of Canada’s criminal justice system: every person on trial must be presumed innocent until proven guilty beyond a reasonable doubt. This determination must be “logically connected to the evidence” and not based on “sympathy or prejudice.”[2] For this reason, the defendant in a criminal trial is afforded additional rights to protect her innocence—unless and until the Crown prosecutor convinces a judge or jury beyond a reasonable doubt that enough evidence justifies a guilty verdict.

This is contrasted with the civil justice system. In civil court both parties’ rights are considered equally and the result is weighed on a balance of probabilities. In the criminal system the scales of justice are adjusted to reflect the state’s relative power to impose criminal sanction and the individual’s risk of loss of liberty and the stigma associated with a criminal conviction. The bottom line is that our society values the individual’s freedom so highly that it is better to let a guilty person free than to incarcerate an innocent person.

In Harper Lee’s book To Kill a Mockingbird, lawyer Atticus Finch defends the wrongfully accused Tom Robinson.[3] Mr. Robinson’s guilt is predetermined by the townsfolk and Mr. Finch faces an uphill battle to persuade the jury of his innocence. Before trial, Mr. Robinson’s reputation is already muddied.

In high profile criminal cases, the court of public opinion can injure the defendant’s reputation before guilt is decided. Recently in Alberta, Travis Vader was found guilty of manslaughter.[4] The judge found that the evidence did not support a first-degree murder conviction but it did meet the lower threshold of a manslaughter conviction. In Ontario, Jian Ghomeshi was found not guilty of sexual assault.[5] The evidence against the accused was not reliable enough to support a conviction.

Even before their days in court, both accused were unofficially tried in the court of public opinion and, like wildfire, guilty verdicts spread across social media. When someone is tried for a crime and found not guilty, ideally her life should return to normal, having been acquitted of a crime. This is usually true. Although our courts are almost always open to the public, most trials come and go without much public attention.

However, when a highly profiled case is before the courts, the accused is tried by thousands of opinions—most of which are not framed in an understanding of criminal law. Trial-by-social-media multiplies the impact on the reputation of the person facing trial. Publicizing the accused’s name and face changes her life forever. An accused person who is acquitted will never be truly innocent in the public’s eye when there is a highly publicized case, and a convicted accused in such cases carries the social burden heavier than does a non-publicized accused.

The lesson from To Kill a Mockingbird is in Atticus Finch’s influence on his children and, therefore, on the reader. Logic and equality is better than prejudice and bias. Even those accused of the worst crimes deserve “to get a square deal [in the] courtroom.”[6]

 

[1] Harper Lee, Go Set a Watchman (US: HarperCollins, 2015).

[2] R v Lifchus, [1997] 3 SCR 320, 150 DLR (4th) 733, at para 36.

[3] Harper Lee, To Kill a Mockingbird (Philadelphia: Lippincott, 1960) [Mockingbird].

[4] R v Vader, 2016 ABQB 625, 2016 CarswellAlta 2163.

[5] R v Ghomeshi, 2016 ONCJ 155, 2016 CarswellOnt 4246.

[6] Mockingbird, supra note 3.

You Can’t Handle The Truth!

As law students, many of us have that one legal television show or movie that inspired us to become a future lawyer. For the criminal law enthusiasts, maybe it was an episode of Law and Order that stood out. You would witness the New York City Police chase suspected criminals through dramatic and sometimes horrific investigations, then watch them hand over their work to Manhattan District Attorneys to duke it out in court.

For the future corporate lawyers, maybe it was Harvey Specter’s impeccable looks, stylish office, and fantastic style that makes the corporate lifestyle so attractive. I know I have personally watched my fair share of Suits. For others, maybe it was Elle Woods and her quirky route to becoming a Harvard Law graduate, all while mastering the “bend and snap,” that convinced you this degree was something you should and could pursue.

There is a plethora of legal comedies, dramas, and cinematic portrayals, one that has always stood out to me is A Few Good Men. I can still remember the first time I watched a young Tom Cruise losing his cool in court, trying to force Jack Nicholson to admit that he in fact ordered the “Code Red” that killed a Marine Private. Watching the heated exchange followed by Nicholson’s famous line “you can’t handle the truth,” was so exciting and intense all at the same time. Watching this, I knew that I wanted a career filled with that type of intensity and adrenaline rush.

A Few Good Men may have been the movie that inspired me to become a lawyer, but my career will be strikingly different than that of the young Tom Cruise’s character. In the film, Cruise plays Lieutenant Daniel Kaffee, a United States Navy lawyer tasked with defending two US Marines accused of murdering their fellow Private. In the film, Kaffee’s clients maintain they were just following orders when they violently disciplined the deceased. The entire investigation is run through military law practices, and ends in military court.

In Canada, the military have their own court system separate and unique from the regular criminal justice system. So what would military court be like for Daniel Kaffee here in Canada?

Similar to the United States, Canada has a parallel and separate military court system. Military justice is administered through the Code of Service Discipline, which is found in Part III of the National Defence Act.¹ The Code allows the military to enforce disciplinary standards on members of the Canadian Armed Forces (CAF) to maintain cohesion within military units.² The Supreme Court of Canada recognizes the need for the parallel military system to enforce disciplinary standards that are higher than what is expected of civilians.³

Similar to the procedure in A Few Good Men, Canada has a tribunal system for military justice. The military system acknowledges that CAF members, who are subject to military discipline under the Code, must be afforded fair, just, and transparent justice.⁴ To ensure fairness, military tribunals have two tiers. Summary trials deal with minor offences related to military discipline and unit effectiveness.⁵ These are dealt with quickly so the member can immediately return to duty.⁶

For more serious offences, courts martial are administered. Courts martial are similar to civil and criminal courts but they have an independent military judge overseeing the formal process.⁷ Canada has two forms of court martial, General and Standing. A General Court Martial is similar to a criminal jury trial. This process includes a military judge and five randomly selected CAF members.⁸ The judge acts as the trier of law, deciding the formal sentence, and the CAF members are the triers of fact determining a verdict.⁹ This is the type of formal process depicted in A Few Good Men. In contrast, a Standing Court Martial is similar to a judge-alone criminal trial where the military judge wears both hats.¹⁰

The military court system is imperative to the CAF’s function. The specialized system allows the military to maintain discipline and integrity needed to carry out the dangerous operations for which they are responsible. Although their formal court processes are similar to the criminal court system, it is necessary that people trained in military operations decide punishment. Civilians cannot accurately judge the discipline and enforcement needed to carry out certain orders and operations.

 

 

 

¹ National Defence Act, RSC 1985, c N-5, Part III, ss 66-159.

² Canada, National Defence and the Canadian Armed Forces, Canada’s Military Justice System, (Ottawa: National Defence Headquarters, 2014), online:

<www.forces.gc.ca/en/news/article.page?doc=canada-s-military-justice-system/hnea75sh>.

³ Ibid.

⁴ Ibid.

⁵ Ibid.

⁶ Ibid.

⁷ Ibid.

⁸ Ibid.

⁹ Canada, National Defence and the Canadian Armed Forces, Canada’s Court Martial System, (Ottawa: National Defence Headquarters, 2016), online: <www.forces.gc.ca/en/about-reports-pubs-military-law/court-martial-system.page>.

¹⁰ Ibid.

A Young Warrior Becomes a Wise Leader

In support of Canada’s commitment to Reconciling its colonial history with Indigenous communities, this week we focus on Indigenous leaders during Confederation. Many Indigenous communities were displaced and disadvantaged as a result of colonialism and Confederation, and their stories are important to the development of Canada. We wrote about one well-known leader, Louis Riel, earlier this semester.

Today we biograph Red Crow, a chief of the Blood (or Kainai) Tribe who was a signatory to Treaty 7 in 1877.[1] But signing Treaty 7 should not be considered his greatest achievement; his commitment was not to Confederation or the government but to his tribe. Treaty 7 seemed to present a promising future for Red Crow’s people.

[2]

Red Crow had several descriptive monikers, including Captured the Gun Inside, Lately Gone, and Sitting White Buffalo. He earned his Blood Tribe adult name, Mékaisto, as a warrior against other Indigenous bands and tribes.[3] He was born around 1830 south of present-day Lethbridge, Alberta, and later died on August 28, 1900, in the same region.[4] Red Crow’s band chose him as chief after his uncle and father died of smallpox in 1869. As a strong and respected leader in his community he eventually became the leading chief of several bands, representing the Blood Tribe at the signing of Treaty 7.

Red Crow saw his fair share of violence during his life. His reputation as a warrior began in his youth, and he participated in more than 30 wars and raids against other Indigenous groups and against American settlers. Historian Hugh Dempsey writes that, as an old man, Red Crow asserted that he had never been wounded in battle by a bullet, arrow, axe, spear, or knife.[5]

Unfortunately, alcohol played a factor in the violence Red Crow experienced. Though his tribe traded with American whisky traders at first, the addictive and destructive effects of alcohol ultimately changed his tune. Red Crow worked alongside the North-West Mounted Police to try to end the otherwise convenient trade.[6] Members of his community struggled with alcohol abuse and traded buffalo robes at a fraction of their value. Red Crow killed his own brother “during an alcohol-fuelled argument,” as well as two other Indigenous men who attacked him when they were intoxicated.[7] Even one of his wives was killed as a bystander when an altercation arose between two intoxicated individuals.[8]

According to Dempsey, in his report for Indigenous and Northern Affairs Canada, it is likely that Red Crow did not foresee the negative impacts that signing treaties would have on Indigenous communities.[9] It appears that his decision, and that of other Indigenous leaders, was clouded by the immediate benefits that the new government provided and promised, but he failed to foresee the future of Indigenous struggles as a result of the reserve-land system.

As European communities continued to settle in Alberta, Red Crow realized that his community’s nomadic lifestyle would be a challenge under Confederation. He became a successful farmer and helped support his followers on newly endowed reserve land.[10] As a respected warrior, local politician, and magistrate, Red Crow resolved disputes between the Blood, other tribes, and government agents. His interaction with government agents and, especially, his friendship with Mounted Police Commissioner James Farquharson Macleod spurred his acceptance of Treaty 7.

Red Crow realized that negotiation and treaties were necessary to create a peaceful future with other tribes and with the new Confederation government. However, his acceptance should not be mistaken for subservience or dependence on the government. Red Crow believed that as his community expanded their livelihoods through farming, ranching, and education, they would maintain their independence and pride.[11] He respected modern education and Christianity, but believed in his traditional customs and religion.[12] Unfortunately, living conditions for many rural reserve communities after Red Crow’s death would not have met his expectations.

Red Crow grew from a young, reckless warrior into a peaceful, patient negotiator, continuously demanding better living conditions for his band. His optimism and vision for future generations should serve as an inspiration in 2017 as we recognize #Canada150 and continue to work on #Reconciliation150.

 

[1] “Red Crow,” Native Leaders of Canada, New Federation House, online: <www.newfederation.org/Native_Leaders/Bios/Red_Crow.htm> [“Red Crow”].

[2] Municipal Plans and Bylaws, Oldman River Regional Services Commission, online: <www.orrsc.com/members-page/>.[3] Group Photograph of Nitai’kihtsipimi, M’kaisto, and North Axe, Blackfoot Digital Library, online: <https://www.blackfootdigitallibrary.com/publication/group-photograph-nitaikihtsipimi-mekaisto-and-north-axe>; Hugh A Dempsey, “Mékaisto,” 12 Dictionary of Canadian Biography (1990), University of Toronto/Université Laval, online: biographi.ca <www.biographi.ca/en/bio/mekaisto_12E.html>.

[4] Dempsey, ibid.

[5] Ibid.

[6] “Red Crow,” supra note 1.

[7] Historica Canada, “Red Crow,” Indigenous Peoples Collection, online: thecanadianencyclopedia.ca <www.thecanadianencyclopedia.ca/en/article/red-crow>.

[8] Dempsey, supra note 3.

[9] Canada, Indigenous and Northern Affairs Canada, Treaties and Historical Research Centre, “Treaty Research Report – Treaty Seven (1877),” by Hugh A Dempsey (1987), online: INAC <https://www.aadnc-aandc.gc.ca/eng/1100100028789/1100100028791> [INAC].   

[10] Dempsey, supra note 3.

[11] Ibid; Historica Canada, supra note 7.

[12] “Red Crow,” supra note 1.

Related articles

First Nations, Alberta seek compromise on water rights

University of Alberta Faculty of Law Blog: Happy Louis Riel Day!

The decades-long effort to allow indigenous communities to police themselves

Is Representation a Right?

It is something we grow up thinking we know: everyone has a right to a lawyer. But, especially in Canada, that right is not absolute.  Everyone has the right to contact a lawyer, but not usually the right to have representation.

We always hear about right to representation in American television dramas. This comes from the American Sixth Amendment, which grants “Assistance of counsel for...defence” in criminal cases.¹ To ensure that this right is extended to people of low socioeconomic status, the government staffs Public Defender offices with lawyers who take on any client who cannot afford to pay for representation.²

Unfortunately, like many government programs, the Public Defender offices find themselves overburdened. Lack of funding has led to staffing cuts, while caseloads continue to rise. Lawyers are frustrated, finding it increasingly difficult to provide their clients with the level of assistance they both deserve and have a right to. This contributes to the high incarceration rates in America, especially among marginalized minority communities.³

Here in Canada we have only a specific right to counsel in three instances. The most common of these comes from section 10 of the Charter of Rights and Freedoms. The Charter guarantees that, upon arrest, the detainee will have an opportunity to contact a lawyer.⁴ Police have a responsibility to assist in making that contact.⁵ However, police only need to facilitate this opportunity once. Once counsel has been meaningfully contacted police can begin interrogation and the accused has no right to recontact counsel unless there is a change in their charges.⁶

This is not to say that we have no resources for people who are in need of representation. Part of the right to counsel is the right to be advised about the existence of Legal Aid, and in most jurisdictions provided with a toll free number that can be used to contact them.⁷ In Alberta, our Legal Aid service provides representation, usually through lawyers in private practice taking Legal Aid files, for a subsidized fee.⁸ They help people who are charged with any offenses serious enough to have a likelihood of imprisonment, as well as some civil and family matters.⁹

In some jurisdictions, additional services exist to help people accused of less serious crimes and involved in minor civil disputes. Here in Edmonton, Student Legal Services of Edmonton helps people of low socioeconomic status and University of Alberta undergraduate students. This student run organization cannot give advice (being made up of students rather than lawyers), but can help people find their way through the justice system. Come back tomorrow for our interview with Neil Thompson, the Executive Coordinator of the organization, for more information about this program.

The second category of right to counsel is in youth criminal matters. This is the category which most closely resembles the American right to counsel. Section 25 of the Youth Criminal Justice Act describes a right to counsel that specifies that all youth who cannot retain counsel are eligible for Legal Aid, or the appointment of counsel in lieu of such a program.¹⁰

The third and least common type of right to counsel is a Rowbotham application. In rare cases, the accused might slip through the cracks. Their case is too complex to be handled without a lawyer, but they have still been rejected by Legal Aid. In these rare cases, the Judge can appoint a lawyer at public expense to ensure that the accused receives a fair trial.¹¹

Competent legal representation is important to a fair and justice system. It is an unfortunate reality that many of those who need representation the most are unable to obtain it on their own. Our systems attempt to bridge that gap, but could use reforms and more funding. However, they are helping people and providing valuable service to those in need. Hopefully these programs can expand in the future.

 

¹US Const amend VI.

²Oliver Laughland, “The Human Toll of America’s Public Defender Crisis”, The Guardian (7 September 2016), online: <https://www.theguardian.com/us-news/2016/sep/07/public-defender-us-criminal-justice-system>.

³Ibid.

⁴Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 10(b) [Charter].

⁵R v Manninen, [1987] 1 SCR 1233, 41 DLR (4th) 301.

⁶R v Sinclair, 2010 SCC 35, [2010] 2 SCR 310.

⁷R v Brydges, [1990] 1 SCR 190, [1990] SCJ No 8.

⁸Legal Aid Alberta, Legal Aid Alberta Rules, p 1, online: <http://www.legalaid.ab.ca/information-resources/Documents/Rules%20and%20Policies/LAA%20Rules%20Dec%207%202015.pdf>

⁹Ibid, p 4-6.

¹⁰Youth Criminal Justice Act, SC 2002, c 1, s 25(4).

¹¹Legal Aid Alberta, Rowbotham Application Information, online: <http://www.legalaid.ab.ca/information-resources/Documents/Court%20Ordered%20Counsel/Rowbotham%20Application%20Information.pdf>.

Law School: How Hard can it be, Anyway?

Law schools are notoriously difficult to get into and the challenge increases over time as applications increase. Today’s post discusses the change in demographics in law schools since 1867. Only two Canadian law schools existed prior to Confederation; both in Quebec.

Women in Law

At, and shortly after, 1867 women could not participate in the legal system in what was then Upper Canada. Men exclusively ruled the law schools and the legal system until Clara Brett Martin came onto the scene. She petitioned the Law Society of Upper Canada to become the first female articling student but she was refused.¹

However, like other influential women of her time, Martin was persistent. She refused to take no for an answer and introduced a provincial bill to allow women to attend law school and practice law.

In 1893, Martin’s conviction changed the legal profession forever.Her bill was passed, allowing women to be admitted to the law society as solicitors.² Martin was admitted as a law student in the same year and helped pass legislation to allow women to become barristers. In 1897, she became the first female lawyer in the British Empire.

Martin opened the door for women to excel in law, which is reflected in Canadian law school demographics today. Since 2000 at the U of A, about half of all law students in the faculty are women.³

Aboriginal and Indigenous Lawyers

In 1954, William Wuttunee was the first Aboriginal person to graduate from law school in western Canada.⁴ A Cree man, Wuttunee worked tirelessly to develop Aboriginal law in Saskatchewan and later moved to the national scene.

On the west coast of Canada in BC, Aboriginal peoples were “pretty much restricted from becoming lawyers” until the 1950s.⁵ It was Alfred Scow who broke down that barrier, becoming both the first Indigenous law student and member of the bar in BC.⁶

Today, many law schools in Canada including the U of A have a separate application categories for Aboriginal law applicants. The schools recognize the persisting underrepresentation of Indigenous lawyers, and are working to correct the disparity.

Getting In

Though Canadian law schools have admitted more women and Aboriginal students since 1867, admission remains difficult. While some schools like the University of Calgary have moved to a more wholistic approach to admission, high grades and LSAT scores remain important.

The average U of A law student admitted in 2016 had a GPA of 3.8 out of 4.0 (based on the last 2 years of post-secondary courses) and an LSAT score of 161 out of 180.⁷ The LSAT did not exist in 1867.⁸

In addition to the demographic diversity, the applicant pool continues to grow. In 1848, 23 men petitioned McGill University to create a law school.⁹ In the last few years, , McGill rejected over 80% of applicants and U of A rejected about 85%.¹⁰

¹Constance Backhouse, Dictionary of Canadian Biography, (University of Torotono/Universite Laval, 2005) sub verbo “Martin, Clara Brett”, online: <www.biographi.ca/en/bio.php?id_nbr=7840>.

²John D. Blackwell, The Canadian Encylopedia, (2008) sub verbo “Clara Brett Martin”, online: <www.thecanadianencyclopedia.ca/en/article/clara-brett-martin/>.

³See the University of Alberta Faculty of Law JD Program FAQs, <www.ualberta.ca/law/admissions/juris-doctor/faq#WomenEnrolled>.

⁴Doug Cuthand, “Remembering William Wuttunee: Cree lawyer was a trailblazer”, CBC News (2 November, 2015), online: <www.cbc.ca/news/indigenous/remembering-bill-wuttunee-1.3300662>.

⁵Yolande Cole, “B.C. judge Alfred Scow remembered as “aboriginal pioneer”, The Georgia Straight (8 March 2013), online: <www.straight.com/news/360396/bc-judge-alfred-scow-remembered-aboriginal-pioneer>.

⁶Allison Griner, “Aboriginal lawyers stride in footsteps of legal pioneer” (25 March 2013), online: <thethunderbird.ca/2013/03/25/aboriginal-lawyers-stride-in-footsteps-of-legal-pioneer/>.

⁷See the University of Alberta Faculty of Law JD Program applicant profile tab, <www.ualberta.ca/law/admissions/juris-doctor/applicant-profile>.

⁸William P. LaPiana, “A History of the Law School Admission Council and the LSAT”, (Keynote Address delivered at the 1998 LSAC Annual Meeting, 28 May 1998) [unpublished], online: www.lsac.org/docs/default-source/publications-(lsac-resources)/history-lsac-lsat.pdf.

⁹See McGill Faculty of Law’s “Our history” webpage, http://www.mcgill.ca/law/about/history.

¹⁰See the University of Alberta Faculty of Law JD Program FAQs, <www.ualberta.ca/law/admissions/juris-doctor/faq#AverageScores>.

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>.

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.

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.

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.

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!

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.

As we move on from the election, we must resist complacency

Dear Sir or Madam,

While we will be moving away from discussing the American election next week, in our final election themed post, we want to urge you to continue the discussion. Whether you have a Republic with a president or Constitutional Monarchy with a prime minister, a functioning democracy relies on an engaged and informed public.

Section 2(a) of Canada’s Charter of Rights and Freedoms and the First Amendment of the American Constitution protects an individual’s right to express their beliefs, including political views that question governmental action. The freedom of expression has another essential function in the political context, to ensure that information can be freely disseminated to the public. An informed public can identify the societal issues that matter to them and hold the government accountable for change when election day comes.

America’s president-elect has openly threatened the press’ freedom to report on political discourse. During the campaign he had tirades against newspapers The New York Times and The Washington Post, saying that he would “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and… win money instead of having no chance of winning because they're totally protected."[1] The fact that the president-elect is under the impression that he has the power to singlehandedly amend libel laws is concerning in itself, but there is a much more sinister repercussion here. Donald Trump wants to suppress negative opinions of him and bring responsible news sources into disrepute.

But the president-elect is not the only threat to responsible journalism. We have to be cognisant of the fact that we live in an unprecedented age of information. A majority of U.S. adults – 62% – get news on social media, and 18% do so often, according to a new survey by Pew Research Center.[2] The problem with getting our news from Facebook is two-fold. When we get our news from Facebook, biased news sources and hyperpartisan blogs that rely on unsubstantiated claims and false data gain a larger platform. Ever more dangerously, we create own echo chambers when we “unfollow” that old colleague, schoolmate or family member that posts articles that champion beliefs that are different to our own.

So how do we stay informed, engaged, and willing to engage with other perspectives? Support and read responsible journalism. Buy subscriptions to media outlets that insist on fact-checking and don’t rely solely on social media for your news.

Staying engaged also means putting pressure on our leaders. Americans need to hold Donald Trump accountable for his policies and in Canada and abroad, we have to do the same for our leaders’ foreign policy decisions.

Compare the post election statements from Prime Minister Justin Trudeau and German Chancellor Angela Merkel:

Justin Trudeau:

“On behalf of the Government of Canada, I would like to congratulate Donald J. Trump on his election as the next President of the United States.

“Canada has no closer friend, partner, and ally than the United States. We look forward to working very closely with President-elect Trump, his administration, and with the United States Congress in the years ahead, including on issues such as trade, investment, and international peace and security.

“The relationship between our two countries serves as a model for the world.  Our shared values, deep cultural ties, and strong integrated economies will continue to provide the basis for advancing our strong and prosperous partnership.”[3]

Angela Merkel:

“Germany and America are bound by common values: democracy, freedom, as well as respect for the rule of law and the dignity of each and every person regardless of their origin, skin color, creed, gender, sexual orientation or political views. It is based on these values that I wish to offer close cooperation, both with me personally and between our countries’ governments.” [4]

You may be content with Justin Trudeau’s decision to avoid commenting on Trump’s divisive campaign, or perhaps you prefer Angela Merkel’s more conditional congratulations. Either way, you should know how your country’s leadership is responding.

So as exhausted as you may be from hearing about the election, please, don’t get complacent. Support journalism that publishes facts, push your government to be responsive, and don’t close your eyes to different perspectives, as hard as it may be.

Your humble and obedient servants,

The Dominion

[1] Hadas Gold, “Donald Trump: We're going to 'open up' libel laws”, Politico. (26 February 2016), online: <http://www.politico.com/blogs/on-media/2016/02/donald-trump-libel-laws-219866>

[2] Jeffrey Gottifried and Elisa Shearer, “News Use Across Social Media Platforms 2016”, PewResearchCentre Media and News. (26 May 2016), online: <http://www.journalism.org/2016/05/26/news-use-across-social-media-platforms-2016/>

[3] Kathleen Harris, “Justin Trudeau congratulates president-elect Trump, vows to 'move forward in a positive way’”, CBC News. (09 November 2016), online: <http://www.cbc.ca/news/politics/trudeau-trump-canada-us-relations-1.3843142>

[4] Anthony Faiola, “Angela Merkel congratulates Donald Trump — kind of”, The Washington Post (09 November 2016), online: <https://www.washingtonpost.com/news/worldviews/wp/2016/11/09/angela-merkel-congratulates-donald-trump-kind-of/>

 

Be Successful, Just Not Too Successful: A Perspective on Clinton's Loss

Dear Sir or Madam:

Last week’s US presidential election is still a controversial topic. People around the world are still forming opinions, questions, and trying to fathom how such a controversial candidate won the White House. One facet of the debate that remains is wondering just how did Hillary Clinton lose? It seems that many people thought she had the race in the bag. The polls suggested she would win, rational thought would seem to suggest she would win, experts suggested she would win;¹ but come Election Day everything that suggested she would win was incorrect. Surprisingly, Clinton did not just lose; Trump won in an unpredictable landslide victory. As the election results continued to finalize, the hope of watching the first female president win the highest seat in the land vanished.

Where do these results leave us? As a woman writing this post, it leaves me feeling somewhat demoralized and frustrated. People seek out university and college educations with the ideal that they can be anything they desire; provided that they put in the required work to achieve these goals. Hard work pays off, a statement seemingly without gender implications, something many of us are taught from a young age. We enter into these institutions with hopes of becoming a doctor, a lawyer, a teacher, an artist, or maybe even a president one day. If this recent election has taught me anything however, the sentiment that you can be anything may be true; but women will struggle much harder to achieve these goals than men.

Political analysts trying to make sense of Trump’s win have developed many theories as to why Clinton lost. Some argue that Americans were so frustrated by traditional political leadership that they voted for the candidate resembling nothing of a career politician.²  Others point to the FBI’s investigation into Clinton driving away some educated voters.³ While the loss is likely explained by a multitude of factors, one recurring speculation is she lost, at least in part, because she is a woman.⁴

Clinton’s campaign focussed on shattering the most salient glass ceiling in the world, ultimately proving unsuccessful. The Democratic nominee was clearly the more qualified candidate with a long political career, successful law practice, and experience as First Lady of the United States. Trump, the Republican candidate, has no political background, and his resume lacks credentials typically fit for the White House. D. Watkins, an Editor-at-Large for Salon and a professor at the University of Baltimore, suggests, “Donald Trump may be the most unqualified person to ever run for office in America.”⁵ Now he may be the most unqualified person to ever win. If hard work truly does pay off, Clinton should have won. She worked her whole life gaining political and practical experience to make her fit to be president. Logically, the person fit for the job and with the most relevant experience should win. This election tells us something different.

Marie Henein, a successful legal partner with Henein Hutchison, suggests that while we may live in what we think is a progressive society, society still struggles with women in positions of power.⁶ When women attempt to reach these positions of power, society and the media react with a negative lens. Instead of highlighting Hillary Clinton’s remarkable career accomplishments, media constantly shifted focus to her “nasty” demeanour and her wardrobe. While considering a potential president of the United States, are we seriously worrying about where her pantsuits are made? The election results are disappointing and continue to deliver a disheartening message to women: the glass ceiling is not going to be broken any time soon.

America demanded change and had the chance to inflict it by electing the first female president. Instead, they chose wild media antics, racism, xenophobia and bigotry. What this leaves women with is the sad reality that America is more sexist than racist; but unfortunately it is both.⁷ As women, we will continue to struggle moving forward to shatter that resilient glass ceiling. Hopefully one day in the near future we will, so that future generations can grow up truly believing women can be anything they desire; even president of the United States. Until then, as Henein so eloquently states, “You can hold office, just not the highest one. You can succeed, just not too much. I’m going to say it; she lost because she is a woman. If she was a man, she would be president-elect today. Plain and simple.”⁸

Still hoping one day the ceiling will shatter,

The Dominion

 

 

¹ “Presidential Poll Tracker” (8 November 2016), CBC News, online: <www.cbc.ca/news2/interactives/uspolltracker/>.

² Chris Cillizza, "One of Hillary Clinton’s top aides nailed exactly why she lost”, The Washington Post. (14 November 2016), online: <www.washingtonpost.com/news/the-fix/wp/2016/11/14/one-of-hillary-clintons-top-aides-nailed-exactly-why-she-lost/>.

³ “Why did Hillary Clinton lose? Her top opinion researchers answers” (14 November 2016), CBS News, online: <www.cbsnews.com/news/why-did-hillary-clinton-lose-her-top-opinion-researcher-answers/>.

⁴ Marie Henein, “Thank you, Hillary. Now women know retreat is not an option”, The Globe and Mail. (10 November 2016), online: <www.theglobeandmail.com/opinion/thank-you-hillary-women-now-know-retreat-is-not-an-option/article32803341/>. 

⁵ D Watkins, “Is America more racist, or more sexist? Admittedly, it’s a tough call” Salon. (30 October 2016), online: <www.salon.com/2016/10/30/is-america-more-racist-or-more-sexist-admittedly-its-a-tough-call/>.

⁶ Henein, supra note 4.

⁷ Watkins, supra note 5.

⁸ Henein, supra note 4.

In Defence of Third Party Voters

Dear Sir or Madam,

Today, we feel the need to begin with a disclaimer.  This post is mostly based on opinion, and the position taken is not necessarily shared by all members of the project.

While none of us were pulling for Donald Trump in the recent US Presidential election, not all of us were in favour of Hillary Clinton either.  Our post today is in defence of third party candidates and voters.

When Trump's win was announced last week, social media erupted with absolute rage directed towards those who voted for him, and even some of those who didn't.  Even mainstream media sources hopped on the bandwagon of shaming third party voters¹.

There are a few problems with this position.  The first is one of mathematics.  The CNN piece cited above is pure speculation.  The Wall Street Journal's Byron Tau wrote a piece¹ in which statistics were actually considered and the overall conclusion was that Clinton would have needed all of the votes that went to the Green Party’s Jill Stein in order to win. This is admittedly within the realm of possibility.  Further, she would have needed roughly half of the votes that went to Gary Johnson of the Libertarian Party, which is extremely unlikely.  

A CBS exit poll³ shows that 55% of Libertarian voters would not have voted in a race limited to the two frontrunner candidates.  Of course, it is important to recognize the extremely limited value of polls, especially in an election with such a surprising result.  Having said that, voter registration might be a better indicator.  Brandon Ellyson, a Libertarian Party staffer, published an interesting statistic.  Apparently, of the Libertarian voters who had previously registered with one of the two big parties, Republicans outnumbered Democrats by a 3:1 ratio⁴.  This makes Byron Tau’s 50% target seem even more unlikely.

Putting aside the statistics, there is another reason why the anger directed towards third party voters is wrong;it shows a fundamental disrespect for democracy.  Third party voters tend to vote ethically instead of strategically.  The fact that over half of Libertarian voters said that they would refuse to vote for a Democrat or a Republican is evidence of this.  What critics fail to realize is that many Green and Libertarian voters do not see either of the two major parties as an acceptable choice, and therefore refuse to vote for what they see as a “lesser evil”.  These voters should be commended for their willingness to stand by their positions, even in the face of an unwinnable scenario, and not vilified for refusing to compromise their integrity.

The United States has become overly invested in a false dichotomy, and their electoral system is designed to ensure that only two parties are able to meaningfully participate.  American politics has almost gotten to the point where it effectively mimics sports teams.  You wear red or blue and wave the appropriate coloured pennant, even though it's very likely that you disagree with at least some of the policies of your side.  We here at The Dominion do not have the answer, but we recognize that there needs to be greater access to diversity of political opinion and representation in the United States.

Your Humble and Obedient Servants,

The Dominion

 

¹ Eli Watkins, “How Gary Johnson and Jill Stein helped elect Donald Trump”, CNN (10 November 2016), online: <www.cnn.com/2016/11/10/politics/gary-johnson-jill-stein-spoiler/>.
² Byron Tau, “Did Third-Party Candidates Cost Hillary Clinton the Election?”, Wall Street Journal (14 November 2016), online: <blogs.wsj.com/washwire/2016/11/14/how-third-party-voters-influenced-election-2016/>.
³ Stanley Feldman and Melissa Herrman, “CBS News Exit Polls: How Donald Trump won the U.S. Presidency”, CBS News (9 November 2016), online: <www.cbsnews.com/news/cbs-news-exit-polls-how-donald-trump-won-the-us-presidency/>.
⁴ Brandon Ellyson, “We had 3:1 registered Republicans over Democrats onboard.” (9 November 2016), posted on Brandon Ellyson, online: Facebook <https://www.facebook.com/brandon.ellyson/posts/10211250087233922>.

 

 

Why the US Electoral College?

Dear Madam or Sir,

If you have travelled overseas with a Canadian accent, you might have been mistaken for an American. Yet, while travelling in the United States, you might have had to clarify that we don’t all have dogsleds. We may share some cultural characteristics with our neighbours to the south but our differences abound. For example, every four years, you probably notice that there are some major differences between our electoral process. This post will provide an overview of the electoral college.

Unless you have studied US politics or history, the concept of the Electoral College might be elusive. It’s particularly difficult to understand it in the context of a democracy. US voters do not directly elect their president, although they cast a vote in favour of their choice for President and Vice President, for a Senator, and for a House Representative.

Canada’s system is quite straight-forward. The voting public elects local representatives. These candidates are nominated by a party or are independent representatives, in a predetermined geographic area--a riding. The representative with the most votes per riding gets a seat in the House of Commons, representing the residents of that riding (constituents). The political party with the most seats in the House becomes the leading party and forms a government. This system, in place before Confederation, was modeled on the British parliamentary system and was enacted to continue so under the BNA Act.

The United States is much different. Every four years to the day, the US voting public indirectly votes for a president-and-vice-president combination. When the public votes for a candidate, it actually votes for that candidate’s electors, making up the “Electoral College”. This “popular vote” is somewhat misleading because the popular vote actually selects “electors” in each state, who are chosen by each candidate’s party. Even if one party wins by a slim margin in a state, all of that state’s electors will represent that party. In theory, the Electoral College could elect a candidate from a different party than their own affiliation, but this is rare because many will pledge in advance to vote for their party.[1]

The Electoral College usually represents the popular vote. So why the intermediary step? In 1787, the United States Constitutional Convention* decided upon this method of selecting a president.[2] It seemed prudent to select a president as a combination of the uninformed public’s vote and of the legislature. One specific aim of this method was to reconcile the disparity between the public’s views on suffrage for slaves.[3] Voters in the northern states were more open to suffrage than were their southern counterparts. Maybe this approach avoided social progress--tempered public will and maintained more traditional values or practices. On the other hand, maybe it soothed disparity between attitudes in the north and the south following the War of Independence.

Unfortunately, we don’t have time to adequately detail the many differences between Canada’s electoral system and the US’s. Click here to read Maclean’s magazine break it down further. In addition, check out this Globe and Mail article on how Canada’s prime ministers would have changed if we had an electoral college system. What are your thoughts on the electoral college? Comment below!

With sincerest regards,

The Dominion

 

*This was an actual physical convening of people to discuss the constitution, not a conventional practice that Canada uses with respect to its constitution.

 

[1] “Are there restrictions on who the Electors can vote for?”, US Electoral College, United States National Archives and Records Administration, online: <https://www.archives.gov/federal-register/electoral-college/electors.html#restrictions>.

[2] “A Century of Lawmaking for a New Nation: US Congressional Documents and Debates, 1774-1875”, American Memory, Library of Congress, online: <memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=60&itemLink=r?ammem/hlaw:@field%28DOCID+@lit%28fr00218%29%29%230020061&linkText=1>.

[3] Ibid.  

Prime Minister v President

Dear Sir or Madame,

Today is the first day of our week long look at the recent election in the United States. We are beginning with a look at how the American Republic differs from Canada’s Constitutional Monarchy. We will pay particular attention to one aspect that people are often confused by: what is the difference between the Prime Minister and the President, anyway?

The key difference between the two systems is where the executive powers lay. Executive powers are how laws are enacted after they are written. Whichever body or person possesses executive powers appoints the heads of government agencies, judges, and the group of advisers commonly known in both countries as the Cabinet. In Canada, these powers are all technically held by the Queen, and through her the Governor General.¹ In practice, they are exercised by the Prime Minister. In the United States, the same powers are given to the President.² The President signs all bills passed by Congress into law, and only a two thirds majority can overrule their veto.³ The Governor General must also give what is known as “royal assent” to legislation, and cannot be overruled by Parliament.⁴ However, in practice this power is never exercised. Both the Queen (and by extension the Governor General)⁵ and the President⁶ have control over the military.

On paper, the two systems have many similar characteristics. All legislation must pass through two houses. In the United States, Congress is the umbrella term used to refer to both both houses, the House of Representatives (with more members from more populous states), and the Senate (with equal representation per state).⁷ The Canadian equivalents are the elected House of Commons, and unelected Senate, collectively called Parliament.⁸ In both the American and Canadian systems, once the houses pass a bill into legislation, it moves to the executive for ratification before becoming law. But despite these similarities, Canada’s Constitutional conventions (which we talked about before) have a profound effect on the balance of power.

If the Queen or Governor General is our equivalent to the American President in executive terms, what is the Prime Minister’s role and why are they the leader of the country? The office of Prime Minister exists as a constitutional convention in both Canada and the UK. The leader of the party with the most elected seats in the House of Commons holds the Prime Minister’s office. They are ceremonially appointed by the Governor General, and the Governor General is required to “take the advice” of this first Minister in making appointments and giving royal assent to bills.⁹ In practice this “advice” is purely ceremonial and the Prime Minister has control of the process. This results in more concentrated power in the Prime Minister and Cabinet. The Prime Minister is head of both the legislative and executive branches of government, so has more direct control than the President.

This is only a very brief overview of the major differences and similarities in the legislative and executive branches between our two countries. There are many more differences that exist between our Constitutions. We would encourage our readers to go out and read both documents, and pay close attention to how both systems work. Neither one is perfect, so comparing and contrasting them can be a useful way to figure out what might be better.

 

Your Humble and Obedient Servants,

The Dominion

 

¹Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, ss 11, 14, and 96-98, reprinted in RSC 1985, Appendix II, No 5.

²United States Constitution 1787, Article 2, s 2(2).

³Ibid, Article 1, s 7(2).

⁴Supra, note 1, s 55.

⁵Ibid, s 15.

⁶Supra, note 2,  Article 2, s 2(1).

⁷Ibid, Article 1 s 1-3.

⁸Supra, note 1, ss 17, 22, and 37.

⁹Elise Hurtubise-Loranger, “Constitutional Conventions”, Topical Information for Parliamentarians (Library of Parliament, 11 Jul 2006), online: <www.lop.parl.gc.ca/content/lop/TeachersInstitute/ConstitutionalConventions.pdf>.

Trump will not overshadow you: Continuing to remember our Canadian military

Dear Sir or Madam,

Here at the Dominion, we understand that the results of Tuesday’s American presidential election have become a contentious topic around the world. People are left with opinions, questions, and utter bewilderment. As Canadians, many of us find ourselves more thankful than ever to live in such a free, tolerant, and welcoming society. The United States election, if anything, has shown us how truly blessed we are to live in this great nation. That is why we must honour and remember the brave men and women who risk their lives to protect our country from threats of violence and hatred. As such, we will address the US presidential election next week, but today and tomorrow we will not let it overshadow the remembrance we duly owe our Canadian military.

This week we continue to remember all the courageous men and women who have served our country. We honour those who came before us, fighting endlessly and powerfully so that we can live in a free society. Further, we admire the men and women who continue to serve and protect our country. While we honour the Canadian Forces’ fight both at home and overseas, today we focus on the government branch that primarily provides support to their retirees. Today, we discuss Veterans Affairs Canada (VAC) and the services they provide.

Veterans Affairs Canada is a department of the Government of Canada that provides services to veterans, former and current serving Canadian Armed Forces soldiers, and former and current RCMP officers.¹ The mission of VAC is:

 

“To provide exemplary, client-centred services and benefits that respond to the needs of veterans, our other clients and their families, in recognition of their services to Canada; and to keep the memory of their achievements and sacrifices alive for all Canadians.”²

 

Services the department provide include: financial support, rehabilitation services, services to aid veterans in their transition to civilian life, mental health support, and the hiring of veterans  within the Government of Canada.³ Under these service categories some of the notable programs provided include: veterans allowances, pension advocacy, health care, disability pensions, and commemoration.⁴

The department recognizes that numerous people generally understand a veteran to be someone who has served in the First World War, Second World War, or Korean War.⁵ The VAC’s definition includes these criteria, but also adds that “any former member of the Canadian Armed Forces who releases with an honourable discharge and who successfully underwent basic training” qualifies.⁶ The department recognizes that it is crucial all members of the Canadian Forces receive continued support after their discharge from the military.

In addition to support services, Veterans Affairs Canada is also responsible for the Canada Remembers program. The program is responsible for Remembrance Day services across the country, and aims to “keep alive” sacrifices of our great military.⁷ Formal services help recognize achievements of our military, as well as remind Canadians of the sacrifice these individuals have made for the rest of us. Canada Remembers is a way for the federal government to honour the service of thousands of brave men and women, and encourage all generations to remember where their freedom came from. As Veterans Affairs Canada so eloquently states, “although many of us cannot actually "remember", we owe it to those who have served to learn, to understand, and to appreciate the task they have undertaken.”⁸

 

Your humble and grateful servants,

The Dominion

 

 

¹ “Mandate, Mission, Vision, Values and Ethics”, Veterans Affairs Canada, online: <www.veterans.gc.ca/eng/about-us/mandate>. [Mandate]

² Ibid.

³ “Services”, Veterans Affairs Canada, online: <www.veterans.gc.ca/eng/services>.

⁴ Mandate, supra note 1.

⁵ Ibid.

⁶ Ibid.

⁷ “About Canada Remembers”, Veterans Affairs Canada, online <www.veterans.gc.ca/eng/remembrance/about-canada-remembers>.

⁸ Ibid.