University of Alberta Faculty of Law Blog

Someday We'll Find It, The Rainbow Connection

It is important to identify that none of the contributors to The Dominion self-identify as members of the LGBT community. We recognize that, today, we are writing about things that we haven't personally experienced and that our ability to competently write on this issue is limited. We also recognize that the abbreviation “LGBT” is considered by many to be incomplete. We have chosen to err on the side of simplicity and familiarity. It is not our intent to offend. We apologize for any shortcomings that appear below.

 

One might assume that LGBT rights in Canada were worse the further one delves back into our history. This would be incorrect. While LGBT rights in 1867 were nowhere near what they are today, it's important to note that things actually got a lot worse before they got better.

In 1867, there were “buggery” laws on the books,¹ and this crime was punishable by death in British North America. As abhorrent as this is, these were inherited laws from Great Britain and officials on this side of the pond simply didn't see fit to impose the punishment. While there were many people sentenced to death for this “crime,” there are no records of this sentence being carried out. Instead, the convicted were pardoned or had their sentences commuted.

As unjust as this position was, in 1948 the Criminal Code was amended to label gay men as “criminal sexual psychopaths”, as well as to provide for indeterminate prison sentences.² In the 1950s and 1960s, a pseudoscientific device known as the “fruit machine” was employed to identify gay men.  These men were deemed to be ineligible for government jobs, including the Canadian Forces and the Royal Canadian Mounted Police.³ This signified a low point for LGBT rights in Canada.

In 1968, Minister of Justice John Turner introduced The Criminal Law Amendment Act, 1968-69, an omnibus bill that decriminalized homosexuality.⁴ His predecessor, Pierre Trudeau, who had introduced an earlier version of the Bill, famously commented that “there's no place for the state in the bedrooms of the nation”.

Of course, mere decriminalization was insufficient, and systemic discrimination against LGBT people was still a problem. It still is, but things have started to get better. The advent of the Canadian Charter of Rights and Freedoms⁵ in 1982 brought forth important protection against discrimination for segments of the population that were identified as minority groups.⁶ Sexual orientation was NOT included.

It was not until 1995⁷ that the Supreme Court of Canada “read-in” sexual orientation to s. 15 of the Charter. In 1998⁸ the Court went a step further and ensured that provincial human rights statutes needed to be interpreted as if sexual orientation was deemed to be a prohibited ground for discrimination. This was held to be so, regardless of the intention of the provincial governments when crafting their legislation. The next year, the Court ruled on the landmark case M. v. H.⁹ allowing for same sex marriage in Canada, later resulting in the federal Civil Marriage Act¹⁰ which codified this right.

While these measures have undoubtedly improved life for gay, lesbian, and bisexual people the battle for equality has just begun for those with non-traditional gender expressions and identities. An Act to Amend the Canadian Human Rights Act and the Criminal Code is currently before Parliament to add protections from discrimination on these grounds.¹¹

Legislation is not enough. The systemic discrimination that has resulted in unfair treatment to these minority groups are not going to disappear by the mere stroke of a pen. While good law is indeed necessary, it is not sufficient.

To those of our readers in law school, legal professions, politics, and others who occupy positions of power or are going to in the future, consider this a call to arms. If our country is going to keep advancing against intolerance, we need to help lead the charge. We must decide how we are to use the influence that will invariably be entrusted to us, and we must do so fearlessly.

Intolerance and hate have dominated for far too long. For what it's worth, we're choosing love. We hope that you'll join us.

 

¹ Consolidated Statutes of Canada 1859, c 91, s 22.
² RSC 1927, c 36.
³ Gary W Kinsman, Dieter K Buse & Mercedes Steedman, Whose National Security?: Canadian State Surveillance and the Creation of Enemies (Canada: Between the Lines, 2000).
⁴ SC 1968-69, c 38.
⁵ Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982, c 11 [Charter].
⁶ Ibid at s 15.
⁷ Egan v Canada, [1995] 2 SCR 513.
⁸ Vriend v Alberta, [1998] 1 SCR 493.
⁹ [1999] 2 SCR 3.
¹⁰ SC 2005, c 33.
¹¹ Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code, 1st Sess, 42nd Parl, 2016.

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/>.

Alice in Wonderland: It’s Not Just Fiction

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

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

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

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

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

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

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

^{*Edited on February 1st.} 

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

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

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

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

⁵Supra, note 2.

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

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

⁸Supra, note 6.

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

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

The Forgotten Other Cartier: a Man who Loved the Sound of his own Voice

Sir George-Étienne Cartier, son of Jacques Cartier III, grandson of Jacques Cartier II, and great-grandson of Jacques Cartier I; no relation to explorer Jacques Cartier.[1]

Montreal lawyer and politician George-Étienne Cartier was born 350 years after Jacques Cartier, the St. Lawrence River navigator and French settler. Before moving to Montreal, Sir Cartier grew up in Saint-Antoine-sur-Richelieu, a small town near Montreal where his family had lived for three generations.

As an adult, he enjoyed Montreal’s elite social scene and apparently loved the sound of his own voice. In fact, he once spoke for 13 hours in Parliament.[2] At both English and French social events, he would entertain guests by singing songs he wrote himself.

Although Sir John A. Macdonald is often hailed as the architect of Canada, Sir Cartier may have been the stronger force driving Confederation.[3] Even Macdonald is reported to have stated that Cartier, his co-premier of the Province of Canada, was the true Father of Confederation.[4]

Political and Legal Career

Cartier articled as a law student with MLA Edouard Rodier, member of the Patriote (rebel) Party, but delved into politics even before he was admitted to the Bar of Lower Canada in 1835. He worked to elect to legislature Patriote Party members Louis-Joseph Papineau and Robert Nelson; later joining them in the 1837-1839 Papineau Rebellion.[5] Cartier was charged with treason for his part in the failed rebellion and took exile in the United States. He returned after both swearing his allegiance to the Queen and when the colonial governor annulled the charges.[6] Unfortunately, he remained “a politically incorrect personage” and never shared the same level of praise in Quebec as does Jacques Cartier or in Canada as does Macdonald.[7]

Cartier nevertheless had a remarkable political career. He was elected in 1848 to the Legislative Assembly and strongly represented his constituents and French Canada.[8] He rewrote property laws, created a modern civil code, set up primary schools for Catholics and Protestants, oversaw the Hudson’s Bay Company negotiations to purchase Rupert’s Land and the North-Western Territory, and helped negotiate the creation of the province of Manitoba.[9]

Conflict of Interest

Sir John A., even with his reputation for imbibement, was perhaps a more suitable choice to embody the legacy as Canada’s Father of Confederation. Cartier further fell from favour in 1873 when he was implicated in the Pacific Scandal, a “cash-for-contracts” scheme where he accepted political donations from his railway promoter client.[10] Cartier acted as legal counsel for the Grand Trunk Railway and prevented US railways from taking over the Canadian Pacific Railway project. However, his political campaign was largely funded by this client, which received the government railway contract.[11] This ended his political career. He died later that year of a kidney illness.[12]

Confederation

Despite, or perhaps due to, Cartier’s commitment to French-Canadian nationality, Confederation was a high priority for him.[13] Confederation was a means to unite Upper and Lower Canada without assimilating the French settlers into English culture; to unite the British colonies in defence against the US; and to develop the intercolonial and pacific railways without US intervention.[14] Cartier took part in the London, Quebec, and Charlottetown Conferences to convince the Queen and other lawmakers that Confederation was the right decision. In 1867, as Macdonald became the first Prime Minister of Canada, Cartier became the first Minister of Militia and Defence and occasionally stood in for Prime Minister Macdonald when necessary.[15]

Clearly, Cartier had a voice that could not be silenced—while he lived. Whether he was singing to entertain his friends, rallying votes, or negotiating political instruments that would shape the political boundaries of the country, people listened to him. Unfortunately, his two political transgressions likely downgraded his legacy in the history books.

This lesser-known Father of Confederation wraps up this week’s posts. Next week, we’ll tell you about the Ice on Whyte festival that celebrates Canada 150. In a few more weeks, we’ll write about the Women of Confederation, including Sir Cartier’s long-time lover, Luce Cuvillier. Stay tuned!

[1] “Sir George-Étienne Cartier National Historic Site of Canada,” National Historic Sites (4 March 2014), online: Parks Canada <www.pc.gc.ca/eng/lhn-nhs/qc/etiennecartier/natcul/natcul1.aspx> [Parks Canada].

[2] “Fathers of Confederation: George-[É]tienne Cartier”, Canada: A Peoples History, CBC (2001), online: CBC <http://www.cbc.ca/history/EPCONTENTSE1EP8CH3PA2LE.html> [CBC].

[3] Ibid; Alastair Sweeny, “Confederation’s True Father? George-Étienne Cartier” (3 January 2014), online: The Globe and Mail <www.theglobeandmail.com/opinion/confederations-true-father-george-etienne-cartier/article16177890/>.

[4] Sweeny, ibid.

[5] Parks Canada, supra note 1.

[6] CBC, supra note 2.

[7] Sweeny, supra note 3. If you ever go to Montreal, you must visit Place Jacques-Cartier: www.vieux.montreal.qc.ca/tour/etape6/eng/6fena.htm. It’s beautiful.

[8] CBC, supra note 2.

[9] CBC, supra note 2; People: Sir George-Étienne Cartier, Library and Archives Canada (2 May 2005), online: Government of Canada <https://www.collectionscanada.gc.ca/confederation/023001-4000.12-e.html> [Library and Archives].

[10] Library and Archives, ibid.

[11] Sweeny, supra note 3.

[12] “Confederation: George-Étienne Cartier,” A Country by Consent, online: Canada History Project <www.canadahistoryproject.ca/1867/1867-07-ge-cartier.html>.

[13] Parks Canada, supra note 1.

[14] Sweeny, supra note 3.

[15] Parks Canada, supra note 1.

Goodbye Deirdre, Hello Allison!

We are excited to introduce our newest member of the team, Allison Numerow. She will be attempting to replace the irreplaceable Deirdre Fleming as the fifth member of the Law and Social Media team. Allison is a second-year student here at the University of Alberta Faculty of Law. As a 20-something born into the age of technology, she is eager to use social media to connect readers to topics relevant to the Constitution and to continue to develop her research and writing skills. She’s excited to join the other bloggers and bring you thought-provoking and creative posts every day!

Born and raised in Calgary, Allison left Texas of the North when she turned 18 to attend McGill University. There she achieved a Bachelor of Arts in Psychology. During her four years in Montreal, she worked in two music cognition laboratories, running experiments on willing victims… I mean students. She conducted experiments on both how babies respond to musical stimuli and dance, as well as the effects that different types of music had on neutral visual stimuli. Outside of classes Allison was a member of a pop music a cappella ensemble because she wanted her life to resemble Pitch Perfect (and still does!).

In the final year of her degree, Allison realized that her education would, of course, require more education. Hence, after graduation she found herself at U of A Law. Allison used her first year at the U of A to educate herself both on the law as well as contemporary issues in the legal world. As she soon discovered, Constitutional Law was her favourite class. Law and Social Media provides a platform for Allison to explore the Constitution and its impact on current issues, evolving case law, and other relevant topics. As a classically trained singer and Harry Potter “nerd”, she is excited to combine her interests with the Constitution. This semester, she will explore popular music from 1867, as well as the potential constitutional issues in some of the laws of the magical wizarding world, to name a few. She will also explore other important and up-and-coming topics including drones and Dolly the Sheep.

When she isn’t watching the Bachelor, Allison is busy working on her colour-by-numbers colouring book. Her friends and family say she’s too old for such hobbies, but she insists that when you have no artistic ability, creative assistance is necessary.

Could Trump be Trump in Canada?

Tomorrow, Donald J. Trump will be officially sworn in as the 45th President of the United States. Here in Canada, two of the candidates for the leadership of the Conservative Party have been described as “Canada’s Trump”: Kelly Leitch and Kevin O’Leary. Leitch has gained that unfavourable comparison due to her statements about “Canadian culture” which her critics call xenophobic.¹ O’Leary admits his similar resume (both men are business tycoons and reality TV stars), but is quite clear that he has drastically different social policies.² But could either of these people take up the toxic rhetoric that Trump is so known for?

American case law establishes a very narrow window to forbid hate speech. The case law comes from Brandenburg v. Ohio.³ This Supreme Court decision overturned the conviction of a Ku Klux Klan leader for spreading hate. The Court found that advocating for discrimination and hate was insufficient to justify an exception to the First Amendment protections of freedom of speech and criminal prosecution. The appropriate threshold was incitement to imminent violence. Even an act as obviously aggressive as burning a cross was considered unpunishable for the content of the speech in R.A.V. v. City of St. Paul.⁴ The closest case for our purposes would be Snyder v. Phelps, an attempt to prevent the Westboro Baptist Church from brandishing their homophobic signs.⁵ These cases demonstrate the high threshold required to ban outrageous and objectionable speech.

In Canada, we tilt the balance toward protecting people’s right to feel safe from discrimination. Our leading case on the subject is R. v. Keegstra.⁶ Mr. Keegstra was an  Alberta Social Studies teacher who taught Holocaust denial and other anti-Semitic conspiracy theories to his students. He was prosecuted under section 319(2) of the Criminal Code, which criminalizes the promotion of hatred against an identifiable group.⁷ This decision of the Supreme Court of Canada takes into account the reasons that freedom of expression is protected by s. 2(b) of the Charter.⁸

The SCC considered the spirit of s. 2(b), and decided that it was designed to foster democracy and help people further (socially appropriate) aspirations. Hate propaganda was found to be inconsistent with those principles, making it easier to justify infringement. An application of the Oakes test (the test in Canadian law for justification of infringement of a Charter right), found hate propaganda to be substantially harmful, and the limits set by s. 319(2) of the Criminal Code, in that they could not be overly impairing on the right and must be proportional to the objectives.⁹ This justified the criminalization of hate propaganda, done in accordance with s 1 of the Charter, which allows infringement of Charter rights when necessary.¹⁰

So what about Trump? It would likely be a difficult case. Trump is rarely explicit in his intention to promote hatred of minority groups, despite having that effect. After an attack by his supporters on a homeless Latino man he characterized them as passionate people who had gotten carried away, rather than repudiating their terrible actions. Even his infamous comments about Mexicans being “rapists and drug dealers” were qualified with “some, I assume, are good people”. Moreover, this comments were limited to accusing the Mexican government of sending “undesirables”. His only comments that may be be prosecutable under our laws are his promises to ban and register Muslims.¹¹

Canada and the United States both enshrine freedom of expression in our Constitutions. We both treat these rights as vitally important, but not without exception. In Canada, our exceptions are larger and more nuanced than theirs. However, even the Canadian threshold for what constitutes hate speech is fairly high. For all the awful things someone could say, very little of it would be subject to prosecution. I only hope that if the time ever comes such statements are subject to a massive loss of votes.

 

¹Thomas Walkom, “Canada could have it’s own Donald Trump”, Editorial, The Star (November 14, 2016), online: <www.thestar.com>.

²Josh Elliot, “O'Leary Committee Sees 'Clear Path to Victory' for Conservative leadership”, CTV News (12 January 2016), online: <www.ctvnews.ca/politics/o-leary-committee-sees-clear-path-to-victory-for-conservative-leadership-1.3238107>.

³(1969), 395 US 444.

⁴(1992), 505 US 377.

⁵(2011), 562 US 443.

⁶[1990] 3 SCR 697, [1990] SCJ No 131.

⁷Criminal Code, RSC 1985, C c-46, s 319(2).

⁸Canadian Charter of Rights and Freedoms, s 2(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

⁹Keegstra, supra note 6.

¹⁰Charter, supra note 8, s 1.

¹¹Lydia O’Connor and Daniel Marans, “Here Are 13 Examples Of Donald Trump Being Racist”, Huffington Post (29 February 2016), online: <http://www.huffingtonpost.com/entry/donald-trump-racist-examples_us_56d47177e4b03260bf777e83>.

What to Expect from The Dominion - Winter Term 2017

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

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

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

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

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

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

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

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

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

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

Freedom of the Press (some restrictions apply)

This past Wednesday, the Centre for Constitutional Studies hosted a presentation by Matthew Woodley of Reynolds Mirth Richards & Farmer LLP. Woodley has been practicing media law for twelve years and gave a great speech asking, “Do we have a free press in Canada?”

Woodley began his presentation by expanding on this with the idea that free expression is fundamental to our other rights. The rights enshrined in section 2(b) of the Charter guarantee us “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”¹.  It is important to note that it is not just the rights of the press that are at stake here. Woodley made this point by citing the 1989 landmark Supreme Court of Canada judgment in Edmonton Journal v Alberta (Attorney General), which held that

“freedom of expression "protects listeners as well as speakers". That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings -- the nature of the evidence that was called, the arguments presented, the comments made by the trial judge -- in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in the courts. They as "listeners" or readers have a right to receive this information. Only then can they make an assessment of the institution.  Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media.”²

 

There is strong Canadian jurisprudence that support a free press, specifically with regards to the courts. Woodley specifically mentioned the Dagenais/Mentuck test that limits the extent to which access to court proceedings can be withheld. The best formulation of this test can be found in the SCC's ruling in Toronto Star Newspapers Ltd v Ontario:

The Dagenais test was reaffirmed but somewhat reformulated in Mentuck, where the Crown sought a ban on publication of the names and identities of undercover officers and on the investigative techniques they had used. The Court held in that case that discretionary action to limit freedom of expression in relation to judicial proceedings encompasses a broad variety of interests and that a publication ban should only be ordered when:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice³

 

Additionally, it is important to note that the scope of the test was expanded in the Vancouver Sun reference, which explained that

While the [Dagenais/Mentuck] test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law... is authorized by statute... or under rules of court... The burden of displacing the general rule of openness lies on the party making the application.⁴

 

Even with these strong protections in place, Woodley highlighted two particular areas that are in need of reform. The first concerns protections from defamation lawsuits. He specifically mentioned a phenomenon called “libel chill”, which has the effect of increasing the reluctance of journalists to publish pieces that might land them in court, even if there is a public interest in doing so. There are protections to mitigate against this phenomenon, but the manner in which they are applied is sometimes arbitrary, leaving members of the media uncertain as to whether or not they can safely exercise their rights.

The second area of reform mentioned considered confidential sources and “whistleblower protections”. Again, while there are protections in place, they do not have the same status as things like the privilege shared between lawyers and their clients. As a result, cases involving confidential media sources are assessed on a case-be-case basis, again leaving us with arbitrary and uncertain results.

The arbitrary nature of the applications of these protections for journalists is troublesome, and Woodley’s calls for reform would definitely be an improvement, if only to add some predictability.  It’s difficult to play the game if you don’t know the rules.

The full video of Mr. Woodley's presentation is available on the Centre for Constitutional Studies' YouTube channel. Please click here to be redirected.

 

¹ Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 2(b) [Charter].
² [1989] 2 SCR 1326.
³ 2005 SCC 41.
⁴ Vancouver Sun (Re), 2004 SCC 43 [Vancouver Sun].

 

The Dominion, Back at it Again!

Hello Readers! Here at the Dominion we are happy to be back writing to you about important constitutional topics relating to the British North America Act. After a brief hiatus from the blogging world during our Christmas Break we are back better than ever here in 2017! Thank you for all your support and readership in 2016; we hope to continue to provide you with some insight into important and pressing constitutional issues this semester.

Our team has changed a bit since we last posted. Deirdre Fleming has left for exchange in New Zealand (lucky her!), and Allison Numerow has joined the project in her place. We wish Deirdre all the best on her exchange and we are sure she is having a blast across the pond! Allison will be providing you with a brief introduction later in the week so that you can learn a bit more about her.

Enough about us, now back to the project itself. Did you know that the year 2017 marks Canada’s 150th birthday? Crazy! In honour of this historic year, our law and social media project will be focussing the content exclusively on topics relating to the British North America Act and events celebrating Canada’s sesquicentennial. If you are interested in Canada 150 events on the University of Alberta campus click here! The link will be continuously updated as more events are finalized. We will also be posting links to some Faculty of Law events relating to important constitutional questions! This Thursday the Centre for Constitutional Studies is presenting a discussion entitled “I wanna talk to my lawyer” regarding the right to seek counsel under section 10(b) of the Charter. If you have ever wanted to learn more about the right to counsel from the faculty’s own Professor Steven Penney, come check it out. Click here if you are interested in attending, the location, date and time are listed.

Although majority of our content this semester will focus on Canadian topics, the United States presidential inauguration this upcoming Friday is too important to ignore. With Trump’s inauguration approaching, issues involving freedom of speech are a popular topic within mainstream and social media. Should a president elect be able to say whatever he desires on his own personal social media? Do any regulations exist that prevent such a prominent figure from spewing out hate-filled comments? Is there a difference between regulating mainstream media and personal social media? All of these questions are currently contentious and pressing. To address the controversy surrounding the future United States president, this week we will be focussing on freedom of speech and how the Canadian Charter regulates speech. Check back this week to see what barriers to free speech exist in Canadian society, and whether these barriers would change how Trump is able to present himself in the media.

Nobody is laughing: Satire cannot shelter misogyny

Dear Sir or Madam, 

Yesterday, we posted about Federal Court Justice Robin Camp and his 2014 comments during a sexual assault trial. Justice Camp repeatedly called the sexual assault complainant “the accused” and asked the complainant why she didn’t keep her knees together.¹ There are also three other Alberta judges currently under scrutiny for applying discredited sexist myths and stereotypes in their sexual assault rulings.²   

It’s easy to assume that overt sexism only exists amongst the old guard of judges and lawyers. It does not. The attitudes that grow into judicial misconduct begin in law school and they exist now.

The University of Alberta law students’ newspaper, the Canons of Construction, recently published an article entitled, “Desperate Drunk Girl Finds Self at Hal-LAW-ween”. The article depicts a fictional female law student who enjoys drinking and socializing with her peers and future colleagues. Law students, does this sound familiar?

The article opens, “[w]e all know that one girl who’s been single just a little bit too long,” establishing an ongoing emphasis on this woman finding her self worth through male attention. The article goes on to say how this woman lives at the bar, “all in the slim hope that she finds the one. Because everyone knows that love develops when you’re 10 tequila shots deep and that closing down the bar to swoop in on the dregs of society at the end of the night is the best way to fill that big empty void in your damaged, broken, and very single heart.”

This intelligent woman pursuing higher education is then slut-shamed. “After fearlessly hitting on pretty much all of the 1Ls, some who were clearly attached to partners, word, like herpes, spread at the party.” A woman displaying initiative by pursuing multiple single men? How dare she! Pull out your bonnet and crinolines³ people, we have an abomination on our hands!

The internal dialogue that accompanies the “epiphany of her life” is just as profound as one would expect of a highly educated woman: “What is love anyway? I think I’m getting fat and I might be developing signs of jaundice. Maybe I should learn to teach yoga. Do I have any KD left at home?”. She finally realizes that this law degree business is making her fat, thus diminishing her self worth to men. Her only solution is drop out and refocus on her honing her body rather than honing her mind.

The moral of the story for this tale’s “heroine” is in the article’s concluding paragraph: “The very next day, she quit drinking, put on a chastity belt, dropped out of law school and enrolled at a yoga academy. She finally learned that she don’t need no man to make her happy, and that praising the virtues of fair-trade, organic and environmentally sustainable armpit wax to yuppie moms in her trainee yoga instructor classes is way better than catching gonorrhea for the sixth time.”

In essence, a female law student is desperate if she doesn’t have a boyfriend, yet if she does garner that oh-so-important male attention, she’s shameful and requires a chastity belt. Her epiphany is not that she is an intelligent woman who can pursue a legal career while engaging in an active social life. The moral of her tale is that she only learns of her self worth when she abandons her career and relegates herself to a more feminine arena.

But it’s just a joke, and humour is subjective! The article is supposed to be satire! Humour does not excuse misogyny and shaming your peers.

Good satire exposes a truth through ridicule and irony, but what was the truth being exposed in this article? That women who pursue men are promiscuous? That professional women would be better staying at home, rather than socializing with their peers? Perhaps that women don’t belong in the legal profession in general, given that the “heroine” of this story found self worth only when she quit law school.

Yes, this is fiction. But it speaks to every woman in this program on some level. Every woman who has expressed romantic interest at a bar, every woman who has consumed alcohol in excess, every woman who regularly attends school social events. The solution for these women? According to this article, drop out of school. You aren’t worth it.

The problem is not whether the female in the article is fictional. The problem is that this attitude creates an unsafe environment for all women in this program. Female students should not be afraid to engage in the same behaviour as men for fear that their behaviour will be publicly ridiculed.

Your resident nasty women and men,

The Dominion 

 

[1]Jason Markusoff, Charlie Gillis, Michael Friscolanti “The Robin Camp case: Who judges judges”, Maclean’s. (14 September 2016), online: <www.macleans.ca/news/robin-camp-case-who-judges-the-judges/>.

[2] Dan McGarvey and Natasha Frakes “4 Alberta judges under scrutiny for sex assault rulings”, CBC News. (16 September 2016), online: <http://www.cbc.ca/news/canada/calgary/alberta-judges-sex-assault-trials-myths-1.3765959>.

[3] R v Ewanchuk, [1999] 1 SCR 330, 131 CCC (3d) 481.

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

Dear Sir or Madam:

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

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

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

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

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

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

Still hoping one day the ceiling will shatter,

The Dominion

 

 

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

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

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

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

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

⁶ Henein, supra note 4.

⁷ Watkins, supra note 5.

⁸ Henein, supra note 4.

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

Dear Sir or Madam,

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

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

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

 

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

 

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

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

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

 

Your humble and grateful servants,

The Dominion

 

 

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

² Ibid.

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

⁴ Mandate, supra note 1.

⁵ Ibid.

⁶ Ibid.

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

⁸ Ibid.

War: what is it good for? Independence

Dear Honoured Readers,

For the remainder of this week, The Dominion commemorates Remembrance Day, this Friday, with noteworthy Canadian military topics. Today, we discuss how Canada’s international military action is tied to independence.

Section 15 of the BNA Act states that “The Command-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces, of and in Canada, is hereby declared to continue and be vested in the Queen.” This provision was adopted at patriation in 1982, which explains why Canada’s military still bears royal nomenclature. For example, our navy is the Royal Canadian Navy and our ships are designated H.M.C.S., for Her Majesty’s Canadian Ship.

At the time of Confederation, Britain intended to utilize Canadian soldiers for Britain’s international war efforts, but Canada was not always on board. For example, the South African War, which lasted from 1899 to 1902, was contentious for some Canadians who did not support Canada’s involvement. Prime Minister Sir Wilfrid Laurier recognized that entering this war would risk “national stability and political popularity.”[1] Still, the government of Canada gave their loyal support as British subjects.

Canada started to develop and pay for its own permanent defence force from 1871 to 1883.[2] Between 1850 and 1920, several Militia Acts gave the Parliament of Canada official control over military forces. However, Canadian forces were still commanded by British officers.[3] As a British colony, Canada was obligated to follow Britain into war in 1914. Sir Wilfrid Laurier and Prime Minister Robert Borden publicly pledged their support for the “Mother Country” as World War I began.[4] Public national support for Britain’s effort in the war was a humble, respectful gesture to Britain, especially considering that Canada and Britain had argued over military funding.[5]

Canadian troops gave remarkable efforts in western Europe, most notably at Ypres, Regina Trench, Vimy Ridge, Passchendaele, and Mons.[6] Even though Canada was officially “a mere extension” of Britain in the war, the Canadian troops were separate and distinct from their British allies.[7] World powers took note of Canadians who fought hard and who lost their lives. At the beginning of the war, Canada’s military was led by British command. By the end of the war in 1918, a Canadian officer commanded our troops.

This transition was a landmark to distinguish Canada’s nationhood as separate from Britain. As a direct result of success on the battlefields and of sacrifices made by Canadian soldiers, Canada insisted on its own signature on the 1918 Peace Treaty.[8] This signified to Britain and other world powers that Canada was emerging from its subordinated colonial place in world politics to being viewed as an equal, developing their own independent foreign policy.

In 1922, Parliament passed the National Defence Act, amalgamating the naval services, the militia, and the air defence, creating the Department of National Defence in 1923.[9] The Statute of Westminster gave Canada independence to decide on matters of national defence and overseas war.[10] When Britain and France declared war on Germany, Canada quickly followed, but Parliament ensured that the decision to enter was solely Canada’s pledge to aid allies, rather than follow along with Britain’s war policies.

We hope you’ll join us each day this week as we continue to pay homage to fallen soldiers, sailors, airmen, and airwomen.

Respectfully,

The Dominion

 

[1] “Canada and the South African War, 1899-1902”, Canadian War Museum, online: <www.warmuseum.ca/cwm/exhibitions/boer/boerwarhistory_e.shtml>.  

[2] “Creating a Standing Army”, Canadian War Museum, online: <www.warmuseum.ca/cwm/exhibitions/chrono/1774standing_e.shtml> [Standing Army]; “Military Reform”, Canadian War Museum, online: <www.warmuseum.ca/cwm/exhibitions/chrono/1774reform_e.shtml>.

[3] Standing Army, supra note 2.

[4] “Canada Enters the War”, Veterans Affairs Canada, online: <www.veterans.gc.ca/eng/remembrance/history/first-world-war/canada/Canada3>.

[5] “Militia Acts”, The Canadian Encyclopedia, online: http://www.thecanadianencyclopedia.ca/en/article/militia-acts/

[6] “The Aftermath”, Veterans Affairs Canada, online: <www.veterans.gc.ca/eng/remembrance/history/first-world-war/canada/canada19> [Aftermath].

[7] Ibid.

[8] Ibid.

[9] “Department of National Defence”, The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/department-of-national-defence>.

[10] “About Canada’s Role in World War II”, Canadian Battlefields Foundation, online: <www.cbf-fccb.ca/learn/about-canadas-role-in-wwii/>; 1931 (UK), 22 Geo V, c 4, reprinted in RSC 1985, Appendix II, No 27.

HalLAWeen edition: No More Clowning Around

This weekend, Canadians of all ages will be carving pumpkins into jack-o-lanterns, watching scary movies, and venturing into haunted houses for the annual celebration of all things that go bump in the night, Halloween. But in light of the “2016 Great Clown Scare”, one particular Halloween tradition – wearing costumes– is becoming a source of concern.

What is this creepy clown movement and how does it tie into Canadian Constitutional law you ask?

This past August, two clowns approached a boy near his apartment complex in South Carolina, attempting to lure him into a seemingly abandoned house in the woods.[1] Instead of being a disturbing but isolated incident, the boy became patient zero in a global outbreak of people dressed as clowns seeking to unsettle, scare, or even hurt others. In the last few months, clown sightings in incongruous places have occurred across North America, Europe, Australasia, and South America.[2] Since the first sighting, there have been reports in 44 American states; prompting even McDonald’s to reduce the profile of their mascot of over 50 years, Ronald McDonald.[3]

In Arizona there was a robbery with armed men dressed as clowns. In another incident in Michigan, a hotel was held up at gun point.[4] In Kentucky, a woman reported that a clown came out of the woods while she was on an evening walk, and attempted to assault her and drag her into the woods.[5] Many more sightings have been nothing more than that, sightings. Clowns popping up across the country, standing near schools intending to scare others.

In Canada, at least 7 provinces and 1 territory have reported sightings. In Edmonton a school went into lockdown for over 90 minutes after a violent threat over social media.[6]  Even as recently as Oct. 25th, a woman in central alberta posted on facebook about a sighting.[7] These instances and others have prompted schools in Fort McMurray and Prince George to ban clown outfits, even for Halloween.[8]

But is this ban constitutionally permitted? What are the legal ramifications of this behaviour? Police can charge many of these people under criminal offences such as mischief, trespass, and harassment. However many of these people intend to scare but don’t actually engage in any criminal activity. Section 2(b) of the Canadian Charter of Rights and Freedoms establishes that the freedom of expression protects any act intended to convey meaning. Though unsettling, it is completely legal to wear a clown costume without engaging in criminal activity.

What about banning clown costumes in schools? Section 93 of the Constitution gives every province the power to pass laws in relation to education. Provinces delegate local governance to school boards, which require schools to impose a dress code.[9] If a school imposes a clown costume ban, a student could complain to the local adjudicative body that hears dress-code complaints, ie school boards, human rights tribunals and courts. The body would need to balance the rights and interests of an individual student against that of the public. The Supreme Court has not heard a case that challenges a non-religious dress code complaint under section 2(b), so it would be impossible to say for sure whether or not a clown costume would be protected under the section.

A few thoughts on where this came from

Some people have cited the remake of Stephen King's classic, “It,” as the reason for all this clown chaos. Others have have suggested that it is not a coincidence that the clown craze is occurring so close to the American election. One Sociologist specializing in mass hysteria said the current clown scare is a result of two rising forces in the US: “social media, and a fear of otherness, whether it arrives in a white Mercedes or a refugee boat.”[10]

Whatever the reason for this influx of unsettling clowns, one thing is for sure, 2016 has given us many more reasons to be coulrophobic. Though the majority of these sightings have sought to unsettle and scare, not to hurt, keep an eye out and be careful as you venture out for trick or treating this year!

Your humble and a bit scared servant,

The Dominion

 

[1] Andrew Russell, “‘Creepy Clown’ sightings: Why the epidemic is spreading across Canada and the U.S.”, Global News (07 October 2016), online: <http://globalnews.ca/news/2990008/creepy-clown-sightings-why-the-epidemic-is-spreading-across-canada-and-the-u-s/>

[2] Clark Mindock, “'Killer Clown' Sightings Global Map 2016: Timeline Of The Creepy Phenomenon Of Threats, Arrests, School Closings And False Alarms”, IBT. (10 October 2016), online: <http://www.ibtimes.com/killer-clown-sightings-global-map-2016-timeline-creepy-phenomenon-threats-arrests-2429124>

[3] Elle Hunt, “'Clown sightings: Ronald McDonald keeps low profile amid creepy craze”, IBT. (12 October 2016), online: <https://www.theguardian.com/culture/2016/oct/12/clown-sightings-ronald-mcdonald-keeps-low-profile-amid-creepy-craze>

[4] John Steckroth, “Embassy Suites in Livonia robbed at gunpoint by man wearing clown mask”, Click On Detroit. (06 October 2016), online: <http://www.clickondetroit.com/news/embassy-suites-in-livonia-robbed-at-gunpoint-by-man-wearing-clown-mask>

[5] “Police investigating report of a woman attacked by man in clown mask in Winchester, Ky.”, WDRB. (01 October 2016), online: <http://www.wdrb.com/story/33293981/police-woman-attacked-by-man-in-clown-mask-in-winchester-ky>

[6] Paige Parsons, “Suspect arrested after lockdown at Harry Ainlay High School, 'creepy clown' causes social media scare”, Edmonton Journal. (05 October 2016), online: <https://www.google.ca/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=edmonton%20clown%20lockdown>

[7] Ibid.

[8] Danielle Nerman, "No more clowning around: Creepy costumes banned at Fort McMurray public schools" (24 October 2016), online: <http://www.cbc.ca/news/canada/calgary/clown-costumes-banned-fort-mcmurray-1.3818802>

[9]  “What is a School Dress Code?”, FindLaw Canada online: <http://constitutional.findlaw.ca/article/what-is-a-school-dress-code/>

[10] Mathew Teague, "Clown sightings: the day the craze began", The Guardian (08 October 2016), online: <https://www.theguardian.com/culture/2016/oct/05/clown-sightings-south-carolina-alabama>

Fighting for a career that was never actually "illegal" but practically so.

Dear Sir or Madam:

Do you think that Canadians have the right to dabble in whatever career choice they see fit? Do you think that sex work has a proper place in Canadian society? Have you ever wondered what it is like to be a sex worker in Canada? If you have thought about any of these questions, or perhaps answered yes to any then today’s post is right up your alley! Today we examine Canada’s landmark prostitution case, Canada (AG) v Bedford, which struck down Canada’s prostitution laws as unconstitutional. Further, we will provide a brief background on the courageous woman who appealed this issue all the way to the Supreme Court.

To begin, we must ask: who exactly is Terri-Jean Bedford? Bedford is a former prostitute, retired dominatrix and previous owner of the “Bondage Bungalow” in Thornhill, Ontario.¹ Before challenging Canada’s prostitution laws in the highest court, Bedford had legal cases dating back to 1994. The “Bondage Bungalow” was raided that year and Bedford was charged under the Criminal Code for operating a bawdy house.² Her 1994 arrest was the first time she considered challenging Canada’s prostitution laws, eventually beginning her formal challenge in 2007, alongside Amy Lebovitch and Valerie Scott.³

Canada (AG) v Bedford challenged several provisions of the Criminal Code relating to sex work. While selling sex for money, the act most people equate to prostitution, is not a criminal offence; several incidental acts to the selling of sex are. The appellants specifically argued that sections criminalizing the operation of a bawdy house, living off the avails of prostitution, and communicating in a public place violated the Charter.⁴ The women argued that s. 7 of the Charter, specifically security of the person, was infringed because sex workers were forced into dangerous situations in order to avoid being charged.⁵ The court unanimously agreed that the security of sex workers was jeopardized because they were forced into risky locations, and potential life-threatening situations in an attempt to avoid criminal prosecution.⁶

The Attorney General argued that prostitution was a “lifestyle choice” and therefore, should not receive constitutional protection.⁷ The Supreme Court dismissed this argument by concluding that sex workers are a marginalized population who are generally forced into this trade with little choice.⁸ Further, the act of selling sex is not actually illegal for those who freely choose to engage in this type of work.⁹ Thus, the court must only consider whether prostitution laws make this legal act more risky.¹⁰ The nine presiding justices agreed that they do.

The Supreme Court stayed their judgement for a year in the Bedford case allowing parliament to amend the prostitution laws to be aligned with the Charter. Parliament passed Bill C-36 as a result. These new prostitution laws essentially make sex work more difficult, by criminalizing the buying of sex.¹¹ Rather than criminalizing sex work itself, the federal government has made it illegal for "John's" to pay for any sexual services. A likely result will be forcing the "buying" of sex, rather than "selling" of sex back into dangerous and secluded areas. Bill C-36 severely limits the power of the Bedford case. 

Terri-Jean Bedford stated it best in an after-court interview “It’s not illegal and there’s nothing wrong with it whatsoever. It’s quite healthy and it produces a very productive man. A happy man makes a productive man.”¹² The federal government should not be impeding people’s free choice to engage in a type of work they consider acceptable. Further, the government cannot pass legislation that creates dangerous working conditions for individuals. The Supreme Court of Canada agrees in the context of prostitution legislation.

 

Your Humble and Obedient Servant,

The Dominion

 

 

¹ Heather Loney, “Who is Terri-Jean Bedford, the dominatrix fighting Canada’s prostitution laws” (20 December 2013), Global News, online: <www.globalnews.ca/news/1043102/who-is-terri-jean-bedford-the-dominatrix-fighting-canadas-prostitution-laws/>.

² Ibid.

³ Ibid.

⁴ Canada (AG) v Bedford, 2013 SCC 72 at para 61-68, [2013] 3 SCR 1101.

⁵ Ibid at para 60.

⁶ Ibid at para 60.

⁷ Ibid at para 83.

⁸ Ibid at 87.

⁹ Ibid at 87.

¹⁰ Ibid at 87.

¹¹ Josh Wingrove, "Canada's new prostitution laws: Everything you need to know" (15 July 2014), The Globe and Mail, online: <www.theglobeandmail.com/news/politics/canadas-new-prostitution-laws-everything-you-need-to-know/article19610318/>.

¹² Loney, supra note 1.

ConsTITutional Rights

Dear Madam and/or Sir,

Do you consider it to be “indecent” if a woman is topless in public? How about if a man is topless? Do you agree that women should have the same right as men to bare their chests? Perhaps you feel that only breastfeeding mothers should publicly milk the #FreeTheNipple campaign. Or perhaps you disagree with that too. If you run a Google search for “breastfeeding in public is”, the first four suggestions are “wrong”, “inappropriate”, “offensive”, and “nasty”.

Certainly, some nursing women choose to cover up or find a more private place. But is seeing a breast in public really offensive? Or inappropriate? What if you’re on an airplane and you want to nurse? Cover up? Seclude yourself in a tiny toilet room with your immuno-compromised baby? Now that’s nasty.  Nobody makes you eat your lunch in an airplane washroom.

Some people believe that women should have the right to walk around or enjoy life topless, just as men do. After all, they argue, without our common social construct that sexualizes breasts, they’re just two bags of skin filled with fat and glands. Indeed, some men have larger breasts than some women! And tit’s not just the outward appearance, it’s the internal breast tissue. The more tissue in the breast, the larger they grow. The Canadian Cancer Society notes male patients account for 1% of breast cancer cases.[1] So what’s the big deal about women’s breasts? Are we mam-merely maintaining modest traditional values?

Under the heading Disorderly Conduct, section 174 of the Criminal Code of Canada prohibits the act of “Nudity” in public without a lawful excuse.[2] Being “Nude” is then defined for the purpose of Nudity as being “so clad as to offend against public decency or order.”[3] This wording is quite vague, which allows for judicial interpretation, and some would argue, misinterpretation. Moreover, the word “clad” is misleading… it is the past participle of the word “clothed”, so technically, nudity should be unclad or partly clad. But further, what offends public decency or order? A breast? Part of it? What about “tasteful sideboob”?[4] What if we go the opposite way and people “clad” themselves in offensive garb? Here’s a fun collage to demonstrate the point:

But back to the tissue—we mean issue—abreast. Judicial interpretation occurs when courts interpret laws within the four corners of the written law. For example, s. 174 needs judicial interpretation of the words “offend”, “public decency”, and “order”. In 1996, Ontarian Gwen Jacob took her criminal charge for an indecent act[5] to the Court of Appeal for Ontario.[6] Apparently the police charged her with indecency in an attempt to nip it in the bud. Jacob was acquitted because the community standard of tolerance at that time indicated to the Court that her actions were not indecent. Further, the Court stated that there was nothing harmful, degrading, or dehumanizing about her conduct, and no one was forced to look at her.

We guess you could say... the Crown’s case went tits up.

So, twenty years later, how do we feel about topless women walking around town because it’s simply too hot for a shirt? CBC News reports that we don’t feel so hot about it.[7] Perhaps it’s because women fear censure, judgment, or ridicule.[8] Perhaps women fear assault or harassment because we live in a society where women’s bodies are objectified and harassment is trivialized. Ultimately, courts interpret laws in accordance with societal values and the Constitution is no exception. What do you think about women being topless in public? Comment below!

Thanks for the mammaries, Ms. Jacob,

The Dominion

 

[1] “Breast Cancer in Men”, Canadian Cancer Society, online: <www.cancer.ca/en/cancer-information/cancer-type/breast/breast-cancer/breast-cancer-in-men/?region=on>.

[2] RS 1985, c C-46 [Criminal Code].

[3] Ibid, s 174(2).

[4] Cards Against Humanity, Creative Commons BY-NC-SA 2.0.

[5] Criminal Code, supra note 2, s 173(1).

[6] R v Jacob (1996), 142 DLR 4th 411 (ONCA), 31 OR (3d) 350.

[7] Prithi Yelaja, “Women’s topless court victory 20 years later, CBC/Radio-Canada (28 Jul 2016) online: <www.cbc.ca/news/canada/women-s-topless-court-victory-20-years-later-1.1026403>.

[8] Ibid.

Silenced!

Dear Sir or Madam,
You may have noticed that our week highlighting issues affecting Indigenous people in Canada has been entirely silent in one regard.  We have not interviewed anyone who identifies as Indigenous.  This is not because we had no desire to do so, but because we were not permitted to.

The Research Ethics Office (REO) at the University of Alberta maintains strict control over anything that can be deemed a “research project” under the University's banner.  As with many things bureaucratic, they mostly do a good job.  But perhaps they do too much of it.  The REO policy on “Research Involving Aboriginal Populations” reads as follows:

“Research involving Aboriginal peoples in Canada has historically been defined and carried out primarily by non-Aboriginal researchers. The approaches used have not generally reflected Aboriginal worldviews, and the research has not necessarily benefited Aboriginal peoples or communities. Consequently, research with Aboriginal peoples must now involve community engagement to ensure that Aboriginal peoples have a role in the research that affects them.”¹

We humbly submit that this overly paternalistic REO policy, when applied too broadly, actually causes the exact opposite effect than intended.  The Dominion is not a “research project”, but a “media project”. Despite this, we are designated a as a research project when we intend to interview people, a.k.a. “human subjects”.  Our stated purpose is to make information regarding legal issues more accessible to a wider range of people.  We have been very fortunate to have been given this platform.  It is our sincere regret that we are unable to share it with a segment of the population whose stories desperately need to be heard.  For this, we apologize.

In addition, we offer two suggestions to help alleviate this problem:

First, we ask those of you that share our position to write to the Research Ethics Office.  Let them know that you feel that it is not appropriate for them to be erecting barriers that serve to silence Aboriginal people by denying them access to platforms that will allow them to tell their stories.

They can be reached by email here or by various other methods here.

Secondly, attend presentations and events hosted by Indigenous groups and speakers.  Listen to their stories.  They have been ignored for far too long.

 

Respectfully Submitted,

The Dominion

¹ University of Alberta, “Research on Aboriginal Populations” (2016), online: <www.reo.ualberta.ca/en/Human-Research-Ethics/Research-with-Aboriginal-Populations.aspx>

The Indian Act: A Cycle of Discrimination

Dear Sir or Madam:

Today we write to you regarding the Indian Act’s negative impact on Aboriginal people in Canada. The Indian Act is the primary statute the federal government enacted to administer Indian status, and regulate Indian reserves.¹  The Act has received significant backlash from Indigenous communities due to highly discriminatory sections, and the paternalistic nature of the document.² The Indian Act has historically discriminated against Indigenous women, awarding them fewer rights than Indigenous men.³ Today’s post will provide a brief history of the Indian Act; then discuss sex discrimination within the Act and reactions to the legislation.

The Indian Act governs how the federal government interacts with Indigenous peoples. First Nations people are the only subjects of the legislation; Metis and Inuit people are not included.⁴ The 1850 Act for the better protection of the Lands and Property of the Indians in Lower Canada was one of the first pieces of legislation to determine who was classified as a legal Indian.⁵ Status was granted based on bloodline and all descendants of a legal Indian would also receive Indian status.⁶ Further, any non-status individual who married a status Indian would receive legal status.⁷ Status would later be regulated under the Indian Act of 1867.

The federal government was granted constitutional powers over “Indians, and Lands reserved for the Indians” under s. 91(24) of the British North America Act.⁸  Any legislation enacted for the purpose of governing First Nations individuals is the exclusive control of the federal government. The Indian Act of 1867 was created when the federal government combined the Gradual Civilization Act and the Gradual Enfranchisement Act into one document.⁹ The purpose of the document was to control First Nations peoples and assimilate them into a European-type culture.¹⁰ Early provisions of the Act were highly discriminatory towards all Indigenous people. The Act forced Indigenous children into residential schools, banned religious potlatches (gift giving ceremonies), banned dancing, and made it illegal to hire lawyers to bring claims against the government unless they had government consent.¹¹ Important aspects of Indigenous cultures were outlawed in an attempt to assimilate Indigenous people into society.

One of the most problematic and contentious parts of the Indian Act is a set of sections pertaining to Indian status. Critics of the Act and Indigenous advocates suggest that the administration of status is highly discriminatory against women.¹² Even with several amendments to the Indian Act since 1867, status continues to be passed along through male lineage, never female lineage.¹³ The federal government has been aware of this sex discrimination since the 1960s, but the discrimination still remains.¹⁴ The government attempted to address this issue by passing Bill C-31 which allowed women who had lost their Indian status, through marriage to a non-status individual, to apply for status reinstatement.¹⁵ Even with the new amendments discrimination remains because women who marry out can only pass their status to one generation of children, whereas men who marry out are able to pass status through two generations.¹⁶

Indigenous women today still “face multiple challenges with respect to securing status for themselves and their children.”¹⁷ The hardship of securing status can cause negative social interactions by creating a subset of Indigenous women that are seen as less pure than those with full legal status.¹⁸ This system of classification perpetuates violence against Indigenous women because they are viewed as less pure, causing profound psychological stress and trauma.¹⁹ The government needs to find a less discriminatory practice for classifying legal status. In the future, we can only hope that women and men will receive the same rights under the Indian Act and the sex discrimination will cease to exist.

Your Humble and Obedient Servants,

The Dominion

 

¹ William B Henderson, “Indian Act” (7 February 2006), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/indian-act/>.

² Gwen Brodsky, “Indian Act Sex Discrimination: Enough Inquiry Already, Just Fix It” (2016) 28 CJWL 314 at 314.

³ Ibid at 314.

⁴ Henderson, supra note 1.

⁵ Ibid.

⁶ Ibid.

⁷ Ibid.

⁸ Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(24), reprinted in RSC 1985, Appendix II, No 5.

⁹ Ibid.

¹⁰ Ibid.

¹¹ Ibid.

¹² Brodsky, supra note 2 at 315.

¹³ Bob Joseph, “Indian Act and Women’s Status Discrimination Via Bill C31 and Bill C3” (9 July 2012), Working Effectively with Indigenous Peoples™ (blog), online: <www.ictinc.ca/indian-act-and-womens-status-discrimination-via-bill-c-31-bill-c-3>.

¹⁴ Brodsky, supra note 2 at 315.

¹⁵ Henderson, supra note 1.

¹⁶ Joseph, supra note 13.

¹⁷ Inter-American Commission on Human Rights, Missing and Murdered Indigenous Women in British Columbia, Canada OEA/Ser.L/V/II, Doc 30/14 21 (2014), Organization of American States <www.oas.org/en/iachr/reports/pdfs/Indigenous-Women-BC-Canada-en.pdf> at para 69.

¹⁸ Ibid at para 69.

¹⁹ Ibid at para 69.

A Section for Those Sensitive Topics No One Ever Wants to Discuss

Dear Sir or Madam:

Today we write to you regarding section 7 of the Canadian Charter of Rights and Freedoms. Section 7 has had profound impact on Canadian jurisprudence and continues to protect individuals from undue harm. The section’s fundamental goal is to protect individuals from undue state interference in their lives and allow them to make decisions with autonomy. Today’s post will highlight the parameters of s. 7 set out by the Supreme Court of Canada.

Section 7 of the Charter states that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”¹ A plain reading of this section guarantees individuals three fundamental freedoms that cannot be infringed upon unless they are in accordance with fundamental justice. In order to fully understand s. 7 the courts needed to interpret what fundamental justice means. We’ll discuss each facet of s. 7, beginning with the right to liberty.

The Supreme Court determined in Re BC Motor Vehicle Act that absolute liability offences carrying a punishment of imprisonment violates the right to liberty.² In coming to this decision, the Court had to ascertain the meaning of fundamental justice to see whether or not mandatory prison sentences were in accordance with fundamental justice. The court determined that absolute liability, where the available punishment is imprisonment, offends the principles of fundamental justice.³ Essentially, imprisonment by absolute liability would arbitrarily detain individuals without requiring the proper requisite intention to commit the offence. Justice Laskin affirmed that it was not imperative that courts utilize the same method of interpreting fundamental justice so long as they secure full Charter protection for individuals.⁴ Further, the principles of fundamental justice do not carry one “single, incontrovertible meaning”⁵ Rather, the meaning can change based on the nature of the offence and the infringement on s. 7.

Canadian courts have been prudent in outlining situations where s. 7 applies. The Supreme Court focused on the right to liberty in Re BC MVA because the individual was subjected to physical imprisonment. Where a person is physically detained or imprisoned, their liberty is at risk. Courts have also determined that the right to liberty includes the freedom to make fundamental life choices without interference from the state.⁶

The next aspect of s. 7, security of the person, is engaged when there is “state interference with bodily integrity and serious state imposed psychological stress.”⁷ The most notable case where this branch of s. 7 has been applied is in R v Morgentaler. The Supreme Court in this case struck down procedural requirements for therapeutic abortions.⁸ The procedural requirements interfered with both bodily integrity and psychological stress; due to limited access to state approved abortion services.⁹

The last branch of s. 7 of the Charter is the right to life. This prong has recently become a contentious topic in both the legal and media realms alike. The right to life has most notably been highlighted in cases surrounding physician-assisted suicide. Suicide has historically been understood as a way for an individual to escape painful life-circumstances or illness.¹⁰ Physician-assisted suicide is premised on the same principles, but occurs when a patient requests professional medical assistance to enable the suicide through lethal drug treatments.¹¹ The Supreme Court recently legalized physician-assisted suicide in Carter v. Canada (Attorney General). The majority found that an absolute bar on assisted dying created a “duty to live, rather than a right to life.”¹² Further, the law demands that an individual’s choice to end their life must be respected in certain circumstances.¹³ The majority decision in Carter was met with contention and parliament recently applied for a six-month extension to amend the current assisted suicide legislation.¹⁴

Check back tomorrow when we discuss the s. 15 equality rights. Although we aimed to cover most of the notable sections in the Charter, some readers may notice s. 11 is missing. Section 11 regulates the powers law enforcement has once a person has been formally charged with an offence. Often in criminal cases both ss. 7 and 11 will be mentioned because liberty is at stake once a person has been formally charged. We at the Dominion can assure you the omittance of s. 11 from today’s discussion was a purposeful choice. For those interested in protections granted by s. 11, we will be covering this in upcoming weeks as the Vader case (and potential mistrial) continues to unfold. Until then, we hope you leave this post feeling confident that state interference in your life has definite limits.

Your Humble and Obedient Servants,

The Dominion

 

 

¹ Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
² [1985] 2 SCR 486 at 492, 24 DLR (4th) 536 [Re BC MVA].
³ Ibid at 502.
⁴ Ibid at 499.
⁵ Ibid at 501.
⁶ Madam Justice Bertha Wilson, “Will Women Judges Really Make A Difference?” (1990) 28:3 Osgoode Hall LJ, 507 at 516.
⁷ [1988] 1 SCR 30 at 32, 26 OAC 1.
⁸ Ibid at 71.
⁹ Ibid at 71.
¹⁰ Robert F Weir, Physician-Assisted Suicide, (Bloomington: Indiana University Press, 1997) at vii.
¹¹ Ibid at viii.
¹² 2015 SCC 5 at para 63, [2015] 1 SCR 331.
¹³ Ibid at para 63.
¹⁴ See Carter v Canada (Attorney General), 2016 SCC 4, 394 DLR (4th) 1.

Worst Dinner Party Ever: Religion and Politics Edition

Dear Sir or Madam,
It has often been said that politics and religion make for poor dinner conversation.  If you are eating, we will wait for you to finish.  Done?  Good.

As we have already demonstrated, statute is often incomplete.  For example, s. 2(a) of the Charter reads:

“2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;...¹”

Of course, nothing is as easy or simple as it seems with constitutional law, and there have been various calls to interpret these eleven little words.  Section 2(a) rights can be somewhat troublesome when considering that accommodating them without any restrictions whatsoever can have some unintended consequences, such as denying others their Charter rights, which sometimes includes their s. 2(a) rights.

In 2005, Bobby Henderson wrote an open letter to the Kansas School Board admonishing their decision to teach "Intelligent Design" alongside the theory of evolution in their classrooms².  Henderson suggested that this would mean that the Board would need to teach more than only their version of "Intelligent Design", including the one that he fabricated for the purpose of the letter, which suggests that the universe was created by a Flying Spaghetti Monster.  He also suggested that, in order to teach his theory with full respect to his religion, it must be done in a pirate costume.  At first blush, Bobby Henderson seems like a madman.  In reality, he is a hero.  His letter used humour to make a very important point in the American debate regarding the establishment of religion and its place in public schools.

Since we aren't American, let's fast-forward to 2014 when a B.C. man named Obi Canuel lost his driver's licence for refusing to take a photo without wearing a colander on his head.  You see, Canuel considers himself a devout "Pastafarian", which is what adherents of the Flying Spaghetti Monster call themselves.  In addition to swashbuckling accessories, they also view anything pasta-related, such as a strainer, to be sacrosanct.  The Insurance Company of British Columbia (ICBC) refused to permit him to take the photo with the colander.  According to the Vancouver Sun, “ICBC refused to allow an interview... and has shrouded its religious policies in secrecy”³.

But... But... But... What about Section 2(a)?  

Exactly.

As you've probably guessed by now, s. 2(a) rights aren't absolute.  The best ruling that we've had to sort this out is Syndicat Northcrest v Amselem⁴.  In this case, Orthodox Jews built small dwellings on their apartment balconies as part of their observance of Succot, a Jewish holiday.  The owners of the building didn't like it, and sought an injunction.

Now, this case doesn't really deal with the Charter directly, but with the Quebec Charter.  The important part of the Supreme Court of Canada's ruling deals with freedom of religion as a whole.  It provides a definition for “religion”⁵ and, more importantly, both a requirement and a test for a sincerely held religious belief⁶.  Amselem held that an individual belief is able to be protected, provided that it is made in good faith, and that violations would be assessed on their gravity, compared with that of competing interests, such as the rights of property owners to not have temporary structures erected on the balconies of their building.  Finally, the Court asserted that freedom of religion is to be used as a shield, and not a sword.  It is not to be used to deny the rights of others⁷.

If this ruling has left you more confused instead of less, it's because you've been paying attention.  Amselem, while providing a framework to assess how our s. 2(a) rights should be weighed, ultimately leaves us with some very important questions:

How do we deal with parody religions such as the Church of the Flying Spaghetti Monster, especially when they are making such an important point regarding the place of religion itself in our society?

How do we recognize the rights of the non-religious, who have been and continue to be systemically discriminated against? (Note that the “God keep our land” line is still a part of "O' Canada", despite the recent edits, and that the preamble to the Constitution Act, 1982 reads, “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law”⁸.)

With Canada's diversity continuing to grow, how do we weigh the rights of competing religions with beliefs that are diametrically opposed to each other?

Sadly, this is going to be one of those posts with more questions than answers.  It is our sincere hope that it will encourage people to both pay attention to this emerging issue, as well as to make their voices heard.

 

RAmen,
The Dominion

 

¹ Canadian Charter of Rights and Freedoms, s 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
² Bobby Henderson, “Open Letter to Kansas School Board”, online <www.venganza.org/about/open-letter/>.
³ Matthew Robinson, “ICBC rules for religious headgear remain shrouded in mystery”, Vancouver Sun (5 March 2015), online: <http://www.vancouversun.com/life/ICBC+rules+religious+headgear+remain+shrouded+mystery+with+video/10849851/story.html>.
⁴ [2004] 2 SCR 551 [Amselem].
⁵ Ibid at para 39.   
⁶ Ibid at para 52.
⁷ Ibid at para 62.
⁸ Supra note 1.