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Call to Action #86: Fake News & the Mainstream Media

 

(Illustration by Luke Swinson via Waubgeshig Rice, “Letter to a Young Indigenous Journalist | The Walrus”, (31 August 2020), online: The Walrus <https://thewalrus.ca/terra-cognita-letter-to-a-young-indigenous-journalist/>)

 

Tansi Nîtôtemtik,

Today we will discuss the history of media bias in reporting on Indigenous issues and events, and evaluate Call to Action #86, which states:

We call upon Canadian journalism programs and media schools to require education for all students on the history of Aboriginal peoples, including the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations^[1]

In drafting this post, we had originally compiled some headlines to display the difference in media coverage on news involving Indigenous people and news involving non-Indigenous people.  Ultimately, we decided that this approach was harmful and painful, and would only contribute to the problem that Call #86 hopes to address.

A media spin to grab attention or redirect the focus of a story is a common tactic, from the most obvious clickbait to more subtle exploitive or erasive coverage.  Prior research has referred to this type of coverage as “shallows and rapids”.^[2]  ‘Shallows’ are when, under normal circumstances, the mainstream media essentially ignores any coverage of Indigenous issues.^[3]  ‘Rapids’ occur when the news hones in on either crisis or calamity, such as the classic portrayal of protesters as insurgents during land or rights disputes.^[4]

Dominant media discourse on Indigenous issues and events is wholly colonized and perpetuates harmful stereotypes.  A fabulous analysis of racism in Canadian media can be found in the book Seeing Red: A History of Natives in Canadian Newspapers by Mark Cronlund Anderson and Carmen L. Robertson, which chronicles Indigenous media coverage from the time of confederation up until 2009.  An updated version of this book is slated for release this year.^[5]

This harmful discourse has long been flagged as problematic and in addition to the TRC. The Royal Commission on Aboriginal People and the Report on Missing and Murdered Indigenous Women and Girls have also called for more balanced representation in media, and for decolonized coverage that avoids perpetuating stereotypes.^[6]

So, how have journalism schools responded?

In 2017, J-Source sent a survey to 21 journalism programs at 19 universities across Canada, and received responses from 17 schools.^[7]  What they discovered is that schools want to teach Indigenous topics in a meaningful way that teaches students to engage and report on these topics sensitively and with accuracy. The results of this desire however, are tempered by available financial and staffing resources.^[8]  The TRC does not specify the format of required education called for in Call #86, and interpretation of the Call has varied across institutions. While UBC has included mandatory courses in its program even prior to the release of the TRC's final report. Other programs have chosen to develop elective courses and make them broadly available as with Ryerson’s online course on reporting in Indigenous communities.^[9]

Additionally, Journalists for Human Rights developed the Indigenous Reporters Program in 2014.  This program creates pathways for Indigenous people to pursue careers in journalism, and engages and trains non-Indigenous journalists on best practices for reporting Indigenous stories and including Indigenous voices in general reporting.^[10]

Overall, it does appear that journalism programs across Canada have made at least some effort to incorporate Indigenous topics.  However, unless these courses are made mandatory and full length/full credit, there is a risk that they will a) not be taken as seriously as other required learning, and b) that people can simply elect not to engage with this learning. 

Team ReconciliAction recognizes the effort to respond to the bias in media at the educational level, however, elective courses will only engage those already interested in learning about Indigenous history and issues.  To achieve the highest grade, this learning should be mandatory for anyone pursuing a career in media.  As a result, we assign a grade of ‘B’ to Canadian journalism and media programs.

Until Next Time,

ReconciliAction YEG

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[1] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 296.

[2] Augie Fleras, The Media Gaze: Representations of Diversities in Canada (University of British Columbia Press, 2012) at 61–62.

[3] Ibid.

[4] Ibid.

[5] Mark Cronlund Anderson & Carmen L Robertson, Seeing Red: A History of Natives in Canadian Newspapers (Univ. of Manitoba Press, 2011); Shelby Lisk, “Rewriting journalism: How Canadian media reinforces Indigenous stereotypes”, (3 September 2020), online: TVO.org <https://www.tvo.org/article/rewriting-journalism-how-canadian-media-reinforces-indigenous-stereotypes>.

[6] Canada, Royal Commission on Aboriginal Peoples, Report, 2:614; TRC, supra note 1 at 296; The National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (Quebec, 2019).

[7] Meagan Gillmore, “Long journey of reconciliation ahead at Canada’s journalism schools”, (20 April 2018), online: JSource <https://j-source.ca/article/long-journey-of-reconciliation/>.

[8] Ibid.

[9] Ibid.

[10] “Indigenous Reporters Program”, online: Journalists for Human Rights (JHR) <https://jhr.ca/our-work/canada-indigenous-reporters-program>.

5 Years After TRC: The Gaps in Public Memory

(Image: Shutterstock)

Tansi Nîtôtemtik,

Public memory is how we frame history and share knowledge of the past through generations. It is not merely history, because memories are subjective, personal and can take on or create meaning. History, though, is just factual and objective past events.   Public memory has been the subject of the Mandela effect, which is an interesting phenomena where the collective memory is not aligned with factual history.  Examples of this include public recollection of Nelson Mandela’s death in prison in the 1980s when he actually died in 2013; or remembering the children’s book series spelled as ‘Berenstein Bears’ instead of the correct Berenstain Bears.

Often, history is deliberately framed in a way that influences or selectively erases the public memory of that history.  For example, Martin Luther King, Jr.’s “I have a dream” speech has been widely emphasized and recontextualized in a way that uncomplicates and de-radicalizes the complexity of the civil rights movement of the 60’s in the US.^[1]  Public memory leans on the non-violent protest methods advocated by MLK in a revisionist manner and regularly omits that non-violence did not mean inaction.^[2]  Rather, King advocated collective civil disobedience as a form of gaining the power needed to make real change.  Likewise, public memory remembers Rosa Parks as the unassuming woman who refused to sit where she was told, when Parks could more accurately be described as a strong and seasoned freedom fighter who devoted much of her life to civil rights activism.^[3]

“Public memory is important. It is especially important to recognize that the transmission of that collective memory from generation to generation of First Nations, Inuit, and Métis individuals, families, and communities was impaired by the actions of those who ran residential schools”^[4]

This type of revisionist rhetoric is prevalent where colonial patriotism is a dominant cultural perspective.  In Canada, generations of us were taught that Canada came into existence when European settlers migrated here and built undiscovered land into a nation.  Of course, the history of this land extends well beyond its colonization.  The original inhabitants of this land have a history dating back to time immemorial.  This history includes events and places of great importance.  It includes languages, ceremony, battle, treaties, famous people and famous places. This history also extends into the post-colonial era, including the birth and rise of the Metis/Michif people as a distinct nation, and the resulting moves by the colonial government to extinguish and disenfranchise the Metis. It includes First Nations and Inuit as targets for annihilation by colonizers who viewed themselves as superior. First through the deliberate segregation and starvation of Indigenous people, then through the abduction of Indigenous children placed in residential schools and who were lucky to survive at all, let alone with intact public memory of time immemorial.

Public memory is preserved through oral and archival history, public speeches, monuments, museums, and commemorative events.  Until recently, public memory has been viciously skewed to the colonial perspective of history.  Call to Action #79 aims to remedy this skewed public memory, by including other perspectives on the history of this land to develop a more fulsome and true to history version of the collective memory going forward.

Call #79 demands collaboration with Indigenous voices to develop a framework for heritage and commemoration which includes at minimum:

• Amending the Historic Sites and Monuments Act to include First Nations, Inuit, and Métis representation on the Historic Sites and Monuments Board of Canada and its Secretariat.
• Revising the policies, criteria, and practices of the National Program of Historical Commemoration to integrate Indigenous history, heritage values, and memory practices into Canada’s national heritage and history.
• Developing and implementing a national heritage plan and strategy for commemorating residential school sites, the history and legacy of residential schools, and the contributions of Aboriginal peoples to Canada’s history.^[5]

To date, the first leg of this call has been proposed via Bill 374, An Act to Amend the Historic Sites and Monuments Act (Composition of the board). While this amendment has never come into force, the spirit of it was noted with the appointment of a First Nations, Inuk, and Metis member in July of 2018.  The last activity on this bill was in 2018, and it appears to have died after that.  Legislation guaranteeing this board composition is critical to ensuring the long term impact and inclusion of Indigenous voices.^[6]  The third leg has been delegated to Parks Canada, which did develop a framework for a national heritage plan that was backed by federal funding in 2019.^[7] 

The second leg is not yet completed.  While the importance of commemoration and heritage recognition that integrates Indigenous values has been acknowledged, this has not been codified.  Part of reconciliation may involve acceptance that commemoration activity may not align with the colonial heritage perspectives that focus on preservation.  For example, while several former residential schools have been reclaimed as heritage sites, the Île-à-la-Crosse Residential School was demolished in 2016 as part of a commemoration ceremony.^[8]

In the end, Canada has not yet done enough to ensure the development of a more honest public memory, and we must assign a grade of ‘C-‘ on Call to Action #79.

 

Until Next Time,

ReconciliAction YEG

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[1] Matthew Houdek & Kendall R Phillips, “Public Memory” (2017) Oxford Research Encyclopedia of Communication, online: <https://oxfordre.com/communication/view/10.1093/acrefore/9780190228613.001.0001/acrefore-9780190228613-e-181>.

[2] April Reign, “For Martin Luther King Jr., Nonviolent Protest Never Meant ‘Wait and See’”, (12 January 2018), online: History Reads <https://www.history.com/news/for-martin-luther-king-jr-nonviolent-protest-never-meant-wait-and-see>.

[3] Jeanne Theoharis, “How history got the Rosa Parks story wrong”, Washington Post (1 December 2015), online: <https://www.washingtonpost.com/posteverything/wp/2015/12/01/how-history-got-the-rosa-parks-story-wrong/>.

[4] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 268.

[5] Ibid at 291.

[6] Historic Sites and Monuments Act, R.S.C., 1985, c. H-4, https://laws-lois.justice.gc.ca/eng/acts/H-4/Full Text.html,

[7] Government of Canada; Indigenous and Northern Affairs Canada, “Commemoration”, (23 April 2018), online: <https://www.rcaanc-cirnac.gc.ca/eng/1524505403680/1557513866487>.

[8] CBC News, “The state of Canada’s former residential school buildings”, (26 September 2017), online: CBC News <https://www.cbc.ca/news/politics/multimedia/the-state-of-canada-s-former-residential-school-buildings-1.4307508>.

Justice for Colten: Advocacy Against Systemic Racism in Canada's Legal System

(Artwork by Grace Berrios, Colton Boushie Quote Card for Rise Up Media) 

Tansi Nîtôtemtik,

February 9 was the anniversary of Gerald Stanley’s acquittal.  For those who aren’t aware, Gerald Stanley was accused of killing Colten Boushie after Colten and some friends drove onto his rural Saskatchewan property.  Gerald Stanley was not convicted of this killing, despite the fact that Colten was killed by a close range gunshot in front of his friends and the son of Gerald Stanley.  Colten’s friends said they drove onto the property for help with a flat tire, and Gerald Stanley claimed that he approached the vehicle with his gun when he suspected the group of trying to steal an ATV, and the gun ‘hang fired’ into the back of Colten’s head.[1]

When reflecting on the news and social media reports of Colten’s death in 2016, it is striking to recall the vitriol of people who justified shooting and killing trespassers and who leaned on racism to support that justification.  Comments like “the only mistake was leaving 3 witnesses” (made by a SK municipal councillor) were pervasive, and people seemed quick to point fingers at the four friends while supporting the actions of Gerald Stanley.[2]  The RCMP and trial followed this pattern.  The investigation focused heavily on the 4 young occupants of the vehicle, and Colten’s friends were even arrested along with Gerald Stanley.[3]  Colten’s family members have stated that throughout the proceedings, it often felt like Colten was on trial and that Gerald Stanley was being treated as the victim.[4]  In fact, media publications would refer to the trial as the “Colten Boushie trial”, when it was Gerald Stanley who was on trial.  

There were other issues with the investigation and trial process.  The investigator in such a major incident was an inexperienced junior officer.[5]  The crime scene was left uncovered in the rain for two days and was not attended by any forensic expert.[6]  Colten’s mother was informed of his death by the RCMP as they searched her home, weapons drawn.  She was told to “get it together” and asked if she was drunk.[7]  During jury selection peremptory challenges excluded any juror who appeared Indigenous, and the selected jurors were not asked about possible racial bias or pre-trial public influence impacting their ability to remain objective.[8]  During the trial, the prior criminal records of the witnesses were discussed to discredit the victim and his friends.[9]  The trial judge did not inform the jury about the requirements of self defence or defence of property, which Gerald Stanley was not formally pleading but was clearly relying on.[10]

In the end, Gerald Stanley was acquitted, and Colten’s loved ones are left seeking justice.  The Saskatchewan crown prosecutors declined to appeal the acquittal stating there was no error in law, ending the proceedings that might have brought closure to Colten’s loved ones.

The verdict was controversially denounced by Prime Minister Justin Trudeau and then Justice Minister Jody-Wilson Raybould and sparked an omnibus bill that abolished peremptory challenges.[11]  This legacy is just one of the many Colten has inspired.  Colten’s family used their grief to fuel incredible advocacy for the way Indigenous people are treated by the legal system.  This advocacy has taken them all the way to the United Nations to seek justice for Colten.[12]  Team ReconciliAction encourages our readers who have not yet seen the award-winning film nîpawistamâsowin: We Will Stand Up by Tasha Hubbard to watch this powerful telling of Colten’s story and the advocacy and work his family has done.[13]  

(Image: Tasha Hubbard, nîpawistamâsowin: We Will Stand Up (2019).)

In the meantime, we ask our readers to consider the first time they heard about Colten and recall the context in which the story was presented.  Was there any bias?  Do you think the story might have been told differently if the farmer was Indigenous and the car full of youth were white? Do you think bias seeps into our legal system in a way that makes it a system of justice for only some of the people who come into contact with it?  We talk a lot about the overrepresentation of Indigenous people in the legal system, and the lack of representation in the legal profession, but what happens when an Indigenous person is the victim of a crime? How is our system set up to properly care for victims and their families?

For today, we will leave you with those questions to ponder.

#JusticeForColten

Until Next Time,

ReconciliAction YEG

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[1] David Giles & Nathaniel Dove, “Calls grow for public inquiry into death of Colten Boushie, acquittal of Gerald Stanley”, (19 February 2020), online: Global News <https://globalnews.ca/news/6566640/public-inquiry-colten-boushie-gerald-stanley/>.

[2] Ian Austen, “A Murder Trial Stirs Emotions About Canada’s Relations With Indigenous Population”, The New York Times (9 February 2018), online: <https://www.nytimes.com/2018/02/09/world/canada/canada-saskatchewan-murder-indigenous.html>.

[3] Ibid.

[4] Rachel Giese, “Why Has Colten Boushie’s Mother Had To Work So Hard Just To Prove Her Son’s Humanity?”, (20 February 2018), online: Chatelaine <https://www.chatelaine.com/opinion/colten-boushie-mother/>.

[5] Jason Warick, “The long list of problems Colten Boushie’s family says marred the case”, (13 February 2018), online: CBC News <https://www.cbc.ca/news/canada/saskatoon/colten-boushie-family-list-problems-gerald-stanley-case-1.4532214>.

[6] Ibid.

[7] Rachel Giese, supra note 4.

[8] Jason Warick, supra note 5.

[9] Ian Austen, supra note 2.

[10] David Giles & Nathaniel Dove, supra note 1.

[11] Kent Roach, “Gerald Stanley and Colten Boushie Case”, (10 February 2020), online: The Canadian Encyclopedia <https://www.thecanadianencyclopedia.ca/en/article/gerald-stanley-and-colten-boushie-case>.

[12] Tasha Hubbard, nîpawistamâsowin: We Will Stand Up (2019).

[13] Ibid.

Will We All Be Alive for #Canada300?

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

⁶Ibid.

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

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

We Will Wait Our Turn, Just Not For Too Long

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

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

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

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

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

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

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

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

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

 

 

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

² Ibid.

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

Zombie Law Apocalypse

Studying the British North America Act involves research into history: the foundations of the Dominion of Canada, the social and political factors that drove or opposed Confederation, and the laws that shaped our current jurisprudence and legislation. For this final week blogging as the Dominion 2017, each writer takes a turn looking to the future.

Pop culture has a mild obsession with fantastical zombie apocalypse theories like in the film World War Z and the television series The Walking Dead. Today we exploit this wordplay to write about Canada’s zombie laws.

Today’s post doesn’t predict a zombie apocalypse. Instead, it celebrates the impending doom of so-called zombie laws in the Criminal Code.[1]

Several “undead” laws remain “on the books”—in the Criminal Code—until Parliament amends or repeals them. Zombie laws are effectively null. If a court imposes a conviction under such laws, the defendant will likely succeed on appealing that conviction. Most zombie laws have been struck down by the courts for failing to comply with the Constitution.[2] Others are simply out of date with contemporary customs.[3]

Zombie laws usually don't do anything but sit on the books and make law students chuckle. So, what’s the harm of leaving them written in the code? It’s simply misleading; it can confuse the justice process. The government should clearly express what is an is not a law so that individuals are aware. Without the benefit of a legal education to sort through case law, many people may be unaware of laws that have been struck down.

Legal scholars across Canada renewed their demands on parliament to repeal zombie laws after the apocalyptic fallout when a judge used such a law. As we wrote in September, Court of Queen’s Bench Justice Denny Thomas convicted Travis Vader using a charge that has been struck down by the Supreme Court of Canada (SCC). Justice Thomas subsequently corrected that error and convicted Vader with manslaughter. This correction precluded Vader’s lawyers from appealing the conviction on the grounds that it fell under an unconstitutional provision.

A parliamentary democracy gives lawmakers parliamentary supremacy. Parliament can enact or repeal any law it wishes by passing a bill through the House of Commons. However, the Constitution supersedes all other legislation. In 1982 the constitutional supremacy clause was introduced.[4] It assures that all Canadian legislation is consistent with the constitutional provisions. When courts interpret legislation, they have the power to strike down a law and render it “of no force or effect” to the extent that it is inconsistent with the Constitution; including the Charter of Rights and Freedoms.[5]

The Charter also took effect in 1982 and, being part of the Constitution, holds the same status as supreme law. Several laws—among those listed below—that were enacted before 1982 have subsequently been rendered unconstitutional.

To bring the Criminal Code text in line with jurisprudence and contemporary social values, Parliament has announced that it will repeal (hopefully all) the zombie laws.[6] Eliminating uncertainty and vagueness in the Criminal Code will prevent potential future apocalyptic zombie justice system.

List of Undead Offenders:

• s. 71: Challenging someone or accepting a challenge to fight in a duel.[7]
• s. 159: Anal intercourse for people under 18 years; anal intercourse in groups.[8]
• s. 163(1, 7): Publishing crime comics.[9]
• s. 163(2)(d): Advertising drugs that “are a method for restoring sexual virility or curing venereal diseases.”[10]
• s. 179: Vagrancy.[11]
• s. 181: Spreading false news.[12]
• s. 230: Murder in commission of offences.[13]
• s. 250(1, 2): Water-skiing at night; water skiing without a spotter.[14]
• s. 287: Abortion.[15]
• s. 296: Publishing blasphemous libel.
• s. 365: Fraudulently pretending to practice witchcraft, sorcery, enchantment, or conjuration; or tell fortunes.[16]
• s. 427(1): Issuing trading stamps.[17]

 

[1] RSC 1985, c-46.

[2] Constitution Act, 1982, s 52, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution].

[3] Tu Thanh Ha, “These Seven Archaic ‘Zombie Laws’ still Exist in the Criminal Code,” The Globe and Mail (8 March 2017), online: <www.theglobeandmail.com/news/national/these-zombie-laws-in-the-criminal-code-could-still-have-you-arrested/article34246168/>.

[4] Constitution, supra note 2, s 52.

[5] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[5] Kathleen Harris, “Federal Government to Axe 'Zombie Laws' from Canada's Criminal Code,” CBC News (7 March 2017), online: <www.cbc.ca/news/politics/criminal-code-reform-zombie-laws-1.4013869>; Brent Rathgeber, “The Criminal Code is in Dire Need of Housecleaning: Trudeau Needs to Pick Up where Harper Failed to Act,” iPolitics (22 September 2016), online: iPolitics.com <www.ipolitics.ca/2016/09/22/the-criminal-code-is-in-dire-need-of-housecleaning/>.

[6] Harris, ibid.

[3] Ha, supra note 2.

[8] R v M(C), 23 OR (3d) 629, 82 OAC 68; R v Roth, 2002 ABQB 145, 306 AR 387.

[9] R v Butler, [1992] 1 SCR 452, 89 DLR (4th) 449.

[10] Ha, supra note 3.

[11] R v Heywood, [1994] 3 SCR 761, 120 DLR (4th) 348.

[12] R v Zundel, [1992] 2 SCR 731, 56 OAC 161.

[13] R v Vaillancourt, [1987] 2 SCR 636, 68 Nfld & PEIR 281; R v Martineau, [1990] 2 S.C.R. 633, 76 Alta LR (2d) 1.

[14] R v Gatt, 1992 CanLII 1105 (BC SC).

[15] R v Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385.

[16] Ha, supra note 3.

[17] Ibid.

Entering the Dragon's Den

 

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

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

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

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

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

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

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

 

 

 

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

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

³ Ibid.

⁴ Ibid.

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

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

⁷ Ibid.

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

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

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

 

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

[6] Mockingbird, supra note 3.

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.

 

You Can’t Handle The Truth!

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

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

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

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

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

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

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

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

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

 

 

 

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

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

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

³ Ibid.

⁴ Ibid.

⁵ Ibid.

⁶ Ibid.

⁷ Ibid.

⁸ Ibid.

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

¹⁰ Ibid.

Are You or Have You Ever Been a Mutant?

This week, The Dominion writers demonstrate their nerdy tendencies by discussing fictional legal scenarios. Check back daily to see if your favourite fictional legal case is featured!

Last year, the blockbuster film Captain America: Civil War featured a plan to force super heroes to register with the government. Comics have used this kind of storyline for decades. But would such a legislative scheme be valid in the real world?

The first attempt to register super heroes in the Marvel Universe was the Mutant Registration Act [MRA] (also called the Mutant Control Act). This was first mentioned in the “Days of Future Past” story, in which genocidal, mutant hunting Sentinels controlled a dark future.[1] After the legislation passed a special government strike team called Freedom Force enforced it. Ironically, Freedom Force was comprised of former super criminals who had tried to assassinate the Senator who first proposed the legislation.[2] There were protests against the legislation and at some point it was either repealed or no longer enforced.[3]

This legislation is unlikely to be enforced in Canada. The Charter of Rights and Freedoms guarantees protection against discrimination based on identifiable characteristics in section 15.[4] The courts have expanded the categories that are protected by the Charter using the concept of “analogous grounds” to include things not originally enumerated, such as sexual orientation.[5] Of course, when the analogous ground includes people with the ability to read minds, control the weather, and shoot force blasts from their eyes, it is possible that a violation could be allowed using the reasonable limits clause in s. 1 of the Charter.[6] These powers can make those who possess them extremely dangerous to others. The argument is that the state has a great responsibility to keep control of those with great power.

The second version of registration was very different. Rather than lumping in everyone with the “X-gene”, with powers ranging from “control over the fabric of reality” all the way down to “covered in extra eyeballs”, the Super Hero Registration Act [SHRA] only registered individuals, no matter the source of their powers, who intended to use them. This included many mutants, but also nuclear accident victims and genius engineers.[7] One mutant hero, Firestar, would have had no choice but to register under the MRA. But under the SHRA she was allowed to retire; choosing to refrain from using her powers.[8] The act was eventually repealed at the request of Captain America.[9]

The SHRA is more likely than the MRA to stand in Canada. In fact, Marvel Universe’s Canada has similar legislation, but it did not cause the problems that it did south of the border.[10] When the dust cleared after Civil War, Iron Man ended up in charge of SHIELD, the agency charged with administering the SHRA. He used his new authority to ensure that heroes were properly trained and spread into teams throughout the United States. This project was called the Fifty States Initiative.[11]

Iron Man and the other experienced heroes were responsible for training the next generation, deciding their qualifications, and, when necessary, policing their actions. The Initiative essentially turned being a super hero into a self-regulating profession, not unlike lawyer self-regulation in the real world.[12] The potential constitutional issues would come not from Charter rights, but rather from the BNA Act itself. Self-regulating professions and other licenses are a provincial responsibility.[13] With that said, in a world with super powers it is likely that courts would allow the federal government to legislate on the matter instead of the provinces. Much like pollution and interprovincial trade, it be a problem too large for the provinces to properly handle.[14]

Comic book writers and filmmakers are not experts in constitutional law. Sometimes, a slow burning sub plot would be a much more dramatic event in the real world. Other times, the summer blockbuster event in the comics would be a completely sensible, not particularly controversial, event in the real world. At least not by constitutional standards.

 

[1]  Chris Claremont & John Byrne, “Days of Future Past,” Uncanny X-Men 141 (January 1981). 

[2] Chris Claremont & John Romita Jr, “The Spiral Path,” Uncanny X-Men 199 (November 1985).

[3] Louise Simonson and Walter Simonson, “For All the World to See”, X-Factor 33 (October 1988).

[4] Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

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

[6] Charter, supra note 4, s 1.

[7] J Michael Straczynski & Ron Garney, “Mr Parker Goes to Washington pt 1”, Amazing Spider-Man 529 (April 2006).

[8] Paul Jenkins & Ramon Bachs, “Embedded pt 2,” Civil War Frontline 2 (August 2006).

[9] Brian Bendis & Olivier Coipel, “Siege of Asgard - The Fallen,” Siege 4 (June 2010).

[10] Michael Avon Oeming & Scott Kollins, “The Fantastic Four!”, Omega Flight 2 (May 2007).

[11] Dan Slott & Stefano Caselli, “Happy Accidents,” Avengers: The Initiative 1 (June 2007).

[12] Legal Profession Act, RSA 2000, c L-8.

[13] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(9), reprinted in RSC 1985, Appendix II, No 5.

[14] R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401, 49 DLR (4th) 161.

Law School: How Hard can it be, Anyway?

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

Women in Law

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

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

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

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

Aboriginal and Indigenous Lawyers

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

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

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

Getting In

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

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

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

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

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

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

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

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

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

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

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

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

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

It's Dolly the Sheep's Anniversary!

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

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

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

Animal Cloning

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

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

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

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

Human Cloning

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

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

Is Human Cloning Constitutional?

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

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

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

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

 

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

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

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

⁴see www.myfriendagain.com.

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

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

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

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

⁹Health Canada, supra note 7.

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

¹¹Ibid.

¹²Ibid.

¹³Ibid.

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

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

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>.

Music Monday: Throwback to 1867

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

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

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

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

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

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

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

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

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

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

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

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

⁴Ibid.

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

What to Expect from The Dominion - Winter Term 2017

Are you planning to celebrate the 150th anniversary of Canada’s Confederation? Will July 1st, 2017, be a regular Canada Day celebration for you? Or do you even celebrate Canada Day at all?

Our first week back blogging introduces the new semester and reminds readers why this project is important to us, the writers, as law students. Each week follows a different theme; Mondays’ posts introduce each one.

A year ago the Law and Social Media team wrote collectively as Ms. Suffragette to celebrate the 100th anniversary of women’s voting rights in Alberta. One week was dedicated to the Famous Five women who challenged the meaning of the word “person”. In the spirit of celebrating influential Canadian politicians, next week’s theme is Founding Fathers of Confederation.

Ever the egalitarians, later in the term we will biograph Women of Confederation. We recognize individuals who made history by working hard for what they believed in. Like suffragists who advocated and agitated for political rights, the Founding Fathers and Mothers of Confederation wanted to change the governing structure of early “Canada”.

Some of our posts, like yesterday’s, review the Centre for Constitutional Studies speaking events. The CCS regularly hosts acclaimed legal experts who make constitutional law both informative and fun.

As we wrote last semester, Confederation and the preceding decades did not establish a foundation of equality and independence for indigenous peoples living in British North America. Therefore, as we recognize Canada’s sesquicentenary, we are mindful that it can be problematic to celebrate laws that created a legacy of Indigenous oppression. Reconciliation and healing must be part of our collective future and we will explore this in light of celebrations of the birth of modern Canada as we know it. In the words of Chief Dr. Robert Joseph, “Our future, and the well-being of all our children rests with the kind of relationship we build today.”

Also last semester, we introduced the constitutional division of powers between the federal and provincial governments (sections 91 and 92 of the Constitution Act, 1867). These distinctions between duties and powers delegated to the respective levels of government pervade our legal system and case law on jurisdiction. Therefore, we will expand on it further using interesting topics like polygamy, firearms, and even a shout-out to the annual student-run Law Show in February.

The federal Department of Canadian Heritage is promoting nationwide celebration projects. For example, one of the official signature projects focuses on engaging Canadians—coast to coast to coast—in reconciliation. The University of Alberta will host some projects as well; click here to check them out.

Most Canadian cities host events sporadically throughout the year. If you’re in Edmonton (as we are) make sure you check out Ice on Whyte (we will be!). It’s coming up soon to take advantage of the cooler temperatures and features ice carving and other family-friendly activities. Although Ice on Whyte is in its 14th year, this year it also boasts activities to celebrate Canada 150.

Over the next 12 weeks, we’ll keep you posted on more fun and interesting events that help understand the reasons for the BNA Act and why its successor, the 1982 Constitution, is so fundamental to living in Canada. So stay tuned!

What do Marlon Brando, Canadian healthcare, oil & gas, and margarine have in common? This and more from section 92 of the BNA Act

Dear Sir or Madam:

Have you ever wondered why you need a new health card if you move to a different province, or why Alberta has no provincial sales tax? Or why you can only get beer in Ontario if it arrives to you on a conveyor belt? The answers to all of these questions are determined by section 92 of the BNA Act.

As we discussed before our Vader verdict detour, provincial governments have the exclusive power to make laws about certain aspects of Canadian society. Section 92 lists which areas the provinces control, and s. 91 provides the corresponding federal list. Some provincial powers include: regulating healthcare, provincial taxes, and trade within the province (alcohol and the beer conveyor fall into this category).

Last week we described the drafting challenges that the provincial delegates encountered in 1864; today, we’ll address the federal/provincial tug of war that has ensued since the BNA Act brought s. 92 into force. Which brings us to Marlon Brando, universal healthcare, oil & gas, and margarine. Though seemingly unrelated, they have all contributed to the enduring tension between sections 91 and 92.

In Nova Scotia (Board of Censors) v McNeil¹, the Nova Scotia Board of Censors banned the Marlon Brando film Last Tango in Paris.² A journalist challenged the legislation that empowered the board, arguing that the moral aspect of censorship was more closely tied to criminal law, a federal power under s. 91. If the provincial government enacts a law that is in the federal government's domain, or vice versa, a court can declare it unconstitutional. The Supreme Court of Canada held that the Board of Censors’ governing act concerned the regulation, supervision, and control of films—a form of private property—and therefore fits into the most expansive provincial power, s. 92(13), property and civil rights.³ This section includes the jurisdiction to legislate over any rights arising from a contract, and to regulate trade and industry within the province.

Health care and nonrenewable resources are two other areas under provincial control, though they are both contentious examples that demonstrate that hard-fought compromise was necessary to create Canada as we know it.

Section 92(7) grants the provinces exclusive authority to pass laws that affect the creation and administration of hospitals. Essentially, the provinces are responsible for delivering healthcare to the majority of Canadians. To create a national healthcare standard and avoid encroaching on provincial powers, the federal government’s role in healthcare is primarily financial. Under its spending power, the federal government can set conditions on disposing taxation revenue to the provinces.⁴ To receive federal funds for their insurance programs, the provinces must conform to the criteria outlined by the federal government in the Canada Health Act.⁵ The evolution of this provincial/federal compromise is complex but riveting, so stay tuned for more in later blogs.

The provincial power to pass laws on non-renewable resources (s. 92A) is another example of contentious compromise on jurisdiction. In 1980 the federal government introduced the National Energy Program, heavily taxing oil & gas revenues and causing outrage in western Canada. When the federal government sought to patriate the constitution in 1982, the resource provinces negotiated s. 92A, creating a rare addition to s. 92 in the BNA Act.

Now you are probably wondering how margarine fits into this equation. Well, we have only scratched the surface of Canada’s 91/92 tension, and for now we will tell you that margarine became entangled with the provinces’ powers over internal trade and the federal government’s powers over criminal law and inter-provincial trade and commerce. That, and more, in a later blog devoted entirely to margarine.  

Until then, your humble and obedient servants,

The Dominion

¹[1978] 2 SCR 662, 84 DLR (3d) 1.
²1972, DVD (MGM, 1973).
³Supra note 1 at 688.
⁴Canada, The Standing Senate Committee on Social Affairs, Science and Technology, Interim Report on the state of health care system in Canada: The Health of Canadians - The Federal Role (O) vol 1 at 7.
⁵RSC 1985, c C-46.

Movie Review: "Suffragette" (2015)

Director: Sarah Gavron

Released: October 2015 (UK), November 2015 (Canada)

 

Cast:

Carey Mulligan: an underpaid, abused, laundry worker; a loving wife and doting mother. Demure Maud Watts falls in with a group of suffragettes, much to her husband’s chagrin. The group takes to public civil disobedience to garner support for votes for women. Watts reluctantly appears before Chancellor of the Exchequer Court, David Lloyd George (who later became Prime Minister), where she testifies to the lower wages and more dangerous work assigned to women in the laundry.

Helena Bonham Carter: Edith Ellyn, a respected pharmacist and known militant suffragette who campaigns and “agitates” for legal reform to allow women to vote. She and her husband both served jail-time for suffrage related activities. Ellyn is the organizing force for most of the main suffragette characters.

Brendan Gleeson: Police Inspector Arthur Steed arrests, interrogates, and intimidates the women who campaign for legal reform. Reminiscent of gangland detectives in HBO’s The Wire, Steed photographs suffragettes and preys on them in hopes of turning them on their friends.

Anne-Marie Duff: Violet Miller, a fellow laundry worker, is caught between fighting for women’s voting rights and struggling to provide for her family. Considered a delinquent worker and stigmatized as an outcast, she served several prison sentences for her activism. Her young daughter also endures abuse as a laundry worker.

Ben Whishaw: Sonny Watts, husband of Maud Watts, also works in the laundry. Mr. Watts endures shame and derision from coworkers and neighbours as a result of his wife’s actions. Ultimately, he forces a life-changing sacrifice upon himself and his wife.

Meryl Streep: Emmeline Pankhurst, founder of the Women’s Suffrage and Political Union, gives  inflammatory speeches to women’s rights activists. The film has been credited for its accuracy in depicting the divide between more aggressive “suffragettes” like Pankhurst and more moderate “suffragists”, including Pankhurst’s own daughter, Sylvia.[1]

Natalie Press: Emily Wilding Davison, a well-known suffragette and confidante of Pankhurst. A seasoned veteran of the militant phase of the suffrage movement in England, she was incarcerated nine times and torturously force-fed forty-nine times.[2]

 

Suffragette is a fictional historical drama set in London, UK, in 1912-1913, which follows the main character Maud Watts as she enters the women’s suffrage movement.[3] Overall it is engaging and, at times, graphic. I’ll try not to spoil the story for you, but do note that some of the content is quite emotional. One scene in particular had me babbling like a baby. Other scenes were difficult to watch, such as the police beating women who were angrily, yet peacefully, protesting parliament’s unwillingness to reform the suffrage laws. Some of the scenes depicting suffragettes in jail were disturbing, especially when those enduring hunger strikes were force-fed through tubes plunged down their nasal passages. The hunger strikes were significant because suffragettes were not considered political prisoners. The authorities would not risk death of a prisoner by starvation as it would draw media attention to the movement.

Watts’s entry into suffrage activism was not calculated. Moreover, her testimony at the Court of Exchequer related to the working conditions at the laundry where she worked. Specifically, the “laundresses” had more difficult and dangerous tasks than their male colleagues, they worked longer hours, were paid less, and some endured sexual abuse. Initially, Watts is more focused on improving working conditions for women than she is on getting the vote, perhaps because, as her husband reminds her, getting the vote for working class women was a pipe dream. During the time that this film takes place, 1912-1913, working-class women like Watts and Miller had more obstacles preventing them from voting than just their gender.[4] The United Kingdom enfranchised women over the age of thirty who met minimum property requirements in 1918, after the second world war. However, women who did not own property eventually received the right to vote in 1928.

The three historically accurate characters in the film are David Lloyd George, Emmeline Pankhurst, and Emily Wilding Davison. Pankhurst, the famous suffragette, makes an inciteful speech in the film, which accurately depicts her life as a fugitive.[5] The film also references fracturing in the suffrage movement between militant and moderate activists, including Pankhurst’s own daughter.[6] The activism, experience, and sacrifice for the movement by Emily Wilding Davison (played by Natalie Press) is also historically accurate.[7] Spoiler alert: click here for actual footage of Davison’s extreme sacrifice to rattle lawmakers enough that they would realize the desperation of women who sought voting rights.

Overall, the film was enjoyable and engaging with a great cast. One need not be a feminist, in any sense of the word, to understand the human struggle portrayed by the characters. And speaking of "militant" suffragettes, check back tomorrow to read about women in the military.

 

[1] “Suffragette (film)”, Wikipedia (online): <https://en.wikipedia.org/wiki/Suffragette_(film)> [Wikipedia].

[2] Dr. Jennifer Frangos, “Emily Wilding Davison - Suffragette Martyr?”, University of Missouri--Kansas City Womens and Gender Studies, 28 October 2013 (online): <http://info.umkc.edu/wgs/2013/10/28/emily-wilding-davison-suffragette-and-radical/> [Frangos].

[3] Wikipedia, supra note 1.

[4] AO Scott, “Review: In ‘Suffragette’, Feminist Insight That’s About More Than the Vote”, The New York Times, 22 October 2015 (online): <http://www.nytimes.com/2015/10/23/movies/review-in-suffragette-feminist-insight-thats-about-more-than-the-vote.html?referrer=google_kp&_r=0>.

[5]  “Emmeline Pankhurst (1858 - 1928)”, BBC Historic Figures (online): <http://www.bbc.co.uk/history/historic_figures/pankhurst_emmeline.shtml>.

[6] Ibid.

[7] Frangos, supra note 2.

The Women of Star Wars

Star Wars: Episode VII - The Force Awakens, which opened on December 18, 2015, was everything that fans of the saga had hoped for. It was action-packed, caught us up on what our favorite heroes had been up to for the past 30 years, and introduced hope that balance may yet be restored in the galaxy. This hope came in the form of Rey, a young woman scavenger living on Jakku. After a chance encounter with an AWOL stormtrooper named Finn who hopes to join the Resistance against the evil First Order which he previously served, Rey becomes involved in a mission to track down the last Jedi, Luke Skywalker. Along the way Rey discovers that the Force is with her, making Rey the new hope to rise up against the First Order alongside the Resistance. On her journey she meets Han Solo, Chewbacca, some new heroes, and General Leia Organa who leads the Resistance.

This film was praised for its use of a strong female lead, who wore a functional outfit, and “whose central purpose was not to be a love interest”.[1] Throughout the movie Finn makes attempts to save Rey, only to find that she is a superior fighter and can artfully escape dire situations. In fact, it is Rey who saves Finn’s life from a rathtar (space monster). Another refreshing fact of Episode VII in comparison to the earlier Episodes is that there are multiple important roles played by women. General Leia commands the Resistance, Captain Phasma is a high-ranking stormtrooper, and Maz Kanata fills the role of a wise mentor similar to Yoda. Why is this a big deal? As explained by Jake Minton, “of all characters who spoke at least one word in the top 100 movies [in 2014], only 28% were women…. 26% of all female characters that appeared in the top movies were fully or partially nude at some point, only 9% of the guys.”[2] The statistics show that women tend to receive far less screen time than men, and that much of the screen time they do receive is for a sexual purpose, rather than to advance the storyline.  

While Rey is not the first strong female hero in a film, one fails to think of another movie franchise which has successfully replaced a traditionally male role with a female lead. For example, Star Trek: Voyager, which casted a female Captain, performed poorly compared to Star Trek’s original series (Captain Kirk), or Star Trek: the Next Generation (Captain Picard).

Perhaps the successful introduction of a female lead was fostered by the use of a strong female character in the first Star Wars film, Episode IV: A New Hope. In A New Hope, Princess Leia is not only a Diplomat but also a member of the Rebels who hope to take down the evil Galactic Empire. She takes great risk to send blueprints of the Deathstar to the Rebels, and is tortured and mind-probed by the Imperials for the whereabouts of the Rebel base. She withstands it all, talking only when the alternative is having her home planet destroyed, and still she gives false information. Leia is unimpressed by Han Solo’s efforts to woo her, although he wins her over in the subsequent Episodes.

Despite the strong role played by Leia in Episode IV, critics note that her role was reduced to being the love interest in the next two Episodes, and that Leia was the sole female to have a significant role in those movies.[3] In Episodes I - III Padmé Amidala was the female co-star who filled an important role within her planet and galaxy’s government, first as Queen of Naboo and then as Senator in the Galactic Senate. Unfortunately she was quickly shifted to a role of love interest/damsel in distress. But, due to space constraints of blogging, and the general preference of all Star Wars fans to gloss over Episodes I, II and III, that is all we will say about Padmé.

Instead of comparing Episode IV to Episode VII in order to call out the portrayal of women in the earlier film for being dismal, I find it more appropriate to consider each film in the context of the time in which it was made. To have a female not only in a position of power within government, but to also show her as competent in combat and capable of withstanding torture against Darth Vader himself, is admittedly impressive for a film released in 1977. In Episode VI (1983), Leia attempts a dangerous and brave rescue mission in hopes of saving her love, Han Solo. He does not chastise her for risking her “pretty little head” to save him, and although Leia is forced to adorn a gold bikini while enslaved by Jabba the Hutt, she ultimately kills her captor with the chains he had used to bind her.

However, despite these positive undertones in relation to the portrayal of women via Princess Leia, Episode IV does not pass the Bechdel test. The Bechdel test analyzes women’s involvement in films by asking: 1) are there two female characters with names, 2) do they speak to each other, and 3) do they talk about something other than a man?[4] Despite failing this very low threshold for meaningful women’s involvement, Princess Leia was a heroine in the inaugural film, and perhaps it was this demonstration of female competency that resulted in fanboys and fangirls everywhere embracing Rey as the lead in the newest film!    

[1]http://www.firstpost.com/living/the-feminism-is-strong-with-this-one-star-wars-the-force-awakens-reinforces-gender-balance-in-pop-culture-2568062.html

[2] http://tedxtalks.ted.com/video/Men-Children-The-Final-Frontier;search%3Afeminism

[3] Supra note 1.

[4] http://bechdeltest.com/

House of Saddam

"The Law is anything I write on a piece of paper" - Saddam Hussein, deceased, law school dropout.

HBO has a new 4-part miniseries on the life of the deceased dictator and deluded victory-monger Saddam Hussein titled "House of Saddam" (not sure if you folks out West are receiving HBO yet). Worth watching, if only to see how crazy Uday Hussein really was.