University of Alberta Faculty of Law Blog

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

Dear Sir or Madam:

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

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

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

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

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

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

Still hoping one day the ceiling will shatter,

The Dominion

 

 

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

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

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

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

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

⁶ Henein, supra note 4.

⁷ Watkins, supra note 5.

⁸ Henein, supra note 4.

Eat Local, Shop Local, Invest Local?

Is Canada entering a new era of slow-growth? If so, what does this mean for how we think about economic development? It might mean implementing new ways to support small to medium-sized local businesses. Not just start-ups with the potential for exponential growth, but the “mom and pop” businesses which provide local employment and keep small town main streets vibrant. In recent years, it has become fashionable to “eat local”. Perhaps it’s time for more Canadians to “invest local” as well.

Like eating local, investing local has important limits, particularly in a northern country with a commodity-based economy. It makes sense for Canadians to invest a substantial portion of their savings in other economies because it diversifies their investment risk. But, as calculated by Momentum, a Calgary-based organization focused on community economic development, if Albertans invested 2% of their RRSP contributions locally that would be $114 million dollars to spread around to local businesses for expansion or upgrades. These investments can generate a modest financial return on investment, but, perhaps more importantly, are likely to generate a significant social return in the form of creating and maintaining local employment, and local access to goods and services.

Investing locally requires an appropriate investment vehicle. Crowdfunding is one way that small local businesses can try to access investment dollars. Although it seems likely that Alberta will adopt new crowdfunding rules recently implemented by other provincial securities regulators, I’m not sure crowdfunding will make sense for many small business owners.

A “community economic development investment fund” or CEDIF is a pool of capital, raised through the sale of shares in the fund, with a mandate to invest in a number of local active businesses. CEDIFs could be used in Alberta to facilitate local investment. CEDIFs have been used in Nova Scotia for over a decade, raising tens of millions of dollars for a variety of local businesses, from coffee roasters to wind farms. In Nova Scotia, investing in CEDIFs is facilitated through exemptions for CEDIFs from disclosure and other requirements that otherwise would apply to distributing shares in an investment fund under provincial securities regulations. This past summer, Courtney Hare, Public Policy Manager of Momentum, and I, with research help from UofA 2L Arooj Shah, made the case for a similar exemption in Alberta. You can access the full policy brief, “Enabling Local Investing in Alberta: The Role of Community Economic Development Investment Funds (CEDIFs)”, here.

If we are in a new era of slow growth, the road ahead for Alberta and the rest of Canada is unclear. It seems likely, however, that it will require more academic attention on community economic development initiatives like CEDIFs and making sure that the capital markets work for national, provincial and local economies.

Stop trying to make Prohibition happen, it's never going to happen.

Dear Sir or Madam:

Can you imagine a glass of wine at the end of a long work week being not only frowned upon, but outlawed? Can you imagine having a wine and cheese, but the wine had to be non-alcoholic? What about a society where wine tours, and craft beer tastings were banned by the government? Consuming alcohol is very much the status quo in our society, with many people choosing to consume alcohol in moderation. Though if we flashback to the late 1800s and early 1900s, the practice was not as widely accepted.

Prohibition is often associated with the United States’ decision to completely bar alcohol consumption, sales and distribution. The prohibition movement was an international phenomenon beginning in the late 19th century, with countries ranging from long-standing periods of prohibition (i.e. The United States) to more moderate regimes (i.e. Canada).¹ Canada was actually the first country to have a referendum regarding alcohol prohibition.² Prime Minister Laurier called the referendum in 1898, with 51% of the population voting in favour of prohibiting alcohol sales and consumption in the country.³ Although a narrow majority was in favour of prohibition, the government decided against passing a prohibition law because Quebec was vehemently against it.⁴ In fact, national prohibition only occurred as a war measure during the First World War.⁵ Today’s post will examine a brief history of the prohibition movement in Canada, and discuss why prohibition failed.

Prohibition first began with a movement towards alcohol temperance. The temperance movement was an international campaign promoting abstinence from alcohol, with proponents believing alcohol consumption was responsible for “society’s ills.”⁶ In Canada, “temperance societies" (collections of individuals who believed in the movement) formulated around 1827, with members tolerating moderate consumption of beer and wine.⁷ The main temperance advocates during the 19th century were the Dominion Alliance for Total Suppression of the Liquor Traffic and the Woman’s Christian Temperance Union.⁸ Gradually these societies shifted their values, advocating for a total prohibition.⁹

The Dunkin Act, 1864 was one of the first pieces of legislation to address prohibition. The Dunkin Act allowed municipal governments within the Province of Canada to prohibit retail sales of alcohol.¹⁰ The Canada Temperance Act of 1878 extended this local retail prohibition option to the entire Dominion after Confederation.¹¹ Therefore, prohibition implementation was left largely to local governments in the early stages.

Provincially, the first attempt at prohibition occurred just before the First World War.¹² Provinces banned alcohol at this time as a social sacrifice to help the war effort across the pond.¹³ A few years later, the federal government followed the provinces and enacted national prohibition in 1918 under the War Measures Act, 1914.¹⁴ The federal government believed that prohibiting the manufacturing and importation of alcohol would help the war effort by promoting the economy and conserving financial resources.¹⁵

Although there were small victories for prohibition supporters in Canada, the concept largely failed. Prohibition was more difficult to implement in Canada than the United States due to jurisdictional conflicts over alcohol regulation.¹⁶ The federal government has jurisdiction over the manufacturing and trading of alcohol, whereas the provincial governments have power over the sale and consumption.¹⁷ Further, Quebec rejected prohibition from 1919 because the province was making huge profits from alcohol related sales.¹⁸ Throughout the 1920s, the remaining provinces began to advocate for liquor sales, and voted to become “wet” provinces.¹⁹ Prince Edward Island was the last province to give up the prohibition movement during the 1940s, but some communities remained dry out of personal preference.²⁰

Social gatherings and situations would be significantly different today if prohibition continued to gain traction after the 1920s. You can not seriously tell me you actually enjoy talking to your great uncle Fred at family functions without a little alcoholic pick-me-up. Further, the alcohol industry is expected to be worth C$42 billion by the end of 2016.²¹ Consider the revenue the government would be losing by banning alcohol sales; and here in Edmonton we thought Rogers Place was a big investment.

Your Humble and Obedient Servants,

The Dominion

 

 

¹ Benoit Dostie & Ruth Dupré, “The people's will: Canadians and the 1898 referendum on alcohol prohibition” (2012) 49 Explorations in Economic History 498 at 498.

² Ibid at 499.

³ Ibid at 499.

⁴ Gerald Hallowell, “Prohibition in Canada” (12 August 2013), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/prohibition/>.

⁵ Dostie & Dupre, supra note 1 at 499.

⁶ Graeme Decarie, “Temperance Movement in Canada” (23 July 2013), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/temperance-movement/>.

⁷ Ibid.

⁸ Hallowell, supra note 4.

⁹ Decarie, supra note 6.

¹⁰ Hallowell, supra note 4.

¹¹ Ibid.

¹² Ibid.

¹³ Ibid.

¹⁴ Jack S Blocker Jr, David M Fahey & Ian R Tyrrell, Alcohol and Temperance in Modern History, 2nd ed (Santa Barbara: ABC-CLIO, 2003) at pg 229.

¹⁵ Ibid at 229.

¹⁶ Hallowell, supra note 4.

¹⁷ Ibid.

¹⁸ Ibid.

¹⁹ Ibid.

²⁰ Ibid.

²¹ Agriculture and Agri-Food Canada, Consumer Trends Wine, Beer and Spirits in Canada, Market Indicator Report September 2013 (Ottawa: Agriculture and Agri-Food Canada, 2013) at 3. 

I Can't Beleive It's Not Criminal: The Strange Case of the Margarine Reference

Dear Sir or Madam,

Most of the time, the Supreme Court of Canada considers explicitly weighty issues which affect the fabric of our society. Not all cases are like that. This week we will be showcasing some of the weirder cases that have been heard by the courts. Of course, despite their absurd appearance, most of these cases really do have some important lessons. For example, today we review Reference Re Validity of Section 5(a) of the Dairy Industry Act [Margarine Reference]. This case, with  its seemingly ridiculous nickname, is actually an important development in the concept of criminal law and federal/provincial jurisdictional boundaries.

In the British North America Act [BNA Act], the provincial governments have control over property rights. This includes producing and selling margarine. One exception is when something is prohibited by criminal law, which is a federal power. We see this in how the federal government is able to ban marijuana and other drugs. (As an aside, be sure to come back next week when we examine the potential effect of these sections of the BNA Act on the upcoming legalization of marijuana.)

In the 1920s, the federal government attempted to ban margarine in an attempt to protect Canadian dairy producers. The Dairy Industry Act forbade the importation, production, and even possession of margarine in Canada. This legislation was challenged and heard by the Supreme Court on October 16, 1949. Justice Rand wrote the decision, which struck down the prohibitions on manufacturing and possession. His evaluation was that a key aspect of criminal law was that there had to be an objective related to “peace, order, security, health, [or] morality”. Rand J. identified that the real motive behind the legislation was trade related rather than an appropriate objective for criminal law. Therefore, the Court ruled that the prohibition was not valid criminal law. Only the ban on importation was upheld by the Court because international trade is with the federal government, not the provincial governments.

Categorization of laws can sometimes be tricky, especially when there is a dispute between provincial and federal authority. It is important to consider both the form and the function of the law. In this case, the form may have been the same as the form for criminal law, but the function was outside of the scope of that category.

Your Humble and Obedient Servants,

The Dominion

¹ [1949] SCR 1, 1 DLR 433.
² Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(13), reprinted in RSC 1985, Appendix II, No 5.
³ Ibid s 91(27).
⁴ Controlled Drugs and Substances Act, SC 1996, c 19.
⁵ Margarine Reference, supra note 1.

Judging the Constitution: How Precedents Affect Powers

Dear Sir or Madam,

 

Yesterday, we wrote of constitutional conventions. There was some mention made of Re: Resolution to Amend the Constitution, in which the Supreme Court ruled on how conventions would determine how to amend the soon to be patriated Constitution.¹ This is an example of a reference case. A reference case is when a government goes to the Supreme Court and requests that they rule whether or not a certain policy that they wish to turn into law is constitutional.

 

One of the most important references cases was Re: Secession of Quebec. This case filled an important gap left in the British North America Act in 1867. Once Confederation was established there was no way to deconfederate and allow a province to split off. Given how hard it was to establish Confederation this is actually quite reasonable. However, this meant that as tensions rose between Quebec and the federal government there was no process in place to determine what was an acceptable method for Quebec to leave. The Supreme Court was asked whether unilateral secession was possible, and ruled that secession could only happen after negotiations with the federal government. This was ruled on the grounds that one province leaving Confederation would affect all other provinces, so it would be undemocratic to allow it to do so.²  More importantly, the RSQ highlighted four fundamental tenets of the constitution: Federalism, Democracy, Constitutionalism and the Rule of Law, and Protection of Minority Rights.  While the others are also enumerated in statute, much ink has been spilled with regards to the meaning and application of “Rule of Law”.  To put it succinctly, it establishes a hierarchy of laws, with constitutional law at the top, being supreme over all others.  Additionally, it requires adherence to principles such as predictability, in order to prevent arbitrary uses and abuses of power.

 

Highlighting the importance of federalism, the Supreme Court hears reference cases to decide jurisdiction. One example is  Reference re: Regulation & Control of Aeronautics in Canada, decided by the British Privy Council in 1931 (that was our highest court at the time. To find out when and why that practice ended, make sure you keep reading: Judiciary Week is coming up!). This case established federal, rather than provincial, control over the then-new field of commercial aviation. The Privy council gave two major reasons for their decision. First, section 132 of the British North America Act gives the federal government power over everything related to international treaties. Since 1919, aviation was affected by international treaties, so it made sense for the federal government to regulate it in accordance with those treaties. Secondly, the beginning of s. 91, the “POGG clause”, charges the federal government "to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the classes of Subjects by this Act assigned exclusively to the Legislatures of the provinces". This catch-all means that anything that does not fit into a s. 92 provincial power must fit under federal jurisdiction.³ The “POGG” Power refers to the “Peace, Order, and Good Governance” of Canada.

 

The POGG Power is one of the most contested areas in Constitutional law. Often this comes down to an analysis of the POGG Power, which has been defined in three distinct branches. The original use of the POGG was for emergencies such as war and natural disasters. However, economic crises were added to the definition of “emergency” by the Supreme Court in 1975.⁴ The second, covered by the Aeronautics Reference, is the gap branch. New issues, such as technological innovations which were not discussed in the original BNA Act, are given to the federal government.⁵ The third branch, national concern, applies to anything that the federal government can prove is an issue that affects all Canadians and therefore cannot be decided on a provincial level. A good example of this is environmental legislation. This was declared federal jurisdiction by the Supreme Court in R v Crown Zellerbach, in which a company accused of polluting a waterway disputed the federal law it was charged under.⁶ This case is also interesting because it shows how the Supreme Court can shape constitutional interpretation at any time, even when it is not an official reference case.

 

Even when the text of the Constitution is left unchanged, its interpretation can make a great deal of difference to what governments are or are not allowed to do. There are gaps to fill and vague clauses to define. When Parliament finds themselves unsure as to how to proceed, these roles are taken on by the Supreme Court.

 

Your Humble Servants,

The Dominion

 

 

 

¹Reference re: Resolution to Amend the Constitution, [1981] 1 SCR 753, 1 CRR 59 [Patriation Reference].

²Reference re: Secession of Quebec, [1998] 2 SCR 217, 51 CRR (2d) 1 [RSQ].

³Regulation and Control of Aeronautics, Re, [1932] AC 54, 39 CRC 108 [Aeronautics Reference].

⁴Reference re: Anti-Inflation Act, [1976] 2 SCR 373, 68 DLR (3d) 452.

⁵Aeronautics Reference, supra note 3.

⁶[1988] 1 SCR 401, 49 DLR (4th) 161.

What is Section 91?

Dear Sir or Madam:

Today we write to you regarding the emergence of section 91 of the British North America Act of 1867 (BNA Act) and the powers that the provision awarded. Canada needed to balance the competing interests of individual provinces with the ideal of creating a strong and united Canada. Canada was not the first country faced with this dilemma, many other sovereign nations, including the United States, encountered the same predicament while trying to write their constitutions. The BNA Act recognized the interests of both parties, concretizing Canada’s federal powers in s. 91, and provincial powers under s. 92. A brief history as to how these provisions arose is detailed below.

A month after the Charlottetown Conference (aforementioned in yesterday’s letter, click here to review yesterday's post), the existing provinces all met at the Quebec Conference to try and hash out a constitutional framework for the impending nation of Canada.¹ This was where federalism, or the division of powers between the federal and provincial governments, became a focal point of discussion. The delegates passed the “72 Resolutions”, which detailed which powers the provinces and the Dominion of Canada would retain should Confederation move forward.²

Certain provinces were interested in maintaining individual autonomy, whereas others were more interested in developing a strong centralized government. The Atlantic Provinces were particularly worried that a strong centralized government would leave their unique island needs improperly governed.³ Mainly due to their size and unique culture, they wanted to ensure they were still accurately represented at the national level. In contrast, John A. McDonald, one of Confederation’s key leaders, advocated for a strong centralized federal government to avoid tension between neighbouring provinces.⁴ This kind of tension led the United States down the road to the American Civil War, an ending McDonald wanted to adamantly avoid.⁵ Ultimately, the BNA Act would account for both provincial and national interests by creating a federalist nation under ss.91-92.

Section 91 granted the federal government several far-reaching powers. Notable powers included: regulation of trade and commerce, military, banking, bankruptcy and insolvency, Indians and Lands reserved for Indians, marriage and divorce, and the criminal law.⁶ The majority of these powers seemed to be a reasonable compromise since they had widespread impact on almost every province in the Dominion.

Other powers granted remained more suspect. Powers including: navigation and shipping, sea coasts and island fisheries, beacons, and ferries between provinces,⁷ seem to relate directly to the interests the Atlantic Provinces were concerned about losing control over. Last time we at the Dominion checked our records; the people of Upper Canada have not done much fishing or shipping in their day. Although a strong central government helped the Dominion establish a sense of unified allegiance, one must wonder if we gave the federal government too much power over practices they cannot accurately understand.

 

Your Humble and Obedient Servants,

The Dominion

 

¹P.B. Waite “Confederation”, (22 September 2013), http://www.thecanadianencyclopedia.ca/en/article/confederation/
²Ibid.
³Ibid.
⁴Ibid.
⁵Ibid.
⁶Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II, No 5.
⁷Ibid.

The Compromise of Confederation

Dearest Friends,
Today, we present the sordid tale of the compromises required to bring about the unification that we would eventually see in 1867.

In 1840, Upper and Lower Canada had been joined through the English Parliament's Act of Union¹.  The next year, the new entity was named the “Province of Canada”.  It's creation and stability was a feat in and of itself, as it required the cooperation of English and French speaking entities. Unsurprisingly, the aforementioned stability was mostly due to a deadlock in the provincial parliament.  In order for anything to be passed, there was a “double majority” required, meaning that two delegations, from the western and eastern parts of the province, needed to come to some sort of agreement.  As the westerners were English and the easterners were French, such agreements were rare. As a result, not very much was actually accomplished and the provincial parliament was largely ineffective.

The leader of the Province of Canada, John A. MacDonald, during his brief moments of sobriety (more on this next week), decided that he needed allies.  This led to him joining forces with two other party leaders in order to win enough support from both factions within the provincial parliament to actually pass legislation².  MacDonald realized that this was a temporary solution to a continuing problem, so he did what any self-respecting lawyer would do in such a situation.  He crashed a party.

Imagine a situation in which three mild-mannered roommates gather in the basement suite that they share to play a friendly game of poker, and their upstairs neigbour invites himself over to join them.  The roommates agree, as the neighbour has a really nice set of poker chips.  They soon find out that he is also rather overbearing and has started to change their friendly game into a situation where he is making all of the rules, and they don't really have all that much input into the game.

If you can picture this, you might well be able to imagine what it was like to be a fly on the wall during the Charlottetown Conference in 1864.  Originally, the Atlantic Provinces of Prince Edward Island, Nova Scotia, and New Brunswick had decided to meet in order to discuss their unification³.  John A. MacDonald (more on him next week), leading the Province of Canada at the time, basically crashed the party and started running the show.

The end result was that an entity unifying the Atlantic Provinces with the Province of Canada was struck.  Conditions included, representation by population, which gave a large amount of power to the Province of Canada.  It also gave more power to MacDonald, as the addition of the English-speaking Atlantic Provinces meant that deadlock was no longer an issue when dealing with the French⁴.

One might wonder how MacDonald was able to sell this idea to the Atlantic representatives.  The answer was outright bribery, which the unified country would eventually find out to be another bad habit of MacDonald’s.  He agreed to build a railway⁵, to assume provincial debt, and to dole out revenues of the new entity based on population⁶.

While we might like to imagine that “asking nicely” was all that was required for the Dominion of Canada to be formed, and while this is mostly true when considering Great Britain itself, it is important to recognize the negotiation, compromise, and even bribery required to bring everyone to the table on this side of the pond.  Unfortunately, no minutes of the Charlottetown Conference are known to have survived, so much of what we are left with are accounts of some of the delegates and the results themselves.

 

Respectfully Submitted,
The Dominion

 

¹3 & 4 Victoria c 35.
²Peter B Waite, The Life and Times of Confederation, 1864–1867, (Toronto: University of Toronto Press, 1962) at 42 [Waite].
³Ibid at 56.
⁴JMS Careless, Canada: A Story of Challenge. (Cambridge: Cambridge University Press, 2012) at 233.
⁵Richard Gwyn, John A: The Man Who Made Us, (Random House Digital Inc, 2008) at 307.
⁶Waite, supra note 2 at 81.

Law and Social Media - Meet the Team - Leri Koornhof

Dear Sir/Madam:

 

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

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

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

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

 

Your Humble Servants,

The Dominion

 

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

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

A (veiled) hint at the future of Canadian corporate law jurisprudence?

Please check out my case comment on the SCC's recent decision in Chevron Corp. v. Yaiguaje in the Canadian Business Law Journal - you can read the decision here and the comment here. The Court's decision is primarily concerned with affirming and clarifying a liberal approach to the recognition and enforcement of foreign judgments pursuant to an equally liberal conceptualization of comity. But the Court's decision also offers an intriguing (if veiled) hint at the near future of Canadian corporate law jurisprudence, including the possibility of recognizing the principle of enterprise liability in respect of close corporate groups.

TBT - Last week!

This throwback Thursday will not regress too far into the past. For those who missed it - On September 8th, two candidates of the Edmonton-Strathcona district attended a debate at the Faculty of Law building. Liberal Candidate, Eleanor Olszewski QC, and NDP Candidate, Linda Duncan, provided their position on several questions which are key to the federal election. We previously posted a summary of the debate, but if you’d like to watch the full video check it out below!

 

 

Closing Remarks from the Strathcona Candidate Debate

On September 9, 2015, Strathcona candidates Linda Duncan (NDP MP) and Eleanor Olszewski (Liberal candidate) debated legal issues which are central to the upcoming federal election. Closing remarks were omitted from the debate, but the candidates were pleased to provide closing remarks for Ms. Magna Carta’s blog. Please see below, and check back tomorrow for a link to the debate video!

 

Linda Duncan

"We have witnessed a decade of Conservative regressive measures changing the face of Canada, marring our international reputation, diminishing our Charter rights, showing disregard for the rule of law and the judiciary, eviscerating our once strong environmental protection regime, and abrogating Treaty rights. It is time for a change in governance to restore our basic democratic rights beginning with an elections process that supports the right to vote and reflects all preferences through proportional representation.  Canadians are calling for a genuinely balanced and diversified economy, one that restores open transparent decision making and restores the balance between development and environment. My twice tabled Environmental Bill of Rights would enshrine those rights and duties. We need a government that honours the UNDRIP and delivers on a respectful nation to nation relationship with indigenous Canadians. We must restore our once lauded international reputation and uphold our obligations and commitments to human rights and environment, including missing and murdered indigenous women and the plight of refugees. This is your time and your choice. I encourage you to play your part in helping to deliver better governance.”

 

Eleanor Olszewski

“Thank you for inviting me to this debate in celebration of democracy's birth certificate – the Magna Carta. With the election a little over a month away, it is an optimum time to reflect upon the foundations of our government and the values that make us Canadian. I believe that Canadians' faith in government has never been lower – that unprecedented power has been concentrated in the hands of the Prime Minister and his office and that our government operates in a culture of secrecy, control, and hyper-partisanship. I also believe that a Liberal government, under Justin Trudeau, will bring about the sweeping changes that we need in order restore a sense of trust in our democracy.

This includes enhanced access to government information, restoring relevance to Question Period, electoral reform, and an end to the "first past the post" voting system, the unmuzzling of government scientists, return of the long form census, an equal number of men and women in Cabinet, and the formation of a Youth Advisory Counsel so that young people can provide advice to the PM on issues that concern them. These proposals form part of the Liberal plan for a fair and open government.

We have many challenges ahead of us – from the threat of climate change to the Syrian refugee crisis; from missing and murdered Aboriginal women to affordable housing. We can make better decisions with a fair and open government that reflects the values and expectations of Canadians. And in so doing, we can remain true to the living document that is the Magna Carta.”

Nobel in Economics

The Nobel prize in economics was awarded to French economist Jean Tirole. I could says lots about him since he has produced so much work in the field of competition and regulation but (as usual) Tyler Cowen already has explained it all.

Uber and Stuff

The Uber phenomenon is having its ups and downs. The WSJ explains why Uber and schools have much in common.

Speaking of state control, it seems the Swiss rejected a national healthcare system

Good or Bad?

If a liquidation store is liquidated, what does that say about the state of the economy?

SCC on Credit Cards

The Supreme Court released three decisions on federalism last week. Quite complicated stuff involving class actions and the interplay between provincial and federal regulations. That being said, the three cases, Amex v. Adams, BMO v. Marcotte, and Marcotte v. Fédération des caisses Desjardins du Québec,can be distilled into the following:

Credit card issuing banks don't comply with provincial consumer protection act, and small customer (via a class) sues big bank. Guess who wins? Yup, if the Supremes can make the small customer win without disturbing existing federalism jurisprudence, then such is the outcome.

So elementary that a first year law student could have answered this. 

Subprime Car Loans

Here is the conundrum: poor people with bad credit scores will not qualify for car loans. But if you can immediately seize the car on default, that makes the cost of lending to poor people cheaper, and hence more likely to happen. Trouble is people with bad credit scores may have those low scores for a reason, ie they are not regular in their payments.

This means that their vehicles are more likely to be seized often. It turns out that lenders are now fitting the vehicles with GPS and remote shutoff switches. It means that upon default, the car will not start until repayment of outstanding amounts are made. It also means more people are getting car loans. But there is a glitch, and it may violate secured loan laws.

CRTC Follies

How can anyone with a straight face think that the CRTC serves the public interest, unless public interest means protectionism and keeping Canada immune from technological progress? Its assault on Netflix is the latest in the CRTC's blatant disregard for any sense of economic efficiency and a total embracement of economic protectionism. Sadly, it is Canada that ends up suffering. This may explain why we have some of the slowest internet speeds in the developed world. It is also why we can never get to watch the latest programming. 

Housing Costs

Anytime you see a city that has expensive housing, one needs only to look for some regulation that keeps them so:

 

Hugo Chavez and AB

What do Alberta and Colombia have in common? They have both, as this Economist article points out, benefitted from the exodus of highly skilled oil workers from Venezuala post-Chavez:

IN 2003 Venezuela’s then president, Hugo Chávez, fired more than 18,000 employees, almost half the workforce, of the state-run oil corporation, Petróleos de Venezuela (PDVSA). Their offence was to have taken part in a strike (pictured) called in protest at the politicisation of the company. Their punishment was to be barred from jobs not only in PDVSA itself but also in any company doing business with the oil firm. The axe fell heavily on managers and technicians: around 80% of the staff at Intevep, PDVSA’s research arm, are thought to have joined the strike. At the stroke of a pen, Venezuela lost its oil intelligentsia.

...

Many headed to Alberta, in Canada, where the tar sands yield a residue that is similar to the heavy oil from the Orinoco belt, which Venezuela is struggling to develop. There were 465 Venezuelans in Alberta in 2001; by 2011 there were 3,860. 

Read the rest of the article here.

Economic Development and Future Generations: Only an Aboriginal Concern?

On June 26, 2014, the Supreme Court of Canada made history by recognizing for the first time a claim for Aboriginal title (Tsilhqot’in Nation v. British Columbia). Having done so, the Court went on to set conditions on what Aboriginal title-holders can do with their land. These conditions include the requirement that the land cannot be “encumbered in ways that would prevent future generations of the group from using and enjoying it.  Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land.”(Para 74) Whether a particular land use is consistent with this requirement was left to be determined on a case by case basis, although permanent changes and “modern” uses are not necessarily precluded. Later in her reasons, Chief Justice McLachlin states that use of Aboriginal title land “cannot destroy the ability of the land to sustain future generations of Aboriginal peoples” (para 121).

The Court then went on to discuss when infringements of Aboriginal title would be justified. The list of activities that could constitute justifiable infringements, quoted from the Court’s prior decision in Delgamuukw, includes “development of agriculture, forestry, mining, and hydroelectric power” and “the general economic development of the interior of British Columbia” (para 83). The only express mention of future generations is in relation to the Crown’s fiduciary duty to Aboriginal Peoples.

Similarly, in Grassy Narrows First Nation v. Ontario (Natural Resources), released two weeks after Tsilhqot’in, the right of the Government of Ontario to take up lands within Ojibway traditional hunting and fishing territory for settlement, mining and logging is subject to obligations regarding treaty rights and to accommodate “if appropriate” First Nations’ interests, but there is no mention of Ontario’s responsibilities to future generations of Ontarians.

The broader question of moral obligations owed to future generations with respect to land use and natural resource development was not, of course, directly before the Court in either case. But it cannot be that the obligation to authorize land use or development of natural resources in a manner consistent with the interests of future generations is an obligation owed only by First Nations governments to future generations of Aboriginal peoples and only with respect to Aboriginal title lands. On what principled basis could such a distinction rest? Surely this is an obligation owed by all levels of government in Canada to future generations of Canadians as a whole.