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5 Years After TRC: Is Canada Making the Grade?

Tansi, 

December 2020 marked 5 years since the TRC final report was released with 94 Calls to Action for truth and reconciliation with Indigenous people.  To commemorate this juncture, Team ReconciliAction set out to evaluate progress on each of the Calls to Action in the 5 years since their release. 

It has been quite a year for our team.  In addition to our ongoing report card, we attended the Indigenous Bar Association annual conference, the ILSA speaker series, the Kawaskimhon Moot, the Barton trial, Indigenous language engagement sessions, various faculty talks, we won a Clawbie and we attended protests, marches and vigils.  And we shared all of it with you, our dear audience.  We appreciate all of the engagement we've had this year on the blog and on our social media accounts, and we want to thank everyone who joined the conversation on reconciliation this year.  

Today, we release our final report card, and the culmination of our work over the 2020/21 academic year.  To those who have followed the progress, you have probably figured out that the report card on 5 year progress is bleak.  The few bright spots in reconciliation progress have come at the organizational level, where institutions could quickly work to address the Calls specific to them.  There has been little to no progress on more systemic change that requires governmental action, and in many cases we have actually seen a backslide.  For example, Prime Minister Justin Trudeau has ceased making his emphatic statements that Canada's relationship with Indigenous people is the most important relationship, and here in Alberta we are looking into curriculum changes that exclude education on the legacy of residential schools.  

The takeaway from our report card is that Canada has much work to do, and likely needs to make significant increases to funding and efforts to correct some of these systemic issues in housing, healthcare, the justice system, child welfare and anti-racism.  So what comes next?  Will Canada stop fighting against Indigenous children?  Will Justice Minister David Lametti acknowledge the importance of Indigenous language speakers in this country and allow the bilingual requirement for the SCC to include languages other than colonial ones?  Will communities get clean drinking water?  Will provincial governments denounce racism in education and healthcare?  I mean, we hope so and each of us plans to continue the discussion beyond this blog.

We aren't saying goodbye yet, though.  Stay tuned next week as we get some final thoughts off our chest, and the week after for our individual reflections on the year.  

And now, for those of you who have not already scrolled ahead - The final grade:

Until Next Time,

ReconciliAction YEG

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Re: Call to Action #93 - Immigration and Citizenship

Tansi Nîtôtemtik,

93. We call upon the federal government, in collaboration with the national Aboriginal organizations, to revise the information kit for newcomers to Canada and its citizenship test to reflect a more inclusive history of the diverse Aboriginal peoples of Canada, including information about the Treaties and the history of residential schools.^[1]

This Call to Action for the federal government calls for the inclusion of more information about Canada's treaties with indigenous peoples and the history of residential schools in the Canadian citizenship test to create an understanding of our history within new citizens and combat racism and discrimination.

Many immigrants are not aware or educated on the complex history of Indigenous People and the challenges they have faced (and still face) when first arriving in Canada. There is a lack of understanding of the years of colonization, policies, residential school system, systemic discrimination, and dispossession that has created devastating effects on Indigenous communities. As a result, many newcomers learn negative and damaging stereotypes about Aboriginal people.^[2]

On December 10, 2019, on International Human Rights Day, the Environics Institute for Survey Research and the Canadian Race Relations Foundation released the Race Relations in Canada 2019 Survey. This study confirms the reality of racism in Canada and found that immigrants quickly picked up such negative stereotypes after immigrating to Canada.^[3] 

So, what do new immigrants learn about First Nations, Metis and Inuit? Upon reviewing the “Study Guide – Discover Canada – The Rights and Responsibilities of Citizenship”, we found the following. In the “Canada’s History” chapter, two small paragraphs show how woefully and sickeningly inadequate a history lesson on Aboriginal people in Canada is:

“The arrival of European traders, missionaries, soldiers and colonists changed the native way of life forever. Large numbers of Aboriginals died of European diseases to which they lacked immunity. However, Aboriginals and Europeans formed strong economic, religious and military bonds in the first 200 years of coexistence which laid the foundations of Canada.”^[4]

In the Chapter “Who we are”, there is a tiny mention of  treaties and one reference to Residential Schools that is almost casually mentioned: 

”Aboriginal and treaty rights are in the Canadian Constitution. Territorial rights were first guaranteed through the Royal Proclamation of 1763 by King George III and established the basis for negotiating treaties with the newcomers— treaties that were not always fully respected. From the 1800s until the 1980s, the federal government placed many Aboriginal children in residential schools to educate and assimilate them into mainstream Canadian culture. The schools were poorly funded and inflicted hardship on the students; some were physically abused. Aboriginal languages and cultural practices were mostly prohibited. In 2008, Ottawa formally apologized to the former students.”^[5]

It is hard to read such a gloss-over of the history and harms of the Residential School era that brought such suffering and intergenerational trauma to the original stewards of the land. Canada must do better in providing a deeper understanding to new immigrants if it truly wants to further reconciliation and help to fight negative stereotypes faced by Aboriginal people. Instead of simply indicating that treaties with Indigenous Canadians "were not always respected", let's talk about why these treaties were not respected and the issues created by not respecting them. That would be a step toward reconciliation and teaching new immigrants how they can be a part of the solution.

A promised overhaul of Canada's citizenship guide remained a work in progress back in May  2019. The government said it was revamping the 68-page Discover Canada document, last updated in 2012, to better reflect diversity and to include more "meaningful content" about the history and rights of Indigenous people and the residential school experience.^[6] But when is this finally going to be done? Almost 2 years have passed since this proposed “revamping”. This delay is unacceptable.

Canada gets an F on Call to Action #93. 

Until Next Time,

Team ReconciliAction

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[1] TRC Calls to Action

[2] The connection between immigrants and Aboriginal people in Canada's mosaic | Canadian Immigrant

[3] Project Details (environicsinstitute.org)

[4] Discover Canada - Canada’s History - Canada.ca

[5] Discover Canada - The Rights and Responsibilities of Citizenship - Study Guide,discover.pdf

[6] Revamped citizenship guide still a work in progress as election nears | CBC News 

Re: Mining Canadian Rocky Mountains and the Impacts – NO MORE COAL MINES

Tansi Nîtôtemtik,

Public outcry has been swift and loud from First Nations, Albertans and the rest of Canada at the UCP government’s decision to rescind the coal policy protections that have been in place for the last 45 years. Alberta’s vulnerable southeastern slopes in the heart of southern Alberta's water supply are at great risk should international coal firms be given the green light to start mountaintop removal mining of the area’s metallurgical coal. If allowed, this decision would allow open-pit coal mining on the eastern slopes of the Rocky Mountains. [1] These areas have been flagged for decades as needing protections against mining because of the potentially devastating effects on the waterways, wildlife and disruption of backcountry recreations as well as infringements on First Nations’ inherent rights.

 Apart from being invasive, mountaintop coal mining strips the soil, vegetation and rock from thousands of hectares of land that eventually see the dumping of the resulting waste into the valleys that reach the natural waterways, destroying and severely disrupting native wildlife. Research has identified these issues, which also include human health risks in addition to environmental risks. Open-pit coal mines are intensive water consumers and generate an incredible amount of toxic waste. The public outcry to these changes has been loud and united in its plea against rescinding the coal policy protections. [2]

Last week the Kainai-Blood Tribe added their voice to the outcry by announcing plans to launch a legal challenge against the Government of Alberta over its decision to unilaterally rescind the 1976 Coal Policy. [3] The Blood Tribe leadership, who had previously faced some backlash from its community members over the issue, had reached an agreement with mining giant Benga last November over its plans to mine in Grassy Mountain and Included in the agreement was a duty to consult with the tribe as mining goes ahead. However, it appears this mutual agreement with Benga over Grassy Mountain coal does not extend to other coal mining proposals now being considered by the Kenney government on the Eastern Slopes. Added to this the general members say they were not consulted at any point and intend to fight and keep up the pressure because each of these foreign owned mining companies has little to no regard for their inherent rights and connections to the land. [4] 

Surprisingly,  the UCP did a complete 180 and announced they would back down on coal mining and issuing any new leases in the Rockies amid powerful public protest against such action this past Monday. Although this development is considered a victory, it does not mean the fight against coal mining is over especially if the UCP was ready to remove the protection of land in place for over 44 years without consultation, or even a phone call. We suspect it is far from over given the history of this government[5]

Energy Minister Sonya Savage said at Monday’s press conference, "Albertans have spoken loud and clear and we have heard them,“.  What the Government of Alberta heard is a collective voice condemning their attempts to disregard our concerns for the environment over dirty money, in an industry that is fast becoming obsolete in favour of more efficient and less invasive energy sources. [6]  

Ok so Alberta has essentially said no new exploration leases on the so-called Category 2 lands (most environmentally sensitive areas), but companies with current exploration permits may continue their work. The reinstated policy effectively bans mines where exploration is taking place. This is a relief especially considering that there was little to no consultation with First Nations or ranchers in the area.[7] The local people don’t want the expansion of coal mining as much as the majority of Albertans and Canadians far and wide. “NO MORE COAL MINES.” This is a mantra that is not going anywhere anytime soon.

Until Next Time

Team ReconciliAction YEG

 

[1]Albertans for Coal Free Rockies, “Coal Mining Threat to the South Eastern Slopes of the Rockies” (3 Jul 2020) online: <ab4coalfreerockies.ca/learn-more/coal-mining-threat-to-the-south-eastern-slopes-of-the-rockies#:~:text=Coal%20Mining%20Threat%20to%20the%20South%20Eastern%20Slopes,door%20to%20intensive%20coal%20development%20in%20the%20region>.

[2] Ibid.

[3] Tom Kalinowski, “ Blood Tribe to launch legal challenge over Coal Policy” Medicine Hat News (2 Feb 2021) online:<medicinehatnews.com/news/southern-alberta-news/2021/02/02/blood-tribe-to-launch-legal-challenge-over-coal-policy/#:~:text=While%20opposed%20to%20coal%20mining%20in%20what%20were,in%20Category%204%20lands%20under%20the%20old%20definitions.> 

[4] Ibid

[5] Ibid

[6] Bob Weber, “Alberta backs down on coal mining in Rocky Mountains after huge public outcry” Financial Post (8 Feb 2021) online: <financialpost.com/commodities/mining/alberta-backs-down-on-coal-mining-in-rocky-mountains-after-huge-public-outcry>. Alberta backs down on coal mining in Rocky Mountains after huge public outcry | Financial Post 

[7] Ibid

TRC Call to Action #60: Aboriginal Beliefs and Spirituality and the Whiteman’s Gospel

We call upon leaders of the church parties to the Settlement Agreement and all other faiths, in collaboration with Indigenous spiritual leaders, Survivors, schools of theology, seminaries, and other religious training centres, to develop and teach curriculum for all student clergy, and all clergy and staff who work in Aboriginal communities, on the need to respect Indigenous spirituality in its own right, the history and legacy of residential schools and the roles of the church parties in that system, the history and legacy of religious conflict in Aboriginal families and communities, and the responsibility that churches have to mitigate such conflicts and prevent spiritual violence.

In plain simple terms Call to Action #60 is a call to train individuals in religious cultural safety, so that people of different faiths may understand each other better.^[1] This Call to Action aims to ensure churches and those Christian groups that were involved in the residential school system make a conscious and organized effort to educate their organizations on the harms of what those schools did and take an active role in respecting Aboriginal communities and their members' individual rights to practice spirituality according to the teachings of their ancestors.

Canada is a religiously pluralistic country because of its diverse population. This requires Canadians to act with tolerance and respect, including learning about each other’s faiths and beliefs, and accepting that differences can coexist. These actions can minimize or eliminate the divisiveness, hostility and prejudice seen throughout Canadian history towards Indigenous beliefs and practices associated with their spirituality.^[2]

There is a great responsibility of the church parties to mitigate the harms they caused to Indigenous peoples, and addressing these harms requires more than apologies. Our December 2, 2020 post on the Calls to Action #48 and 49 outlining the church parties apologies can be found here: https://ualbertalaw.typepad.com/faculty/2020/12/re-trc-call-to-action-48-49-settlement-agreement-parties-and-undrip.html

It is worth noting that although Pope Benedict expressed his sorrow for those who suffered at the Residential Schools, the Catholic Church has yet to issue a formal apology. This is shameful when considering that the Catholic Church ran 70% of the forced Indian Residential Schooling in Canada.^[3]   

Acknowledgements and apologies are an important first step, yet without action, they are empty words and empty promises of reconciliation. The spiritual harm and abuse that First Nations, Metis, and Inuit experienced during the era of colonial expansion require extensive education to understand the spiritual relationship with the Creator and with the Land that Indigenous peoples have. This education should include actively unlearning harmful views that place Indigenous ceremonies and practices as sinful in the eyes of God as referred to in the Anglican Church’s “Apology for Spiritual Harm”.  This apology was an excellent example of a church taking ownership.^[4] 

The arrogance of many churches resulted in grievous harm and the great loss of ceremonies and spiritual teachings that have sustained the First Peoples for generations upon generations. The intergenerational spiritual trauma created by the arrogance of many churches may begin to heal by furthering cultural education to church clergy, members, and leaders that identifies the importance of Aboriginal practices and ceremony.

Call to Action #60 is a very difficult recommendation to universally implement in Canada. It took Canada’s Supreme Court until 2017 with the Ktunaxa Nation v. British Columbia ^[5] case to issue a ruling on Indigenous religious freedom which in the end only ended up showing that the Supreme Court is unable to recognize its own colonial and culturally located position under the Charter.^[6]

There is no clear way to make it mandatory for a church organization to develop a curriculum of cultural education that would not violate their s. 2(a) Charter rights. This provision of the Charter works against Aboriginal Peoples in two ways, as previously mentioned and because protection under it requires claimants “to frame their religion in terms that are recognizable to the legal culture of Canada without reference to the colonial foundations of that very legal system or the broader colonial context of Canada”.^[7] Essentially indicating that Indigenous religious freedom, under s. 2(a), is currently an impossibility and poses a significant barrier.  

From a policy perspective, this is a very difficult recommendation for the government to implement that would be effective, it would need to work with Indigenous communities and organizations cohesively to do so and make significant changes in government policy. Moving forward, it remains up to each religious group to play its own part in working towards reconciliation through cultural education and it will be interesting to see who takes this seriously. ^[8]

Until Next Time,

Team ReconcilAction YEG

[1] Acadia University, “TRCtalk” online: <http://courseware.acadiau.ca/trctalk/category/calls/>. 

[2] Benna Crawford, “The Advantages of Religious Diversity” (29 Sept 2017), online: Classroom <classroom.synonym.com/the-advantages-of-religious-diversity-12087077.html>.

[3] CAID.ca, “Church Apologies for Indian Residential Schools”, online: <caid.ca/Dchurch_apology.html>. 

[4] Archbishop Fred Hiltz, “An Apology for Spiritual Harm” (July 12, 2019) online: <anglican.ca/news/an-apology-for-spiritual-harm/30024511/>.

[5] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16816/index.do 

[6] Nicolas Shrubsole, Policy Options, “The Impossibility of Religious Freedom”, 2017 online: The impossibility of Indigenous religious freedom (irpp.org) 

[7] Ibid

[8] TRCtalk, supra note 1, Call to Action #60. 

\

Mandatory Minimum Sentences and Justice

(Photo credit: "The Deciders," by Nathalie Sheppard, https://journals.library.brocku.ca/index.php/SSJ/article/view/1246)

Tansi Nîtôtemtik,

Our topic today, Call to Action #32, involves important areas for criminal justice reform. Call to Action #32 states:

We call upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.^[1]

Restrictions on Conditional Sentences

Conditional sentences are non-custodial sentences served in the community. Under s.742.1 of the Criminal Code, conditional sentences cannot be given in certain circumstances, like where the maximum term of imprisonment is 10 years or more.^[2] Further amendments to the Criminal Code under the Safe Streets and Communities Act^[3] made conditional sentences unavailable for even more offences, including property offences like motor vehicle theft.^[4]  

These restrictions reflect the problematic nature of the Canadian criminal justice system. Rather than attending to the factors that lead to criminal behavior, more and more restrictions are placed on sentencing options. These restrictions lead to increased incarceration that simply perpetuates the current overincarceration of Indigenous peoples. 

Mandatory Minimum Sentences (MMS)

Mandatory minimum sentences are minimum sentences that must be imposed by sentencing judges upon the conviction of certain offences. These minimum sentences apply regardless of the specific details of the offence or the circumstances of the offender. Historically, mandatory minimum sentences have been reserved for the most serious offences, such as murder.^[5] In the past two decades, however, mandatory minimum sentences have been legislated for a broader range of offences under the Criminal Code of Canada and other legislation like the Controlled Drug and Substances Act (CDSA).^[6]  

Supporters of mandatory minimum sentences argue that they are necessary to reduce sentencing disparity, create predictability, protect the public and maintain public confidence in criminal sentencing.^[7] Yet studies have shown that mandatory minimum sentences do not deter from crime. ^[8] These studies lend support to the critical view of mandatory minimum sentences, which focuses on their negative consequences. Some arguments against mandatory minimum sentences include heightened risk of disproportionate sentences, increased incarceration of minorities, and removal of judicial discretion.^[9]  

Under the current regime, a sentencing judge can only depart from a mandatory minimum sentence if they declare the required mandatory minimum sentence to be unconstitutional. Mandatory minimum sentences have, on multiple occasions, been found unconstitutional by Canadian courts under Section 12 of the Charter, which protects against cruel and unusual punishment. 

For example, in 2015 the Supreme Court found that the mandatory minimum sentence for possession of a prohibited or restricted firearm with ammunition was unconstitutional in R v Nur^[9] . More recently, Canadian courts have brought attention to the manner in which mandatory minimum sentences result in sentences that disregard the principles set forth in R v Gladue^[10] and R v Ipeelee. As we've discussed at length this week, Gladue and Ipeelee ^[11] require sentencing judges to consider the systemic and background factors that impact an Indigenous offender’s culpability. (see our related posts here & here)

In R v Ookowt, a twenty year old Inuk man from Nunavut argued that the mandatory minimum sentence for reckless discharge of a firearm was unconstitutional because it breached Section 12 of the Charter. The sentencing judge agreed, based on the offender’s personal characteristics, especially upon consideration of Gladue factors.^[12] The sentencing judge’s decision was overturned on appeal, but notice to appeal the Nunavut Court of Appeal decision to the SCC has been filed.^[13]

TRC Call to Action #32 recognizes the disproportionate impact that mandatory sentencing has on Indigenous people in the criminal justice system. A sufficient response to this Call would address competing values where governments want to appear “tough on crime” despite the unacceptable over incarceration of Indigenous people and research that showed punitive sentencing does not deter crime. To date, however, no legislation has been passed to allow any departure from mandatory minimum sentencing of Indigenous offenders. 

Final Thoughts

The Government’s lack of response to Call to Action #32 represents another empty promise to reduce the overincarceration of Indigenous peoples in Canada. Comprehensive criminal justice reform is required to make real progress towards these goals, and as Team ReconciliAction has discovered as we attend to the Justice Calls to Action, very little change has been accomplished so far. For these reasons, we are assigning a failing grade. 

Thank you for reading. Until next time,

 

Team ReconciliAction YEG

¹Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, Truth and Reconciliation Commission of Canada, 2015) at 167. 

²Criminal Code,  R.S.C., 1985, c. C-46, s.742.1. [Criminal Code] 

³S.C. 2012, c. 1.

⁴Public Prosecution Service of Canada, “6.3 Statutory Restrictions on the Use of Conditional Sentences” (March 2014), online: <www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p6/ch03.html>. 

⁵Criminal Code, supra note 2, s.235(2). 

⁶Controlled Drugs and Substances Act, S.C. 1996, c. 19. [CDSA]

⁷Kari Glynes Elliott & Kyle Coady, “Mandatory Minimum Penalties in Canada: Analysis and Annotated Bibliography” (March 2016) online (PDF): Department of Justice Canada <https://www.justice.gc.ca/eng/rp-pr/jr/mmp-pmo/mmp-pmo.pdf>. 

⁸Mary Allen, “Mandatory minimum penalties: An analysis of criminal justice system outcomes for selected offences” (August 2017) online(pdf):<https://www150.statcan.gc.ca/n1/en/pub/85-002-x/2017001/article/54844-eng.pdf?st=WNKZ1Ez_>.  

⁹R v Nur, 2015 SCC 15.

¹⁰[1999] 1 S.C.R. 688. [Gladue]

¹¹2012 SCC 13. [Ipeelee]

¹²R v Ookowt, 2017 NUCJ 22. 

¹³2020 NUCA 5, leave to appeal to SCC filed, 2020 CarswellNun 40. 

Statutes of Limitation and Indigenous Civil Claims

 

Tansi Nîtôtemtik,

Today ReconciliAction YEG continues our assessment of the Justice Calls to Action, specifically Call to Action #26:

We call upon the federal, provincial and territorial governments to review and amend their respective statutes of limitations to ensure that they can conform to the principle that governments and other entities cannot rely on limitation defences to defend legal actions of historical abuse brought by Aboriginal people.^[1]

To better understand the importance of this Call to Action, let’s first review the function of statutes of limitations.

Statutes of Limitations

Statutes of Limitations are pieces of legislation that place time limits on when a civil claim can be brought forward. If the limitation period for a claim has expired when it is brought to court, the other party can plead the applicable statute of limitations as a defence. 

With the exception of Quebec, each province has Statute of Limitations legislation. In Alberta the statute is the Limitations Act.^[2] The reasoning behind this legislation is:

1) security, so that parties know when they can be sued; 

2) fairness, by ensuring that evidence is preserved and;

3) ensuring that parties bring their actions forward in a timely manner.^[3]  

Legal Actions of Historical Abuse

The historical abuse suffered by Indigenous peoples through institutional actions is no mystery. From Residential Schools where children were taken from their families and subjected to  physical, psychological, and sexual abuse to the attempted elimination of Indigenous cultures and languages through government policy, many of these historical abuses could found legitimate civil actions. Further, the Government has a special legal relationship with Indigenous people, known as a fiduciary duty. This duty refers to the special responsibility of the Government to act in the best interests of the Indigenous people of Canada.

Legal actions have been brought forward by Residential School survivors, most commonly for sexual and physical abuse suffered at the hands of staff.^[4] The reason these historical claims could be brought forward was because most Canadian provinces exclude sexual abuse from having a limitation period.^[5]  

Litigation guidelines for civil litigation involving Indigenous peoples were published by the Department of Justice in 2018, which state: 

Litigation Guideline #14: Limitations and equitable defences should be pleaded only where there is a principled basis and evidence to support the defence…

When determining whether such circumstances exist, counsel must consider whether the defence would be consistent with the honour of the Crown. Reconciliation is generally inhibited by pleading these defences^[6].

While the Government has pledged to adjudicate Indigeneous claims fairly with a focus on reconciliation, their actions speak differently. For example, when the Canadian Human Rights Tribunal ordered the Government to pay compensation to First Nations youth in care in First Nations Child and Family Caring Society of Canada^[7]; their response was to file an appeal on jurisdictional grounds. ^[8] While a limitations defence was not plead, the Government’s choice to appeal does not demonstrate a desire to preserve the “honour of the Crown”. (See our post about the Decision here.)

As of now, no amendments have been made to the Statutes of Limitations of any Canadian provinces or territories to reflect Call to Action #26 and allow “expired” civil claims stemming from the historical abuse suffered by Indigenous peoples. As a result, Team ReconciliAction is giving a failing grade on Call to Action #26. 

Final Thoughts

It is not hard to comprehend why the TRC made Call to Action #26. For true reconciliation, Canada needs to remove procedural barriers like Statutes of Limitations for the adjudication of Indigenous claims. Accountability is central to reconciliation, and by failing to implement unequivocal legislation that ensures historical claims can be brought forward, accountability is lost.  

Thanks for reading. Please let us know your thoughts on this post!

Until next time,

Team ReconciliAction YEG

¹ Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, Truth and Reconciliation Commission of Canada, 2015) at 167.

²Limitations Act, RSA 2000, c L-12. [Limitations Act]

³M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 SCR 6 at 29-30.

⁴See R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411; H.L. v. Canada (Attorney General), 2005 SCC 25; Cloud v. Canada (Attorney General), 2004 CanLII 4544 (ONCA); Blackwater v. Plint, 2005 SCC 58; E.B. v. Order of the [Roman Catholic] Oblates of Mary Immaculate in the Province of British Columbia, 2005 SCC 60; Canada (Attorney General) v. Fontaine, 2017 SCC 47. 

⁵ With the exclusion of Prince Edward Island. 

⁶ Department of Justice Canada, “The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples” (2018) online (pdf):<www.justice.gc.ca/eng/csj-sjc/ijr-dja/dclip-dlcpa/litigation-litiges.pdf> at 18.

⁷First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2. [First Nations Child and Family Caring Society of Canada]

⁸First Nations Child and Family Caring Society of Canada, “A historic legal victory for First Nations children and Canada’s failure to comply” (29 Jun 2017) Committee on the Elimination of Racial Discrimination, 21st – 23rd Reports of Canada, Alternative Report, online (pdf): <tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/CAN/INT_CERD_NGO_CAN_27941_E.pdf>. 

Entering the Dragon's Den

 

We end our political party week by discussing Canada’s founding political party. The Conservative Party adopted its values and policies from the British Tories and governed Canada for 29 consecutive years after Confederation.¹ Since Confederation the Conservative Party has changed substantially. For the purpose of today’s post we will be focussing on the Conservative Party’s merger after the year 2000 and its upcoming leadership race.

Before unifying in 2003, there were two separate and distinct conservative parties: the Canadian Reform Conservative Alliance and the Progressive Conservative Party of Canada.² The two merged in December 2003 with overwhelming support from both parties and a hope of creating a stronger and more unified conservative movement.³ A newly formed party required one more thing: a newly elected leader to bring new life to the campaign. On March 20th, 2004, Stephen Harper became the first leader of the Conservative Party of Canada.⁴ Harper led the Conservatives to success in the 2006 election, and maintained control of the Canadian government until November 2015.

After the loss of the 2015 election, Harper chose to step down from party leadership leaving Rona Ambrose as the current interim party leader.⁵ This brings us to the current state of the Conservative government. On May 27th, 2017, Conservative Party members will vote to elect the party’s new leader. Fourteen candidates put their names forward almost immediately upon notice of the election, but polls suggest that there are really only three contenders.⁶

With an early lead over the other candidates, polls suggest that Kevin O’Leary with (22.1%) will be the next Conservative leader.⁷ Controversial, outspoken, loud, and critical of Canada’s current Liberal government, O’Leary has certainly created a name for himself. Perhaps Conservative Canadians are unhappy with how Justin Trudeau and the Liberals are running the country, or maybe O’Leary’s name is more recognizable due to his fame from “Dragon’s Den.” Regardless of the reason, O’Leary’s election seems likely.

What platform is O’Leary actually running on when you look past the loud media rants and wild antics? The answer is hard to determine. O’Leary’s campaign page suggests that he wants to support small businesses and hardworking Canadians using his investment background.⁸  He also suggests that it is time for the country to be run by someone who is not a career politician. Sound familiar? I recall a certain Donald Trump making similar suggestions south of the border. While O’Leary may have good intentions of balancing the Canadian budget and providing support to working Canadians he does not make any tangible suggestions as to how he will do this. But he is a businessman so he must know how to deal with the economy, right?

The Conservative Party would head in an interesting direction if O’Leary were elected. If he’s elected I hope O’Leary will make, and keep, tangible promises to Canadians, rather than just rant about Justin Trudeau’s time in office. Who knows though, maybe by May 27th Kellie Leitch or Maxime Bernier will take the vote. All we can do now is stay tuned and leave you with a quote from O’Leary:

"I understand what he is doing with the media, and you can certainly claim I am trying to do the same, but I am not Donald Trump."⁹

 

 

 

¹ Trevor W Harrison, “Conservative Party”, The Canadian Encyclopedia (19 August 2015), online: <www.thecanadianencyclopedia.ca/en/article/conservative-party/>.

² Conservative Party of Canada, “Our History” (2017), online: <www.conservative.ca/our-party/our-history/>.

³ Ibid.

⁴ Ibid.

⁵ Conservative Party of Canada, “Leadership” (2017), online: <www.conservative.ca/leadership/en>.

⁶ “Conservative leadership candidate Kevin O'Leary says he knows where 'rot' is at CBC: 'We could save billions of dollars'”, Toronto Sun (28 March 2017), online: <www.torontosun.com/2017/03/28/conservative-leadership-candidate-kevin-oleary-says-he-knows-where-rot-is-at-cbc-we-could-save-billions-of-dollars>.

⁷ Ibid.

⁸ Kevin O’Leary, “Why I’m Running” (2017), online: <https://olearyforcanada.ca/en/why/#0>.

⁹ The Canadian Press, “A selection of quotes from Conservative leadership candidate Kevin O'Leary” Times Colonist (18 January 2017), online: <www.timescolonist.com/a-selection-of-quotes-from-conservative-leadership-candidate-kevin-o-leary-1.7857343>.

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.

Interview with Provincial Court's Judge Judith Shriar

Today we expand on our Access-to-Justice themed week, with a discussion on Alberta’s court system. Today’s post emphasizes the role that the courts play in helping litigants navigate the legal process once they’ve been introduced to the system. When courts give better access to self-represented litigants, more people can afford to pursue a claim or defend a claim or charge before a judge.

We recently had the opportunity to interview the Honourable Judge Judith Shriar of the Provincial Court of Alberta. She sits in Calgary, as well as in regional areas near the city, on criminal and some civil matters.

Through her time on the bench, Judge Shriar has heard a variety of charges, litigants, and issues, though she noted that she hears a large number of drinking and driving related charges. Judge Shriar observed that men appear in her courtroom more often than women and she sees more younger defendants than older. She made special note that these demographics do not change drastically from urban to rural, or even reserve centres.

In our justice system, there is currently cause for concern for self-represented litigants to represent themselves in court. Judge Shriar noted that courts have implemented programs and resources to help litigants navigate the murky waters of the legal system. The Provincial Court has “done a great job of making tools available online for litigants to access,” Shriar said.  

She further recognized that these resources have allowed self-represented litigants to become better equipped to handle their cases in court.

“I do think that people often do a good job on their own. Especially when people are unrepresented you see that people have really thought through their claim… they’re organized.”

However, there are always those who “slip through the cracks.” Sometimes a self-represented litigant faces an uphill battle during a dispute against a litigant with an experienced lawyer. When asked whether the judiciary has a responsibility to ensure that litigants are on equal playing fields, Judge Shriar confirmed that, though her jurisdiction to intervene is limited, she does what is appropriate within her position as an impartial judge to make litigants aware of the resources available to them, and even to step in when necessary to prevent gross injustices.

Another common area of concern is an increasing strain on limited court resources. Judge Shriar agrees that with respect to both manpower and infrastructure, the scarcity of court resources is an issue. In light of this problem Judge Shriar explained how Calgary’s Provincial Court has implemented programming to combat and mitigate the effects of diminishing resources.

She called Calgary’s Provincial Court a “leader across the province and the country,” when dealing with diminishing resources. For example, to deal with small overburdened rural courtrooms, regional dispositions are sometimes moved to Calgary. Setting aside a day for this purpose has helped to save time and effectively utilize the resources currently in place.

Another example is the Provincial Court's use of technology. For example, the court’s use of CCTV has reduced the need to transport parties and witnesses to courts. This eases the burden on support staff like sheriffs, clerks, and drivers.

When asked about the future of the courts and litigants’ ability to access and navigate them, Judge Shriar is optimistic. Since she was called to the bench, she has noticed many changes that increase both the efficiency of the court system and assist the courts in reaching appropriate verdicts. Specifically, technology and alternative dispute mechanisms have alleviated some of the pressures on the court system, while providing litigants with appropriate tools in which to solve their dispute.

However, more can be done.

We asked Judge Shriar what next steps the courts might take to continue to solve some of the issues individuals face when accessing the justice system. She said that, “the delay issue is critical. There were 15 charges dropped in Edmonton by a crown prosecutor to address these delay issues.”

“The courts do have a role to play in the process of helping to address root causes,” she said, and accordingly, we are likely to see an increase in “therapeutic courts, matrimonial courts, drug courts, and experimental programs.”

These measures will continue to funnel litigants out of the courtrooms while still providing them with the appropriate oversight. Solving disputes before trial, through programs such as mediation or judicial dispute resolution, saves both litigants and the courts time and money.

The Canadian justice system faces obstacles and challenges to provide fair and affordable access to its resources. It is clear at this point that Calgary’s Provincial Court has taken significant steps forward, leading Canada’s courts toward a future with a more accessible and balanced system of litigation and dispute resolution.

Interview: Student Legal Services' Executive Coordinator, Neil Thomson

Today, we explore a unique, local resource that facilitates access to justice.  We met with Student Legal Services of Edmonton's Executive Coordinator, Neil Thomson, to find out more about the organization, what they do, and hear about just how much work they do by the numbers.

 

 

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.

 

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.

Breaking a New Year's Resolution: An Alternative Facts Version

*updated 8 Feb 2017

Or, that didn't last very long, did it?

One of my New Year's resolutions was to avoid commenting on any social media platform, even my own blog, about any silliness from any Canadian court below the Supreme Court on any subject having even the remotest connection to causation or contribution issues in any area of Canadian law. I'm about to break that resolution here and I've just broken it elsewhere for the same reason.

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

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

You'll find Part One on Slaw.

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

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

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

Purposive Dancing With The Stars - Part 5

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

 

Supreme Court of Canada Appointments

Dear Sir or Madam,

Yesterday we  outlined the structure of Canada’s court system. Today we move on to Canada’s highest judicial authority, the Supreme Court of Canada (SCC).

Sections 4-6 of the federal Supreme Court Act specify the composition of the SCC. The Governor in Council (the governor general, on advice from the Prime Minister’s Cabinet) appoints an individual who has been a judge of a provincial superior court—the Court of Queen’s Bench of Alberta or Supreme Court of British Columbia for example—or who has been a lawyer for at least ten years standing at the bar of any province.[1] Three of the SCC judges must be from Quebec, which  is likely to ensure that the SCC bench is sufficiently experienced with Quebec’s civil law system. It is also customary to include judges from across Canada’s geographical regions: three from Ontario, one from British Columbia, one from the Prairie provinces, and one from the Maritimes.

In August this year, Prime Minister (PM) Justin Trudeau announced a new nomination process for selecting SCC judges in an attempt to ensure that the process is “transparent, inclusive, and accountable.”[2] Before the new selection process, the PM appointed SCC judges through a simpler but arguably less transparent process. Before August 2016, the Prime Minister’s Office could nominate any superior court judge or lawyer in accordance with the SCA and the Constitution Acts, 1867-1982.[3] Customarily, this included conferring with provincial Attorneys General and with the Chief Justice of the SCC. Usually, this process resulted in a bench comprised of Justices with similar political and social values to the sitting government’s views. The nominees will probably continue to be politically aligned with sitting governments, but PM Trudeau’s intention is to demonstrate to the public that the nominees are selected for more than their political views.

The new Independent Advisory Board for Supreme Court of Canada Judicial Appointments, chaired by Rt. Hon. Kim Campbell, convened to “provide non-binding, merit-based recommendations” to the PM.[4] By August 24, the Board had received 31 applications. It provided a short-list of 5 candidates to the PM, who nominated Hon. Malcolm Rowe. The Minister of Justice and Attorney General of Canada, Hon. Jody Wilson-Raybould, explained that the PM chose Rowe J. from the short-list “because of his legal and judicial acumen, public service background, ability to work in French, and ‘depth of understanding’ of Canada’s ‘diversity.’”[5] It also helped that Rowe J. fills retiring Justice Thomas Cromwell’s Atlantic region seat. As a result of this more transparent process, the public can review Justice Rowe’s application questionnaire here.

On October 25, 24 parliamentarians convened in Ottawa in a new question-and-answer session to determine Justice Rowe’s proficiency in French, his attention to diversity in Canada, and his commitment to access to justice. Inquirers included the leaders of the NDP, Green Party, and Bloc Quebecois, senators (including Hon. Murray Sinclair, first Manitoba Indigenous judge and former chair of the Indian Residential Schools Truth and Reconciliation Commission), and other members of the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs. You can view the question-and-answer session here.

Section 41 of the Constitution provides the standard procedure to amend the “composition of the Supreme Court of Canada”.[6] It is the same as amending the office of the Queen or the Governor General and Lieutenants General of the provinces. In 2014, former PM Harper nominated Justice Marc Nadon from the Federal Court of Appeal, the Governor General appointed him, and he was sworn in according to the SCA.

Unfortunately, despite Nadon J.’s experience, expertise, and suitability to sit as puisne justice of the SCC, he was ineligible to be appointed.[7] The SCC decided with a 6-1 majority in Reference re Supreme Court Act, ss. 5 and 6 that the correct interpretation of ss. 5 and 6 of the SCA excludes current judges of the Federal Court of Appeal from sitting on the SCC.[8]

The Supreme Court Act does not state that a Military Court judge, a Tax Court judge, Federal Court judge, or a Federal Court of Appeal judge can be appointed to the SCC. Other sections in the act do refer to judges of the Tax Court, Federal Court, and Federal Court of Appeal,[9] so it is unlikely to be an error in drafting.

The new process for selecting SCC judges does not change the ultimate appointment process, so it is not necessary to amend the SCA or the Constitution. It merely suggests appropriate candidates to the PM and, hopefully, would prevent an incident like that in 2014 because there are more experts reviewing the candidates.

Humble regards,

The Dominion

 

[1] RSC, 1985, c S-26 [SCA].

[2] Justin Trudeau, Prime Minister of Canada, “New process for judicial appointments to the Supreme Court of Canada”, News (Ottawa: 2 August 2016), online: <pm.gc.ca/eng/news/2016/08/02/new-process-judicial-appointments-supreme-court-canada>.

[3] 30 & 31 Victoria, c 3 (UK), s 41(d) [Constitution].

[4] “The Independent Advisory Board for Supreme Court of Canada Judicial Appointments”, Office of the Commissioner for Federal Judicial Affairs Canada (2 August 2016), online: <www.fja-cmf.gc.ca/scc-csc/index-eng.html>.

[5] Tonda Maccharles, “Supreme court nominee’s sex assault ruling no concern for Kim Campbell”, The Toronto Star, online: <https://www.thestar.com/news/canada/2016/10/24/supreme-court-nominees-sex-assault-ruling-no-concern-for-kim-campbell.html>.

[6] Constitution, supra note 3.

[7] Justice Thomas Cromwell, as quoted by Laura Stone and Sean Fine, “Nadon appointment rejected on technicality, Justice Cromwell says”, The Globe and Mail (Ottawa: 14 September 2014), online: <www.theglobeandmail.com/news/politics/nadon-appointment-rejected-on-technicality-justice-cromwell-says/article31891826/>. For more information see <www.cbc.ca/news/politics/marc-nadon-s-failed-journey-to-the-supreme-court-1.2636403>.

[8] 2014 SCC 21, [2014] 1 SCR 433 at para 4.

[9] See, for example, SCA, s 30.

Interview with Professor Craig Jones about Insite's Charter Challenge

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

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

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

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

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

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

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

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

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

With humble regards,

The Dominion

 

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

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

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

[4] SC 1996, c 19.

Law and Social Media - Meet the Team - Leri Koornhof

Dear Sir/Madam:

 

There are but four working and schooling days in this week following Labour Day (which was first celebrated in the spring five years after first creating the Dominion). Therefore, this post is the first of two today to introduce all five bloggers in the Law and Social Media course.

We are pleased to introduce the gang’s second oldest member, and the only one born in the 1980s (which were so much better than the 1970s, we’ll have you know, Mr. Welke). Leri Koornhof is a third-year student at the Faculty of Law at the University of Alberta. She is the only blogger who was part of this course last year and is excited to continue the standard of research, writing, and connecting history with interesting modern concepts which may relate to the study of law.

Ms. Koornhof has an educational background in Humanities and her work experience includes writing and editing for a former Minister of Justice Canada, serving tables at both elegant and non-elegant establishments, selling sports cars on the west coast, and tutoring and mentoring children and youth with special needs. Despite her advanced age (of which LSA President Nick Todd often is apt to remind her), Ms. Koornhof has learned to use these novel instruments with microchips and invisible rays to share her thoughts on historical events and how they interact with current legal analyses and social issues.

Contrary to Mr. Todd’s insistence, Ms. Koornhof is not a contemporary of the The Dominion. However, what she lacks in first-hand experience she vows to meet by researching and analyzing interesting facts to keep The Dominion’s readers glued to their brightly lit technology screens. For example, one major change in law from the 19th century to the 20th century was granting women and non-European men the right to vote. Ms. Koornhof’s work with the Ms. Suffragette team in the 2016 Winter semester explored the history of the suffrage movement in Canada. Click here for a #FBF from this Friday to another Friday past (a bit like virtual time travel!) where Ms. Suffragette explored the famous Persons Case of 1929.[1] Until the Judicial Committee of the Privy Council (JCPC)[2] interpreted it differently the BNA Act stood in the way of women being considered legal persons for the purpose of becoming senators. Thus, in the words of the JCPC, the BNA Act was to be seen “a living tree capable of growth and expansion within its natural limits” (tip: if you are just starting law school, you will probably see this doctrine of constitutional law on your exam) so as to accommodate the changing needs of Canadian society.

 

Your Humble Servants,

The Dominion

 

[1] [1930] AC 124, 1929 UKPC 86.

[2] One of the major changes during the evolution of Canada’s independence during the 20th century following the BNA Act was ceasing to appeal court cases to England’s JCPC; instead, we rely on our Supreme Court of Canada for the ultimate interpretation of legislation.

Law and Social Media - Meet the Team - Paul Welke

Dear Sir or Madam,

We write to you today in order to introduce our oldest member, Paul Welke. Paul has the dubious distinction of being our only member to have been born in the 1970s.

Born and raised in Edmonton, he joined the Canadian Forces at 17, and transferred to the Intelligence Branch shortly after, which gave him both the opportunity to do two NATO peacekeeping tours to Bosnia-Herzegovina with the Royal Canadian Air Force, as well as an excuse for taking seven years to complete his Bachelor of Arts.

As is the case with many BA grads, Paul soon found that creativity would be required to secure gainful employment. After leaving the Canadian Forces, he started work as a Communications Technician with a major telecommunications company and earned his Journeyman ticket in that trade.

Eventually, he found the actual work that accompanied a job in the trades to be somewhat objectionable. Along with his family, he made the decision to pursue a career in Law, which had been a dream of his for some time. He commenced his legal education at Thompson Rivers University in Kamloops, BC, but transferred back home after his first year. While he found that Kamloops can be surprisingly picturesque and he was saddened to leave the friends that he found within the students and faculty at TRU Law, Edmonton has always been home, and Paul was excited to be able to complete his legal studies at his alma mater, the University of Alberta. Even more importantly, he was elated to discover that he would not have to spend two more school years away from his wife and son. They, on occasion, share in this joy at having him back home.

Paul has always had a love for criminal law and related constitutional law issues. He is currently seeking an articling position with a firm that shares his passions for access to justice and civil liberties. In addition to this, Paul is a volunteer and supporter of the Criminal Law Project of Student Legal Services of Edmonton, as well as the Founding Director of Innocence Alberta, a project that shared the dedication of their parent organization, Innocence Canada, to identifying, advocating for, and exonerating individuals convicted of a crime that they did not commit and to preventing such injustices in the future through legal education and justice system reform.

Outside of school, Paul enjoys playing board games and using his eight year old son as an excuse to do nerdy things, such as dressing up in matching Marty McFly costumes for Edmonton Expo. He has also kept a blog for the past two years detailing his misadventures as an older law student, which due to its rather liberal use of naughty words, will not be linked here. You are welcome to try to find it on your own. Aside from finishing his studies this year, Paul has resolved to pick up two of his old hobbies by ceasing to neglect his camera and his beer- and wine-making equipment.

 

Any queries for Paul can be sent to TheDominion1867@gmail.com, @Dominion_2017 on Twitter, or /Dominion2017 on Facebook.

 

Your Humble and Obedient Servants,

The Dominion