University of Alberta Faculty of Law Blog

Say Their Names

Abigail Andrews

Ada Brown

Adele Rose Mary Matinet

Adrienne Amikons

Aielah Saric-Auger

Alannah Cardinal

Alberta Williams

Alice Netemegesic

Alisha Germaine

Alissa Martin-Travers

Amanda Bartlett

Amanda Cook

Amanda Simpson

Amber Guiboche

Amber Tuccaro

Andria Meise

Angel Carlick

Angela Meyer

Angela Poorman

Angela Williams

Angeline Pete

Anne Maria Lucas

Anne Peters

Annette Holywhiteman

Annie Pootoogook

Annie Yassie

Ashley Machiskinic

Ashley Smith

Audrey Desjarlais

Azraya Ackabee-Kokopenace

Azraya Kokopence

Barbara Keam

Barbara Kentner

Barbara Loon

Barbara Shapwaykeesic

Beatrice Adam

Belinda Cameron

Belinda Williams

Bella Laboucan-McLean

Bernadette Ahenakew

Bernadette Leclair

Bernadine Quewezance

Bernice Bottle

Bernice Joan Rich

Betsy Owens

Bonnie Jack

Bonnie Joseph

Brandy Vittrekwa

Brandy Wesaquate

Brenda Campbell

Brittany Bearspaw

Brooklyn Moose

Caitlin Potts

Caralyn King

Carol Davis

Carol Prudhomme

Caroline Burns

Carolyn Connolly

Cassandra Antone

Cecilia Nikal

Cecilia Payash

Chantelle Bushie

Charity Keesic

Charlene Catholique

Charnelle Masakeyash

Cherisse Houle

Cheryl Black

Cheryl Duck

Cheryl Johnson

Cheyenne Fox

Chloe Matthews

Christina Littlejohn

Christine Cardinal

Cindy Gladue

Clarene Rose Panamick

Claudette Osborne

Constance Cameron

Corrine Moosomin

Crystal Saunders

Cynthia Audy

Cynthia Lynette Jamieson

Danielle LaRue

Danita Bigeagle

Daphne Mesher Brown

Darlinda Ritchey

Dawn Crey

Dawn Keewatin

Deanna Bellerose

Debbie Pelletier

Debbie Sloss-Clarke

Deborah Toulouse

Deidre Michelin

Delaine Copenace

Delena Lefthand Dixon

Della Ootoova

Delores Brower

Delores Brown

Delores Whiteman

Delphine Nikal

Denise Katherine Bourdeau

Desiree Oldwoman

Destiny Tom

Diana Rattlesnake

Diane Dobson

Diane Marshall

Diane Stewart

Donna Kabatay

Donna Kasyon

Donna Taylor

Donna Tebbenham

Doreen Hardy

Doreen Jack

Dorothy Spence

Edith McGinnis Quagon

Edna Bernard

Edna Smith

Elaine Alook

Elaine Flowers

Elaine Vawn LaForme

Elena Assam-Thunderbird

Elizabeth Dorion

Elsie Sebastian

Emily Ballantyne

Emily Osmond

Emma Dixon

Ernestine Kasyon

Eva Mitchell

Evaline Cameron

Evelyn Kebalo

Felicia Solomon

Flora Muskego

Fonassa Bruyere

Frances Ellah

Freda Goodrunning

Geraldine Beardy

Geraldine Settee

Gladys Simon

Gladys Tolley

Glenda Morriseau

Glennis Edwards

Gloria Black Plume

Gloria Gladue

Gloria Jean Martha Abotossaway

Gloria Moody

Heather Ballantyne

Heather Pelletier

Heaven Traverse

Helen Gillings

Helen Louise Jacobs

Helene Ratfat

Helyna Rivera

Henrietta Millek

Hilda Agawa

Hillary Wilson

Ila Oman

Immaculate Basil

Irma Murdock

Jacqueline Crazybull

Jamie McGuire

Jane Bernard

Jane Jack

Jane Louise Sutherland

Janet Henry

Janet Sylvestre

Janice Desjarlais

Janine Wesaquate

Jarita Naistus

Jean Moccasin

Jean Sampare

Jeanenne Fontaine

Jeanette Basil

Jeanette Cardinal

Jeanine St Jean

Jeannette Chief

Jennifer Catcheway

Jennifer Stewart

Jessica Cardinal

Joanna Andersen

Joanne Ghostkeeper

Jocelyn McDonald

Joey English

Jordina Skunk

Josephine Chakasim

Josephine Thompson

Joyce Hewitt

Joyce Tillotson

Juanita Cardinal

Judie Thibault

Judy Ann Benoit Ogden

Judy Ann Quill

Judy Chescue

Judy Quill

Justine Cochrane

Kari Gordon

Karina Wolfe

Karla Desrosiers

Katelynne Sampson

Kathleen Leary

Katie Ballantyne

Kellie Little

Kelly Goforth

Kelly Morrisseau

Kimberly Jararuse

Krystal Andrews

Krystle Knott

Lana Derrick

Laura Pilon

Lavina Tocher

Leah Anderson

Leanne Benwell

Leanne Lawson

Leona Brule

Leslie Talley

Liana Mathewson

Linda Condo

Linda Guimond

Linda Scott

Lisa Lynn Anstey

Lisa Young

Liz Bonnie Sakakeesic

Lora Banman

Lora Frank

Loretta Capot-Blanc

Loretta Lavalley

Loretta Saunders

Lori Berens

Lori Kasprick

Lorilee Francis

Lorraine Rivers

Louise Lorraine Laderoute

Lynn Childforever

Mabel Leo

Mae Morton

Maggie Burke

Maggie Mink

Maggie Natomagan

Maisy Odjick

Marcia Koostachin

Margaret Blackbird

Margaret Guylee

Margaret Perrault (Bluebird)

Margaret Vedan

Marguerite Dyson

Mariah Wesley

Marie Banks

Marie Desjarlais

Marie Laliberte

Marie Lasas

Marie Mike

Mariella Lennie

Marilyn Daniels

Marilyn Munroe

Marjorie Henderson

Marlene Abigosis

Martha Boyce

Mary Ann Birmingham

Mary Ann Davis

Mary Goodfellow

Mary Hill

Mary Keadjuk

Mary Kreiser

Mary Lidguerre

Mary Mark

Mary Peters King

Mary Smith

Mary Susan Evans-Harlick

Mavis Mason

Maxine Susanne Peters

Maxine Wapass

Melanie Geddes

Melissa Chaboyer

Mercedes Stevens

Michelle Gurney

Michelle Hadwen

Mildred Flett

Minnie Sutherland

Misty Potts

Mitzi MacDougall

Moira Erb

Monica Cardinal

Monica Jack

Myrna Montgrand

Nadine Machiskinic

Nancy Dumas

Naomi Desjarlais

Nellie Angutiguluk

Nicole Daniels

Nicolle Hands

Olivia Williams

Pamela Holopainen

Pamela Napoleon

Patricia Carpenter

Patricia Favel

Patricia Quinn

Patricia Wadhams

Paula Joy Martin

Pauline Brazeau

Petrina Lynn Whitecrow

Philomene Lemay

Rachel Quinney

Ramona Shular

Ramona Wilson

Rebecca Guno

Rebecca Jean King

Rena Fox

Rene Gunning

Renee Neganiwina

Rhonda Gardiner

Rhonda Running Bird

Richele Bear

Roberta Elders

Roberta Ferguson

Roberta Lincoln

Rocelyn Gabriel

Rose Decoteau

Rose-Ann Blackned

Rowena Sharpe

Roxanne Charlie

Roxanne Fleming

Roxanne Isadore

Roxanne Thiara

Ruby Hardy

Ruth Cocks

Sabrina Polchies

Samantha Johnings

Samantha Paul

Sandra Kaye Johnson

Sarah Jane Wawia Bernard

Sarah Mason

Sarah Obed

Sarah Skunk

Savannah Hall

Selina Wallace

Serena Colson

Serenity

Shannon Alexander

Sharon Abraham

Sharon Merasty

Sharon Murphy

Shelley Anderson

Shelley Lynne Joseph

Shelley May Anderson

Shelly Dene

Shirley Beardy

Shirley Cletheroe

Shirley Lonethunder

Shirley Waquan

Simone Sanderson

Sindy Ruperthouse

Sonya Nadine Mae Cywink

Spring Phillips

Stella St. Arnault

Stephanie Cormier Chaisson

Sunshine Wood

Susan Assin

Sylvia Guiboche

Tabitha Kalluk

Tamara Chipman

Tamra Keepness

Tania Marsden

Tanya Brooks

Tanya Hill

Tanya Nepinak

Tashina Cheyenne Vaughn General

Teresa Robinson

Terra Gardener

Terrie Dauphinais

Thelma Pete

Therena Silva

Theresa Anne Yakimchuck

Therese Labbe

Theressa Wilson (Jamieson)

Tiffany Morrison

Tiffany Skye

Tina Fontaine

Tricia Paquette

Trudy Gopher

Vanessa Tagoona

Velma Duncan

Verna May Simard-Shabaquay

Verna Patricia Sturgeon

Verna Simard

Victoria Crow Shoe

Victoria Hornbrook

Viola Isabella Panacheese

Viola Melvin

Viola Panacheese

Violet Heathen

Vivian Cada

Wendy Poole

Yvonne Elizabeth King [1]

 

Tansi Nîtôtemtik,

        These names belong to Indigenous women who have been murdered or are missing from communities across the country. Too often they are reduced to numbers on a page or lines on a graph.

        They were grandmothers, mothers, daughters, sisters, aunties, cousins, and friends. They were humans. And they deserved better. Say their names.

#SayHerName [2]

Until next time,

Team ReconciliAction YEG

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[1] This list is not complete; hundreds more have lost their lives to gendered and racialized violence. Our list is a compilation of work done by Maryanne Pearce (https://docs.google.com/a/ualberta.ca/spreadsheets/d/1pvMIkZ2JmoXCUEnUWmYbcFWxfz5xcD7ljz_a8UIVOH0/pub?output=html), No More Silence (http://itstartswithus-mmiw.com/community-lists/#1485456540464-287e628c-dde8), and the CBC (http://www.cbc.ca/missingandmurdered/).

[2] Kimberle Crenshaw and the African American Policy Forum launched the #SayHerName campaign in 2015 in an effort to call attention to violence against Black women in the United States. Say Her Name documents stories of Black women who have been killed by police and shines a spotlight on forms of police brutality experienced disproportionately by women of colour.  The initiative focuses on the intersections of race and gender, and the violence that exists there. These and other intersections must also be considered in the context of violence done to Indigenous women in Canada.

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In the Media: Last Week in Edmonton

Tansi Nîtôtemtik,

        On October 4, the University of Alberta’s Faculty of Arts hosted What Comes Next: Political Afterlives of the Truth and Reconciliation Commission. The roundtable discussion featured big names (Glen Coulthard, Audra Simpson, and Robert Nichols), and even bigger ideas. Of particular note was the panel’s focus on the dark side of reconciliation – a dark side that, like last week’s terrorist attack, is generally not an issue most Canadians expect.

        Nichols drew a parallel between the ‘Jewish Question,’ and the Holocaust it enabled, to the ways in which Canada has been working to solve its ‘Indian Problem.’ He encouraged attendees to consider that what we are really dealing with in this country is a white supremacy problem. He also discussed the inherent contradictions in Canada’s political and juridical systems that make the framework of reconciliation at best, weak, and at worst, useless. After all, how can a country, whose capitalistic economy is based on continuous acquisition and growth, honestly accommodate Aboriginal title? As Nichols suggested, “it might not be possible.”[1]

        “Reconciliation,” Simpson explained, “is simultaneously impossible and irresistible.”[2] She noted that rather than being a meaningful tool for moving forward, Canada’s reconciliation project is instead a strategic and re-subjectifying political tool being wielded against Indigenous peoples and keeping them “in their place, as wounded.”[3] It is cunningly constructed to ensure that anyone who speaks out against reconciliation is placed in an antagonistic position to former students of residential schools and accordingly critics become the villains in a twisted trick of fate. Simpson’s conclusion was that reconciliation is simply the government’s latest attempt to make Indigenous peoples disappear.

        Like Simpson, Coulthard focused on alternative ways of looking at reconciliation. In his opinion, however, the apparatus of reconciliation was crafted to pacify Indigenous peoples following the Oka Crisis and the Red Power movements that gained international attention in the 70s, 80s, and 90s. Institutional reconciliation was “deployed”[4] as a means of subduing Indigenous militancy and calming the economic uncertainty that accompanied it. The language of reconciliation, Coulthard further argued, pathologizes Indigenous peoples and replaces the need for political reorganization with a need for healing. He advocated the development of a “combative consciousness”[5] as opposed to giving in to patriarchal, capitalist, state control. Ultimately, Coulthard admitted, he is more interested in the “political pre-lives of reconciliation”[6] than he is with the afterlife.

        The panelists were, in plainest terms, bad-ass. Their observations served as an important wake-up call for those of us who work within the context of the TRC, reminding attendees that in some ways, reconciliation can itself be a “mechanism of violence.”[7] Many thanks to the inspiring speakers and to the political science students and faculty members that made it happen.

Until next time,

Team ReconciliAction YEG

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[1] Robert Nichols, (What Comes Next: Political Afterlives of the Truth and Reconciliation Commission Event, delivered at the University of Alberta, Edmonton, 4 October 2017) [unpublished].

[2] Audra Simpson, (What Comes Next: Political Afterlives of the Truth and Reconciliation Commission Event, delivered at the University of Alberta, Edmonton, 4 October 2017) [unpublished].

[3] Ibid.

[4] Glen Coulthard, (What Comes Next: Political Afterlives of the Truth and Reconciliation Commission Event, delivered at the University of Alberta, Edmonton, 4 October 2017) [unpublished].

[5] Ibid.

[6] Ibid.

[7] Ibid.

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The Indian Residential Schools Settlement Agreement: An Introduction

Tansi Nîtôtemtik,

        The Indian Residential Schools Settlement Agreement (IRSSA) was negotiated in 2006 and formally implemented in 2007. It contains five core elements:

1. Common Experience Payment (CEP) – This element was available to eligible former students, but the onus was on the claimants to provide proof and verification that they had attended a residential school included in the agreement (not all schools were). The CEP was meant to cover claims for loss of language and culture, and for minor sufferings. Successful claimants were entitled to a base payment of $10,000 plus $3,000 for each year of attendance.[1]
2. Independent Assessment Process (IAP) – This element was available to former students who had been subjected to sexual abuse and/or serious physical abuse. Claims could be brought for sexual and physical assault committed by adult employees of residential schools; for sexual or physical assaults committed at a residential by one student against another where staff knew or should have known about the abuse; and for any other wrongful act committed by an adult at a residential school that resulted in serious psychological consequences.[2] If a former student wanted to pursue a specific abuse claim outside of the IAP, they were forced to opt out of IRSSA entirely and thus forfeit their CEP.
3. Healing Initiatives – Funds were donated to the Aboriginal Healing Foundation and the Indian Residential Schools Resolution Health Support Program.
4. Commemorative Activities – This element included installations or events that honoured former students and paid tribute in tangible ways. One example is the federal government’s so-called ‘Apology’ in 2008.[3]
5. Truth & Reconciliation Commission – This element resulted in the TRC Final Report, Executive Summary, and Calls to Action.

        Although some scholars argue that the settlement process provided a favourable alternative to adversarial litigation,[4] others are not so sure. Kent Roach, for example, identifies the ways in which the IRSSA, and the civil litigation and ADR processes that preceded it, “failed to appreciate the full scope of the harms of residential schools.” He postulates that these processes ultimately “re-victimized residential school survivors and downplayed the responsibility of Canadian governments, churches, and society for the harmful legacy of the schools”[5] through the incorporation of tort law principles.

        The tort law principle of causation requires a causal link be established between a wrongful act and a compensable harm. In IRS claims, causation has taken the form of arguments stipulating that harms suffered by former students were caused not by the abuses suffered in residential schools but rather by factors including the life choices of the claimant and members of their family.[6]

        In tort law, a wrongdoer is liable for a victim’s injuries even where those injuries are made worse by a preexisting condition. With this line of reasoning, the wrongdoer need only return the victim to their original position – the wrongdoer does not have to compensate the victim for effects they would have experienced whether or not the wrong was done.

        In the context of IRS claims, this principle (known as the ‘crumbling skull argument’) has been utilized by abusers in an attempt to frame claimants as having been damaged before they ever set foot in a residential school. These arguments “focused on family violence, alcoholism, and poverty”[7] and aimed to create an original position where Indigenous peoples were already injured, and already predisposed to the results of abuse.[8] In addition to creating a culture of victim-blaming, this type of argument effectively put claimants on trial in that they were burdened with disproving this presumed pathology.    

        Even at a macro level, the idea of providing cash for suffering is, in many ways, offensive. Some survivors have indicated that they feel the IRSSA and other mechanisms of compensation are means by which the government is paying for silence. It is important that we take a critical approach the IRSSA (whose interests did it really serve?), but at the end of the day, financial compensation is arguably better than nothing…

        The rest of this week’s posts will be dedicated to exploring how we arrived at the IRSSA, what the IAP entails, and the statistics surrounding the settlement process.

Until next time,

Team ReconciliAction YEG

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[1] Truth and Reconciliation Commission of Canada, “History: Part 2” in The Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at 572.

[2] Government of Canada: Indigenous & Northern Affairs, “Indian Residential Schools” (2016), online: http://www.aadnc-aandc.gc.ca/eng/1100100015576/1100100015577#sect1. Accessed October 5, 2017.

[3] The image above shows Phil Fontaine and Stephen Harper participating in one of the IRSSA’s commemorative activities. Image taken from https://www.thestar.com/news/canada/2013/04/30/auditor_generals_report_2013_lack_of_cooperation_threatens_indian_residential_schools_agreement.html.

[4] See Kathleen Mahoney, “The Settlement Process: A Personal Reflection” (2014) U of T LJ 64:4.

[5] Kent Roach, “Blaming the Victim: Canadian Law, Causation, and Residential School” (2014) U of T LJ 64:4 at 566.

[6] Ibid, at 571.

[7] Ibid, at 575.

[8] Elizabeth Adjin-Tettey, “Righting Past Wrongs through Contextualization: Assessing Claims of Aboriginal Survivors of Historical and Institutional Abuses” (2007) Windsor YB Access to Justice 95:134 at 126.

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To Boldly Go...

What will Canada be like in another 150 years? Despite deepening darkness in the world around us, I like to be optimistic. I think that Canada, and hopefully our world, will be a better, fairer place in the centuries to come. Since Confederation, Canada’s laws have increasingly reflected our social and political values toward equality and fairness.

However, I doubt the text of our Constitution will change much. The amending formula found in section 42 of the Constitution Act, 1982 requires too much buy-in from too many different places with different agendas. Any changes to the text of the Constitution require votes in favour in seven of the ten provinces, which must exceed half the population of the country.¹ We will be freer and fairer, but regional squabbles will always exist. Barring a war which redraws maps and forces us to rewrite the entire thing, the text itself probably won’t have changed much. It’s possible Quebec will not even have ratified it..

Luckily, the Supreme Court of Canada (SCC) has always shown a willingness to adopt a living tree doctrine, allowing our society to evolve with changing Canadian values. It was the SCC that insisted on protecting people from discrimination based on sexual orientation.² It was the SCC that established the right to assisted suicide.³ It was the SCC that established that our outdated sex work laws were dangerous.⁴ The SCC split 6-3 over whether something must have identifiable harm to be criminalized and, as the challenger wished to establish, whether prohibition of marijuana was unconstitutional.⁵

As the SCC and future progressive parliaments will push our society forward in some ways, new technologies will push it forward in others. Automation is the way of the future (though people touting new AI as a replacement for lawyers clearly do not understand the profession), and Canada must adapt accordingly.

One adaptation I see to deal with those issues is the adoption of a Universal Basic Income (UBI) scheme. UBI is the idea of making sure that everyone has a basic standard of living through no-strings-attached cash payments. The largest social change in centuries will have to occur, and will require Canadians to stop stigmatizing a lack of gainful employment. We need to not look down on people who don’t “work”, especially those who choose not to in order to pursue art, education, and invention.

The future is bright. Our courts are willing to reinterpret our constitution to reflect our changing society. Our country is evolving at an incredibly rapid rate. Happy 150, Canada. I hope I live long enough to see a fraction of how great things will be when you hit 300.

¹Constitution Act, 1982, s 42, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

²Vriend v Alberta, [1998] 1 SCR 493, 156 DLR (4th) 385.

³Carter v Canada (Attorney General), 2016 SCC 4, [2016] 1 SCR 13.

⁴Bedford v Canada (Attorney General), 2013 SCC 72, [2013] 3 SCR 1101.

⁵R v Malmo-Levine, 2003 SCC 74, [2003] 3 SCR 571.

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>.

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>.

Fringe Political Parties and the Democratic Process

Canada constitutionalized the right of people to join and leave organizations, take collective action, and pursue interests of members in section 2(d) of the Charter of Rights and Freedoms. Canada also enshrined the right to participate in federal elections (section 3). These are the same rights that allows political parties to assemble and have candidates run under a party name in every election.

There are many ‘serious’ parties that run in every election. Excluding the biggest contenders (Conservative, Liberal, and NDP), there are also many small parties who benefit from s 2(d) of the Charter, such as the Communist Party of Canada, Democratic Advancement Party of Canada, and the Libertarian Party of Canada, to name a few.¹

But what about the satirical parties, who, some would argue, abuse this Canadian fundamental freedom, allegedly making a mockery of the democratic process?

The Rhinoceros Party of Canada was active for 30 years, from 1963-1993 and in 2010, re-emerged under a new name. The party ran new candidates in the 2015 federal election, and their main campaign promise was “a promise to keep none of its promises.”² Their platform included repealing the law of gravity, banning Canadian winters, and getting rid of the Rocky Mountains so “Albertans can see the Pacific sunset”.³

Though humorous and satirical, the Rhino Party is considered a legitimate political party under Canadian law. As long as they ran candidates in at least 50 ridings (see Figueroa), the Rhino Party was able to keep its status into the 90’s. Through its 30 year-long existence, no one from the Rhino Party was ever elected as an MP; they were not victorious in any riding.

Should the party have been allowed to exist in the first place? They have never had a successful candidate, and their platform is both outrageous and unrealistic.

Sections 24 and 28 of the Canada Elections Act legislates that to be a registered party, a party must have 50 candidates on the ballot. In the 2003 case of Figueroa v Canada, Figeuroa argued that the 50-candidate rule discriminated against smaller parties and was unconstitutional under s 3.⁴ The Supreme Court of Canada found that s. 3 does not provide unlimited participation in the political process.

“The mere fact that the legislation departs from absolute voter equality or restricts the capacity of a citizen to participate in the electoral process is an insufficient basis on which to conclude that it interferes with the right of each citizen to play a meaningful role in the electoral process.”⁵

The Court has clearly taken the position that although it understands the importance of section 3, it will not provide unlimited rights for participation in democracy. But should parties including the Rhino Party be allowed to run candidates?

However offensive as this may seem to some, fringe parties like the Rhino Party play an important role in the Canadian political scene. Sebastien Corriveau, the Rhino Party’s leader, hopes that his party’s approach to politics will help to “engage at least some Canadians in the democratic process”.⁶

"There are so many people who don't care about politics. If we can make them engage through humour, then that's okay," he said. "We always run for a majority government, but failing that, some comedy. There are some things worth saying that no one else can say."⁷

So perhaps it’s important to have these parties who are willing to take a different approach to politics, all in the name of the democracy.

¹“Rhinos and Pirates: A Look at Canada’s Federal Fringe Parties”, CTV News (30 August 2015), online: <www.ctvnews.ca/politics/rhinos-and-pirates-a-look-at-canada-s-federal-fringe-parties-1.2538158>.

²“Rhino Party Escapes Extinction to Run in September By-Election”, CBC News (7 August 2007), online: <https://web.archive.org/web/20121109030040/http://www.cbc.ca/news/canada/story/2007/08/07/rhino-election.html>.

³“14 Weird Platform Promises From teh Now-Defunct Rhinoceros Party”, Maclean’s (30 August 2014), online: <www.macleans.ca/society/14-weird-platform-promises-from-the-now-defunct-rhinoceros-party/>.

⁴Figueroa v Canada (Attorney General), 2003 SCC 37.

⁵Ibid at para 36.

⁶Kathleen Harris, “Fringe Parties Fight to Spread Message, Sway Swing Ridings”, CBC News (29 August 2015), online: <www.cbc.ca/news/politics/canada-election-2015-fringe-parties-marijuana-1.3206935>.

⁷Ibid.

 

Liberal Party of Canada - New Constitution

This week, we examine some of the political parties in Canada. We start with the governing party, the Liberal Party of Canada, and its new internal constitution. Check back each day as we feature the Rhino Party, the NDP, the Libertarian Party, and the Conservative Party.

Coincidentally, as we recognize the 150th anniversary of Canada’s first constitution, the BNA Act, the leader of the Liberal Party is the son of the Prime Minister who patriated Canada’s new constitution in 1982. A constitution provides structure and guidance to lawmakers; it is their ultimate rulebook when drafting new laws and managing existing ones. Similarly, each political party also has a constitution to set out the parameters of its internal governance along with bylaw documents, similar to bylaws that corporate entities establish.

In 2016, the Liberal Party of Canada revamped their constitution, voted it in on May 28th, and put it into effect on January 1st, 2017.[1] The goal was to make membership in the party more accessible to a larger number of people and to create a permanent political campaign.[2] Among the changes are waiving the $10 member registration fee, increased participation in the policy development process, and allowing any registered Liberal member to attend conventions. This marks the first time that a major federal political party has offered free membership.[3]

The new 17-page constitution with its 10 bylaws replaces the previous 81-page document.[4] It streamlines the party’s bureaucracy, allowing readers to understand the party’s organization and increasing flexibility for individuals to participate in the political process.[5] The constitution’s preamble states that the Liberal Party “strives to provide a flexible and democratic structure whereby all Canadians can obtain [information and participate in] action both electoral and non-electoral.” The goal is to reach and include more individuals who will support the party in future elections.

The constitution was met with strong opposition. Despite its commitment to transparency and increased democracy, critics warned that the grassroots accessibility was not as promising as had been advertised. Some local party officials and regional members criticized the lack of openness, transparency, and consultation. They alleged that the executive was trying to “strong-arm” it into effect.[6] The party leader and top executives appeared to have expanded their concentrated power over campaigns and policy.[7] Critics argued this was a:

potentially controversial change that would discontinue the historic tradition of developing party policy positions for election campaigns through national convention debate and votes on resolutions from grassroots party members across the country.[8]

To alleviate these concerns the executive amended the constitution just hours before the vote and Trudeau addressed directly and publicly the allegations of increased centralized power.[9] The amendments and Trudeau’s speech to increase support were successful. Ultimately, the convention delegates voted strongly in favour: 1,988 to 66.

Although there was much opposition to this new constitution, members clearly saw the need for a complete overhaul. Criticism has been subdued but it is possible that it might arise again as the party moves forward under the new constitution. Having suffered election setbacks in the last few elections, the new governing structure might aid the Liberal Party in future elections.

 

[1] Liberal Party of Canada, “Towards a More Open Liberal Party” (2017), online: Federal Liberal Agency of Canada <https://www.liberal.ca/1party/towards-a-more-open-liberal-party/>.

[2] Lee Berthiaume, “A Leaner Liberal Machine: Trudeau Convinces Party Members to Sign off on New Constitution,” National Post (28 May 2016), online: Canada.com <news.nationalpost.com/news/canada/canadian-politics/trudeau-ready-to-take-the-stage-at-liberal-convention-where-members-have-concerns-about-new-constitution>.

[3] Ken Hanly, “Canadian Federal Liberal Party Adopts New Constitution,” Digital Journal (29 May 2016), online: digitaljournal.com <www.digitaljournal.com/news/politics/canadian-federal-liberal-party-adopts-new-constitution/article/466581>.

[4] Tim Naumetz, “Justin Trudeau, Party Brass Set to Gain More Power over Campaigns, Policy Under New Proposed Liberal Constitution,” Hill Times (15 April 2016), online: Hill Times Publishing <https://www.hilltimes.com/2016/04/15/justin-trudeau-party-brass-set-to-gain-more-power-over-campaigns-policy-under-new-proposed-liberal-constitution/58608#>.

[5] Hanly, supra note 3.

[6] Ibid.

[7] Naumetz, supra note 4.

[8] Ibid.

[9] Berthiaume, supra note 2.

Are Dementors Coming to Canada?

Separate from muggles (non-magical people), witches and wizards live their lives in secret. Hiding their magic from the non-wizarding community, they formed an entire world with schools, government agencies, and policing forces. Their existence is unknown to muggles as their government enacts laws to keep their identities and use of magic a secret.

Witches and Wizards live peacefully alongside No-Majs (Canadian and American muggles), attending the Calgary Stampede every summer, and skiing in the Rockies during the winter.

Similar to No-Maj Canada, serious offenders in the wizarding world are sent to prison. Across the pond in Britain, the guards of the magical prison, Azkaban, were Dementors (until the fall of Lord Voldemort, when they were replaced by specially trained wizards).

This begs the question: Could Dementors be validly employed as guards of Canadian wizarding prisons?

(For the purpose of this article I assume that all laws enacted in Britain for the wizarding population apply in Canada.)

Dementors have been called the scariest magical creature.¹ They feed on hope, happiness, and peace. They also “suck every good feeling, every happy memory” out of their victims. Many prisoners died in Azkaban, or turned insane from the Dementors.

The conditions at Azkaban were declared inhumane from the presence of Dementors, and would arguably breach s. 12 of the Charter: the right not to be subject to cruel and unusual punishment.²

In Canadian jurisprudence, cruel and unusual punishment is defined in R v Smith as “so excessive as to outrage standards of decency”, or “grossly disproportionate to what would have been appropriate.”³ The Court in Smith and later cases, provide guides to measure whether the punishment was proportional. Some of these include the the person’s characteristics, the seriousness of the crime, the objectives of the punishment, and how the individual would be impacted.⁴

Importantly, Canadian courts have made note that the test for a cruel and unusual punishment is deferential to the government and a finding of cruel and unusual should be rare.⁵

In Azkaban, all prisoners regardless of the crime are subject to the Dementors and their effects. This in-and-of-itself indicates that proportionality is an issue; the seriousness of the crime is not considered at all when prisoners are sent to Azkaban as they are subject to the same Dementor interaction.

In addition, the use of Dementors as prison guards could be deemed a form of psychological torture. Canada’s Criminal Code defines torture as “any act or omission by which severe suffering, whether mental or physical, is intentionally inflicted on a person”.⁶ Dementors purposefully breed on pain and suffering, driving prisoners to insanity and overwhelming them with their darkest, saddest memories. That most definitely constitutes a form of torture under the Criminal Code.

Torture is illegal in Canada under the Criminal Code, but is also declared cruel and unusual under s. 12 of the Charter. For these reasons and with acknowledgement of deferential judgments, I can conclude that the use of Dementors at Azkaban breaches prisoners s. 12 Charter rights to be free from cruel and unusual punishments.

However, Ministry action that breach Charter rights may be saved under s. 1, a justified infringement. The Ministry of Magic in Britain allowed Dementors to remain as the guards to Azkaban for hundreds of years for a number of policy reasons that must be acknowledged.

First, Dementors must feed on souls. By confining the creatures to the Island on which Azkaban is situated, it keeps them in a controlled area by allowing them to feed on prisoners’ souls. If Dementors were kicked off the Island, many fear that they would head for the cities to find souls to feed on, jeopardizing the souls of innocent witches and wizards.⁷

Second, they are incredibly effective prison guards.⁸ Prior to Azkaban’s existence, convicted witches and wizards would be sent to smaller prisons around Britain. Breakouts were common and the magical community feared breaching the International Statute of Secrecy when prisoners escaped and made a ruckus. Since Azkaban was built, only two prisoners have escaped.  

Third, Aurors (the specially trained wizards who now guard Azkaban) are an elite group of specially trained witches and wizards. They are the crème-de-la-crème of the wizarding world, and serve to protect. However, their use as prison guards at Azkaban is arguably a waste of resources. These magical people are specially trained to catch witches and wizards practicing in the Dark Arts. They are not trained in prison control or magic outside of the Dark Arts.

However, Dementors have declared their allegiance to Lord Voldemort; they allowed two mass breakouts of Death Eaters in support of He Who Shall Not Be Named. Though he is dead and gone, it is possible that another powerful evil wizard will come along and gain their support.

All this to say, it is not likely that the use of Dementors at Azkaban could be a justified infringement under the Charter given the policy factors discussed above.

Though I cannot in good conscience propose an alternative, Mr. Shacklebolt has agreed to listen to proposals from readers. He is expected to make the trip to Ottawa next week where he is taking appointments.

¹J.K. Rowling, “Why Dementors are the scariest magical creatures”, Pottermore (blog), online: <https://www.pottermore.com/features/why-dementors-are-the-scariest-magical-creatures>.

²Canadian 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 12.

³R v Smith, [1987] 1 SCR 1045.

⁴Smith, supra note 3; R v Goltz, [1991] 3 SCR 485; R v Morrisey, 2000 SCC 39, [2000] 2 SCR 90.

⁵Steele v Mountain Institution, [1990] 2 SCR 1385.

⁶Criminal Code, RSC 1985, c C-46, s 269.1(2).

⁷J.K. Rowling, “Azkaban”, Pottermore (blog), online: <https://www.pottermore.com/features/why-dementors-are-the-scariest-magical-creatures>.

⁸Ibid.

 

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

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

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

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.

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>.

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

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

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

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

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

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

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

 

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

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

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

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

[5] Ibid, s 91(24).

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

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

[8] Ibid at 455.

Promoting Cultural Diversity on International Mother Language Day

 

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

 

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

 

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

 

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

 

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

 

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

² Ibid.

³ Ibid.

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

⁵ Ibid.

⁶ “International”, supra note 1.

⁷ Ibid

⁸ Ibid.

It's National Flag of Canada Day!

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

The Great Flag Debate

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

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

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

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

The Design

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

 

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

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

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

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

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

Reception

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

 

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

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

³Levine, ibid.

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

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

⁶Levine, supra note 2.

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

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

⁹Diefenbaker, ibid. 

¹⁰Diefenbaker, supra note 8.

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

¹²Reid, ibid; History, supra note 7.

¹³History, ibid.

¹⁴History, ibid.

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

Throwing it Back on Tuesday: People Edition

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

 

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

 

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

 

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

 

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

 

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

 

 

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

² Ibid.

³ Ibid.

⁴ Ibid.

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

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

⁷ Ibid.

⁸ Ibid.

⁹ Ibid.

¹⁰ Aylsworth & Trovato, supra note 5.

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

¹² Ibid.

 

Alice in Wonderland: It’s Not Just Fiction

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

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

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

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

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

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

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

^{*Edited on February 1st.} 

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

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

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

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

⁵Supra, note 2.

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

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

⁸Supra, note 6.

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

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

Sir Alexander Campbell: Father of Confederation and Trusted Advisor

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

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

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

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

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

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

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

 

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

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

[3] Hurtig, supra note 1.

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

[5] Swainson, supra note 2.

[6] Hurtig, supra note 1.

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

[8] Canadian Confederation, supra note 4.

[9] Hurtig, supra note 1.

[10] Swainson, supra note 2.

[11] Ibid.

[12] Hurtig, supra note 1.

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.

You Don’t Have to Be an ‘Originalist’ to Protect Free Trade

What will become of the New Brunswick court case that promised to “free the beer” along with other goods traded across provincial borders? Some will recall the April decision in R. v. Comeau, which New Brunswick is apparently now seeking leave to appeal directly to the Supreme Court of Canada. In that decision, the New Brunswick Provincial Court ruled that the province’s effective ban on liquor purchased out-of-province was unconstitutional. The trial decision relied on section 121 of the Constitution Act, 1867, which requires that goods from one province be “admitted free” into any other.

In striking down the New Brunswick law, the trial court had to deal with a series of precedents that had narrowed section 121 to the point of insignificance, holding that that the provision only ruled out customs tariffs on interprovincial trade, not other types of barriers. The trial judge overcame these precedents, in part, by appealing to the original meaning of the Constitution.

Thanks to some valuable research by lawyer Ian Blue, it’s now clear that the framers of our 1867 Constitution envisaged robust free trade protections, not a mere ban on customs duties. In fact, the framers were quite familiar with “non-tariff” trade barriers of the kind erected by the United States under its 19^th century Reciprocity Treaty with the British colonies of North America. While pre-Confederation free trade statutes in the colonies had indicated only that goods were to be admitted free “from duty,” the broader language of section 121 seems to have reflected a conscious decision to prohibit more than just tariffs.

Many readers (and lawyers) will find this line of reasoning persuasive. Yet there are those who will object that, in Canada, courts are not bound by the original meaning of the constitutional text. As the Supreme Court likes to remind us from time to time, the Canadian Constitution is a “living tree” capable of growth and adaptation over time. What the Constitution meant in 1867 is not dispositive. For this reason, if the Comeau decision rests on originalist reasoning alone, it is vulnerable on appeal. For instance, New Brunswick will likely argue that the meaning of the constitutional free trade provision has changed over time to reflect new realities, including wide-ranging provincial economic regulation that inevitably gives rise to trade barriers.  

So does the “living tree” approach condemn us to expensive beer, along with the other negative effects of interprovincial trade barriers? Not necessarily. As I argue in a recent article on the topic, robust free trade protections accord with contemporary Canadian values, and jurisprudence can be developed to draw an appropriate balance between protecting the common market and providing for provincial regulatory authority.

While things are becoming less certain in other countries, in Canada a cross-party consensus still favours free trade. This is seen in the push for international trade deals, as well as in the recent agreement between the provinces and the federal government to lower interprovincial trade barriers. Free trade continues to be valued, as it was at Confederation, both for its economic benefits and for its potential to promote Canadian unity. The framers’ attitude towards free trade, as reflected in the Constitution, is not some anachronism, like the property qualifications for senators. The case for free trade continues to resonate with Canadians.

Moreover, the experience of the U.S. and Australia, which both provide robust constitutional protections for internal trade, indicates it’s possible for courts to strike down unjustified trade barriers while still providing ample space for government regulatory authority. The key is the concept of discriminatory treatment. If a regulation treats out-of-province goods differently from in-province goods, it’s probably unjustified. A rule of this nature leaves provinces with ample room to regulate their economies. The notion that the Comeau decision will necessarily undermine the structure of Canadian federalism, or hamstring provincial regulatory powers, is fundamentally misguided and ignores the experiences of other jurisdictions with constitutional free trade protections.

As the Comeau litigation winds its way up the Canadian court system, a lot of attention will rightly focus on the original public meaning of section 121. But you don’t need to be an originalist to hope that the Supreme Court enforces the Constitution’s guarantee of a common market. Keeping up with the times on free trade leads right back to 1867.