University of Alberta Faculty of Law Blog

Meet the Team: Ms. Cleveland

Tansi Nîtôtemtik,

“It can take years after hearing a story to know the meaning of that story in one’s heart – for it to become a truth – yet the process of it becoming heart-knowledge or Debwewin is the process of integrating that echo into one’s experience.”[1]

        As someone who has spent almost a decade within the Canadian university system, first in Arts and now in Law, I am not a newcomer to reconciliatory discourse. I know that the easiest way to be an ally is to make space for Indigenous voices, but I also know that “simply making space for Indigenous voices is woefully inadequate.”[2] Making space is a fair first step. Listening is a strong second. But then?

        I chose to participate in the Law and Social Media Project because as a settler, an educator, an academic, and a soon-to-be lawyer, it is my responsibility to work towards a future characterized by accountability, equity, and justice. I, and you, have a responsibility to take the third step, and the fourth, and the fifth. As our team name suggests, action is required.

        Our blog allows us to share experiences that counter national narratives taught in classrooms and promoted in the media to this day. It provides a platform where we can draw attention to current events that expose the ongoing injustices faced by Indigenous communities nationwide. Perhaps most importantly, it offers an opportunity for us (and you) to make new stories, and new relationships, together.

        In the year to come, we will explore just what those next steps entail. You will hear many stories and I hope that you will keep them in your hearts. I will work to deepen my own heart-knowledge, and I encourage everyone to attempt the same.

Until next time,

Grace Cleveland

Team Lead, ReconciliAction YEG

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[1]  Leanne Simpson, Dancing on Our Turtle’s Back (Winnipeg: Arbeiter Ring Publishing, 2011) at 104.

[2] Aaron Mills, “Nokomis and the Law in the Gift: Living Treaty Each Day” in Kiera L. Ladner & Myra J. Tait, eds., Surviving Canada: Indigenous Peoples Celebrate 150 Years of Betrayal (Winnipeg: ARP Books (Arbeiter Ring Publishing), 2017) at 20.

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Will We All Be Alive for #Canada300?

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

⁶Ibid.

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

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

We Will Wait Our Turn, Just Not For Too Long

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

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

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

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

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

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

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

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

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

 

 

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

² Ibid.

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

Entering the Dragon's Den

 

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

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

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

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

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

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

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

 

 

 

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

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

³ Ibid.

⁴ Ibid.

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

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

⁷ Ibid.

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

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

Fringe Political Parties and the Democratic Process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

⁵Ibid at para 36.

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

⁷Ibid.

 

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

 

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

[6] Mockingbird, supra note 3.

Are Dementors Coming to Canada?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

²Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c 11, s 12.

³R v Smith, [1987] 1 SCR 1045.

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

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

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

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

⁸Ibid.

 

Are You or Have You Ever Been a Mutant?

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

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

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

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

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

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

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

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

 

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

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

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

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

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

[6] Charter, supra note 4, s 1.

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

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

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

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

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

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

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

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

Elijah Harper: Newsmaker and Indigenous Hero

We continue the focus on Indigenous leaders by shifting from leaders during Confederation, to a leader who influenced the signing of the Meech Lake Accord. The Canadian Broadcasting Corporation put out a survey in late 2013 asking Canadians, “Which Canadians have inspired you the most over the last 150 years?”¹ Nearly 12,000 individuals responded to the survey. CBC analyzed the data and released a “Top 10 Canadian Heroes List” in June of 2014. Topping the list was former premier Pierre Trudeau.                        

However, an issue arose over the complete omission of Indigenous Canadians and women from the list.² The oversight sparked outrage among CBC Aboriginal, who put forth their own survey in response asking, “Who are your Indigenous heroes?”³ The responses gathered through social media, namely Facebook and Twitter, included several prominent Aboriginal heroes. Topping the list though was Elijah Harper, Manitoba’s only Indigenous MLA in 1990. He was paramount to resisting Quebec’s signing of the Meech Lake Accord without First Nations consent.⁴

Elijah Harper was born March 3, 1949, in Red Sucker Lake, Manitoba.⁵ He grew up in an Oji-Cree community roughly 700 kilometres north of Winnipeg, but was forcibly removed from his family to be placed in the residential school system.⁶ Harper studies at the University of Manitoba and became the elected leader of the Red Sucker Lake First Nation at age 29.⁷ To add to his impressive resume, Elijah Harper became the first Indigenous MLA in Manitoba in 1981.

While serving as a MLA in Manitoba, Elijah Harper was appointed as minister without portfolio for Native Affairs in 1986, and was promoted to Minister of Northern Affairs the following year.⁸ Although his political career was one of great triumph and recognition, 1990 would be Harper’s most memorable year in office. Harper’s political highlight was his historic efforts in blocking Quebec from singing the Meech Lake Accord without consulting Indigenous people first.

In order for Quebec to officially sign on to the new Constitution Act of 1982, both the federal government and all provinces needed to ratify the Meech Lake Accord.⁹ Gary Filmon, Manitoba’s premier at this time, required unanimous consent from all MLA’s in order to ratify the Meech Lake Accord.¹⁰ Harper and other Indigenous leaders, adamantly opposed the singing of the Accord because it did not guarantee rights to Indigenous individuals.¹¹  Harper refused to consent each time the discussion arose. The ratification deadline passed and he still would not consent, so the Accord was never signed. His refusal and opposition brought attention to issues surrounding both the duty to consult First Nations people and Indigenous rights. Harper spent the remainder of his career working with Indigenous groups to increase support for First Nations rights.

It is unsurprising that Elijah Harper is recognized as an Indigenous hero among his own people, and other groups of Canadians. Shawn Atleo, the National Chief of the Assembly of First Nations, describes Harper’s work as helping to “lay a solid foundation” for Indigenous rights; hard work that continues in Canada today. Harper’s efforts and others following, do not go unnoticed.

 

 

¹ The Canadian Press, “Top 10 Canadian heroes list includes Pierre Trudeau, Jack Layton”, CBC News (15 June 2014), online: <www.cbc.ca/news/canada/top-10-canadian-heroes-list-includes-pierre-trudeau-jack-layton-1.2676398>.

² Kim Wheeler, “Top 10 indigenous heroes includes Elijah Harper, Alanis Obomsawin”, CBC News (18 June 2014), online: <www.cbc.ca/news/indigenous/top-10-indigenous-heroes-includes-elijah-harper-alanis-obomsawin-1.2678637>.

³ Ibid.

⁴ Ibid.

⁵ Tabitha Marshall, “Elijah Harper” in Canadian Encyclopedia (Historica Canada: 2015), online:

<www.thecanadianencyclopedia.ca/en/article/elijah-harper/>.

⁶ Ibid.

⁷ Ibid.

⁸ Gloria Galloway, “Elijah Harper, First Nations leader who brought down Meech Lake, dies at 64”, The Globe and Mail (17 May 2013), online: <www.theglobeandmail.com/news/politics/elijah-harper-first-nations-leader-who-brought-down-meech-lake-dies-at-64/article11988959/>.

⁹ Ibid.

¹⁰ Ibid.

¹¹ Ibid.

Interview with Provincial Court's Judge Judith Shriar

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

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

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

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

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

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

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

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

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

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

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

However, more can be done.

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

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

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

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

It's Dolly the Sheep's Anniversary!

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

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

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

Animal Cloning

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

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

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

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

Human Cloning

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

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

Is Human Cloning Constitutional?

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

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

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

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

 

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

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

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

⁴see www.myfriendagain.com.

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

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

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

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

⁹Health Canada, supra note 7.

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

¹¹Ibid.

¹²Ibid.

¹³Ibid.

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

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

Happy Louis Riel Day!

Happy Family Day Readers! As you are enjoying your day off from work, or the beginning of Reading Week for those students out there, we bring you a brief biography of Louis Riel.

In Alberta, we celebrate this statutory holiday “Family Day”; but move a bit more east and Manitoba is celebrating “Louis Riel Day.” In honour of this holiday, we bring you a brief introduction into Louis Riel’s life and involvement in Confederation.

Louis Riel is considered to be one of Canada’s greatest Metis advocates. Riel, the oldest of 11 children, was born on October 22, 1844.¹ His paternal grandmother was a Franco-Chipewyan Métisse and passed her Aboriginal ancestry through to Riel’s family.² Riel grew up in a close and religious family and attended Catholic school. Archbishop Tache took great interest in Riel early on; arranging for Riel to take classes at Petit Séminaire de Montréal to enter the priesthood.³ Throughout his college career, Riel was known for wild mood swings and bouts of deep depression.⁴ He eventually dropped out of college in 1865, one year after receiving news that his father had passed away.⁵ After dropping out, Riel returned to Red River to help support his family.⁶

A few years later Riel began to make his political mark when the Hudson’s Bay Company made plans to sell Rupert’s Land and the North Western Territory to the Dominion of Canada.⁷ Metis people in this area were concerned that an influx of Anglo-Protestants would take over their unique social, cultural and political status.⁸ To protect their culture and interests, the Metis in the area created the Metis National Committee to represent them, with Riel being elected as secretary and eventually president.⁹ As the Committee’s president Riel advocated for the protection of Metis rights to ensure their culture would be protected when Manitoba eventually entered into Confederation.

Riel was an aggressive advocate for minority rights in Manitoba, and this aggression may have led to his demise. In 1885, Riel was charged with treason for the shooting of Thomas Scott.¹⁰ Scott was a member of Canada First, a group that believed Metis and French Canadians had no place in Confederation.¹¹ As tensions grew between the Metis and Canada First, Riel made the brash decision to execute Scott. Riel’s lawyers tried to defend the charge using the insanity defence. Riel was adamantly against the insanity plea, believing it would discredit Metis people’s legitimate complaints against the Canadian government.¹² The trial concluded with Riel delivering a lengthy speech proving his sanity, which meant he was sentenced to death.¹³ French Canadians took issue with Riel’s execution, and to this day some believe he was sentenced to death due to his Metis heritage.¹⁴

Today, Louis Riel is officially recognized as the “Founder of Manitoba” by the Canadian government.¹⁵ Beginning in 2007, Manitoba recognizes the third Monday in February as Louis Riel Day, to honour his relentless fight to protect Metis and other minority rights.¹⁶ Louis Riel embodied many qualities that Canadians pride themselves on, accepting, cooperative, and multi-cultural. Honouring his work during Confederation is worthwhile.

 

 

¹ Adam Gaudry, “Louis Riel” (22 April 2013), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/louis-riel/>.

² Lewis H Thomas, “Riel, Louis (1844-85)” (1982), online: 11 Dictionary of Canadian Biography, <www.biographi.ca/en/bio/riel_louis_1844_85_11E.html>.

³ Ibid.

⁴ Ibid.

⁵ Ibid.

⁶ Ibid.

⁷ Gaudry, supra note 1.

⁸ Ibid.

⁹ Ibid.

¹⁰ Ibid.

¹¹ “The Execution of Thomas Scott” (2001), CBC Learning, online: <www.cbc.ca/history/EPCONTENTSE1EP9CH2PA4LE.html>.

¹² Gaudry, supra note 1.

¹³ Ibid.

¹⁴ Thomas, supra note 2.

¹⁵ Government of Manitoba, “Journee Louis Riel Day”, (2008).

¹⁶ Ibid.

Enough about Queen Bey, let’s talk about Queen V!*

Having recently reviewed some prominent Fathers of Confederation, this week we focus on Mothers of Confederation. Without a doubt, the most prominent and important female influence of Confederation was Queen Victoria.

Queen Victoria’s connection with Canada went beyond merely sitting as monarch over a colony. Her father, Prince Edward, Duke of Kent, lived in Quebec and the Maritimes for the better part of a decade.[1] Canada’s smallest province, Prince Edward Island, was named after him.

Queen Victoria was Canada’s ultimate political signatory to enact Confederation. It was an appealing mechanism with which to unite French- and English-speaking residents, to facilitate trade among the regions, and to stave off American invasion.[2] Some Canadian and British politicians reasoned that the US would be more likely to conquer Canada if the regions remained separate British colonies. Therefore, Confederation not only internally united Ontario, Quebec, and the Maritimes, it also protected the region from external threats.

One of Queen Victoria’s first steps to uniting British North America was to ease tensions after the rebellion uprisings in Upper and Lower Canada.[3] The rebellions started in 1837, the year Victoria ascended to the throne, and continued to 1839. She granted amnesties to rebels as early as 1838, allowed the Governor General to issue special pardons in 1843, and granted completed pardons for anyone involved in the rebellions through the Amnesty Act in 1849.[4] One former rebel became a father of Confederation, which speaks to the Queen’s work in reconciliation.

In a further commitment to maintain harmony in her colony, Queen Victoria directly met with First Nations leaders before Confederation. Her children appear to have continued that commitment by visiting Canada and meeting with First Nations leaders to listen to political needs and concerns.[5]

Although her father and five of her children visited Canada, Queen Victoria never did.[6] Moreover, one critic wrote that Queen Victoria’s personal diary seems dismissive of major Canadian events.[7] On May 22, 1867, the Queen noted only briefly that she attended the final meeting to authorize Confederation. And on July 1st, 1867, Queen Victoria wrote of her daughter’s fifth wedding anniversary and of the weather, with no mention of Canada.[8]

Other historians note that the Queen never stopped grieving her husband’s death in 1861.[9] Perhaps, though committed to Canada’s political interests, she merely reflected in her personal journal without considering whether 150 years later we would analyze her private thoughts.

Whatever her motivation for her personal diary, Queen Victoria’s motivation for Confederation was echoed by those who were on the ground in British North America. Confederation had political motives that transcended those among the colonies. As Canada’s Queen, Victoria made her mark on Canada and we continue to celebrate her reign with the annual Victoria Day long weekend.

 

*Just kidding; we love Queen Bey.

[1] Arthur Bousfield, “Queen Victoria, 1837-1901: Mother of Confederation,” Canadian Royal Heritage Trust (2013), online: <crht.ca/queen-victoria-mother-of-confederation/>; Carolyn Harris, “Queen Victoria and Canada,” Queen’s Alumni Review, Queen’s University (2016), online: <www.queensu.ca/gazette/alumnireview/stories/queen-victoria-and-canada>.

[2] Library and Archives Canada, Government of Canada “How Canada was Formed,” Politics and Government, Library and Archives Canada online: <https://www.collectionscanada.gc.ca/confederation/kids/023002-1010-e.html>; Canada History, “The London Conference,” CanadaHistory.com (2013), online: <http://www.canadahistory.com/sections/eras/confederation/London.html>.

[3] Harris, supra note 1.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Randy Boswell, “Queen Victoria, the ‘Mother of Confederation,’ Made No Mention of the Event in her Diary,” Postmedia Network Inc (25 May 2012) Canada.com, online: <www.canada.com/news/Queen+Victoria+Mother+Confederation+made+mention+event+diary/6679733/story.html>.

[8] Ibid.

[9] Bousfield, supra note 1; Harris, supra note 1.

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).

William Henry Pope: Father of Confederation & A Great Beard Too

William Henry Pope was born May 29, 1825 in Bedeque, Prince Edward Island (PEI), and later died on October 7, 1879.¹ A man of many talents and great intelligence, Pope was a politician, journalist, lawyer, judge, and land agent throughout his life.² The man had more successful careers than most people can hope for in five lifetimes. That person in law school that is involved in every club, seems to be at every event and is also probably a Dean’s Lister; this was William Henry Pope.

Pope received his post-secondary education in England where his father had originally emigrated from in 1819.³ After receiving his law degree, Pope returned to his native land of Canada to article under Edward Palmer back in PEI.⁴ After being called to the bar in 1847, Pope began a successful land agent practice.⁵ His practice became notorious after a few questionable business decisions took place. Pope’s father-in-law falsely convinced a client that the Liberal government at the time would not be interested in purchasing the client’s land.⁶ This caused the client to sell the property to Pope and his business partners for a mere $14,000, who then flipped the property to the Liberal government for nearly double the price.⁷ The deal was dubious, almost on the verge of fraud, but it cemented Pope as a legendary businessman. And we wonder why lawyers often get bad reputations in popular culture?

Fast forward into the 1850s, Pope moved away from his land agent practice, and began a political career. Pope was one of the few Prince Edward Island supporters of Confederation, which led to a deep feud with fellow PEI politician and former legal mentor Edward Palmer.⁸ Both men attended the Charlottetown and Quebec Conferences, with Palmer adamantly against Confederation and Pope in favour.⁹ As a result, the Conservative Party in PEI underwent deep-rooted conflict with regards to a united Canada. The popular vote favoured Palmer becoming Premier of the province, with William Henry Pope (and fellow ally Colonel Gray) needing to accept the harsh reality that Confederation was not popular amongst Islanders.¹⁰

Throughout the 1860s, Pope’s political career began to dwindle. It was rather unexciting until he was appointed to the bench in 1873. Pope was appointed by John A. MacDonald’s government to Prince County Court that year.¹¹ As a judge, Pope focussed extensively on pushing for Prince Edward Island’s inclusion in a united Canada.¹² Pope aggressively advocated this position even when it was still unpopular to do so. His passion for Confederation was evident throughout his judicial career, and likely impacted many of his decisions. In this role, Pope’s legal record was outstanding, with only two decisions out of thousands ever being appealed.¹³

With his death, Pope leaves behind an impressive legacy. Pope’s admirable career as a judge seems to make up for questionable land agent tactics nearly 30 years prior. Further, he will always be remembered as one of the few Islanders willing to stand up for Confederation, and help push the country into a united state.

 

 

¹ Ian R Robertson, “William Henry Pope” (16 January 2008), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/william-henry-pope/> [Robertson, “William”].

² Ibid.

³ Robertson, “Pope, William Henry”, online: (2003) 10 Dictionary of Canadian Biography <www.biographi.ca/en/bio/pope_william_henry_10E.html> [Robertson, “Pope”].

⁴ Ibid.

⁵ Robertson, “William” supra note 1.

⁶ Ibid.

⁷ Ibid.

⁸ Robertson, “Pope” supra note 3.

⁹ Ibid.

¹⁰ Ibid.

¹¹ Ibid.

¹² Ibid.

¹³ Ibid.

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.

City v Scholar

For those of  you enjoying your well-earned holiday vacation. March 1601 wasn't that long ago, from the sequoias and redwoods perspective; even some oaks.

From "The Workhouse:  The Story of an Institution"  http://www.workhouses.org.uk/Oxford/

Robert Phillis, weaver, shall be delivered unto him twenty powndes towards the settling on worcke in spynning of lynnen and in carding and sorting of wollen with the cytty and suburbes, wherein specyall regard must bee had that the idle and loytring sort be sett on workce, and yf they refuse and doe their worcke amysse, that they be punnyshed by whipping

That probably wouldn't work under today's labour laws in Canada. 

1601 is an important year in UK social history: "... the 1601 Act for the Relief of the Poor has come to be regarded as a milestone in British social legislation. It created the framework for poor relief in England that was to last until ... [1834]."

See http://www.workhouses.org.uk/poorlaws/1601intro.shtml

But, in any event, the "idle and loytring sort" mentioned in the except would never have been the University of Oxford scholar seated in, for example, the Christ Church Meadow or an All Souls Quad ceaselessly contemplating the eternal ineffable. That scholar couldn't, officially, have been an earlier version of me for long stretches in Oxford's history:see http://www.jstor.org/stable/29777111

That's part of a story for another day, part of which is hinted at by the name of part of path along Merton College's south wall: "Dead Man's Walk.

 

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.

I Thought We Were Equal: French Language and the BNA Act

Cher Monsieur ou Madame:

Canada is a longstanding bilingual country, attempting to balance the competing interests of both our British and French settlers. The Official Languages Act, 1969 recognizes both French and English as Canada’s official languages.¹ Through the powers of this Act, Canadians across the country are guaranteed various rights. Some notable powers include: the right to receive federal services provided in the official language of one’s choice, and all acts of Parliament must be available and published in both languages.² The requirement to receive federal legislation in either language is logical considering both languages are equal. Naturally, it may surprise you to discover that the fifteen versions of the British North America Act, 1867 (BNA Act) have no official French version.³

It is understandable that no official French version of the BNA Act is available for the years prior the enactment of The Official Languages Act. Before the Official Languages Act was passed there was no legislative requirement to provide federal documents in both languages. British Parliament, whose only official language is English, passed the BNA Act. At the time of Confederation, the strong British presence and their government control over the document is likely the reason English was the only official language the document passed in. Even in 1867 however, French translations of the document were available. A French newspaper Le Canadien printed a translated version of the BNA Act Bill on March 6, 1867.⁴ As far back as Confederation, French translations have been available, albeit unofficially.

Here at the Dominion, we can understand the BNA Act having only an English version before the Official Languages Act passed. What we have difficulty understanding is that three versions of the BNA Act (1974, 1975 and 1975 (No. 2)) were passed after French was recognized as an official language; and all fail to have an official French version.⁵ The logical reason for this failure is that the Constitution was still under Imperial control this time (check out our previous post about patriation), and therefore not technically a Parliamentary document. When the Canadian government finally patriated the BNA Act, renaming it the Constitution Act, 1982, an official French version of this document became available.⁶

Section 55 of the Constitution Act, 1982 presented the Minister of Justice with the power to translate previously enacted constitutional documents into French.⁷ Using this power, the French Constitutional Drafting Committee prepared a draft translating all of the BNA Acts into French.⁸ Even with the Committee presenting a drafted translations, the Canadian government never officially enacted the French versions.⁹ Thus, at the Dominion we must wonder are French and English truly equal in this country.

 

Your Humble and Obedient Servants,

The Dominion

 

 

¹ Official Languages Act, RSC 1985, c 31, (4th Supp).

² Ibid at ss 6 & 22.

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

⁴ Hugo Choquette, “Translating the Constitution Act, 1867: A Critique” (2011) 36:2 Queen’s LJ 503 at 516.

⁵ Constitution Act, 1867, supra note 3.

⁶ Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

⁷ Ibid at s 55.

[8] Canada, French Constitutional Drafting Committee, Final Report of the French Constitutional Drafting Committee responsible for providing the Minister of Justice of Canada with a draft official French version of certain constitution enactments, (Ottawa: Department of Justice, 2015), online <www.justice.gc.ca/eng/rp-pr/csj-sjc/constitution/lawreg-loireg/index.html>.

[9] Ibid.