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

 

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

 

Tansi Nîtôtemtik,

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

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

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

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

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

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

So, how have journalism schools responded?

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

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

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

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

Until Next Time,

ReconciliAction YEG

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

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

[3] Ibid.

[4] Ibid.

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

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

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

[8] Ibid.

[9] Ibid.

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

Spotlight on The Current's, "In Care and in Crisis: Canada’s Indigenous Child Welfare Emergency"

Tansi Nîtôtemtik,

Image retrieved from <www.cbc.ca/radio/thecurrent/a-special-edition-of-the-current-for-january-25-2018-1.4503172>.

In January 2018, CBC Radio’s The Current released a special edition entitled “In Care and In Crisis: Canada’s Indigenous Child Welfare Emergency.”^[1] This episode sought to focus on the emergency that is Canada’s child welfare and foster care system. The episode was broken down into four segments, each focusing on interviews with individuals who had experienced, or who had worked within, the system.

In the first part of the episode, host Anna Maria Tremonti spoke with an anonymous Indigenous mother from Manitoba whose first child was taken into Child and Family Services (CFS) care when she was 16. Now 20 and pregnant again, the mother related how she is on a “birth alert list”, meaning her second, unborn child could be seized by CFS after she gives birth. The mother spoke emotionally about having her son taken away from her when he was just months old and how now, weeks away from giving birth to her daughter, she is under a birth order and fears CFS will take her daughter away as well. Anna Maria Tremonti also spoke with Sandie Stoker, the executive director of the Child and Family All Nations Coordinated Response Network, which responds to birth alerts in Winnipeg. Ms. Stoker explained what a birth alert is and the safety assessment process it triggers.

In the second part of the episode, Anna Maria Tremonti interviewed three young Indigenous adults, each of whom each shared their experiences growing up within the foster care system.^[2] One of the interviewees, Jaye Simpson (aged 23), shared her firm belief that the foster care system is working the way it is designed – that is, “as a machine to destroy Indigeneity.”^[3] Another interviewee, Reina Foster (aged 19) described the child welfare system as “a form of cultural genocide for Indigenous children,” just like the residential school system and the Sixties Scoop.^[4] She stated that today’s welfare system, referred to as the “Millennials scoop”, is the legacy of these institutions.^[5] The third interviewee, Dylan Cohen (aged 22), further stated that the system is creating a “legacy of inter-generational trauma” for the children in its care.^[6]

The third segment of the episode featured an interview with then Minister of Indigenous Services, Jane Philpott, who discussed action taken by the federal government to alleviate the crisis. Ms. Philpott noted there are “perverse incentives” within the system to apprehend Indigenous children. Specifically, she noted the system is paid according to the number of kids apprehended. In response to Jaye’s comment about how the system is a machine built to destroy Indigeneity, Ms. Philpott acknowledged that she was “speaking the harsh truth.”^[7] Building on that truth, Ms. Philpott stated that the system is not broken, but “is doing what it has been designed to do.” She concluded that, ultimately, “we have to disrupt that system” and change its incentives.^[8]

The final segment highlighted two community initiatives that offer creative solutions to the issues inherent in the child welfare system. First was a profile on Felix Walker, CEO of the Family and Community Wellness Centre on the Nisichawaysihk First Nation, who instituted an innovative approach to child welfare which involves removing parents, not children, from homes where children are at risk, and placing them with extended family in the community. Second was a profile on Winnipeg’s Metis Child and Family Services Authority’s LIFE Program, which places children and their parents in a foster home, where they learn about parenting and themselves from a so-called “LIFE-Mom”.

 

The full episode is available here.^[9]

 

Until next time,

Team ReconciliAction YEG

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[1] CBC Radio, “The Current: In Care and In Crisis: Canada’s Indigenous Child Welfare Emergency” (25 January 2018), online: The Current <www.cbc.ca/radio/thecurrent/a-special-edition-of-the-current-for-january-25-2018-1.4503172 > [perma.cc/CG9W-98XQ].

[2] A more thorough overview of this interview was featured on the blog last week. See our November 22nd post.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] CBC Radio, “The Current: In Care and In Crisis: Canada’s Indigenous Child Welfare Emergency” (25 January 2018), online: The Current <www.cbc.ca/radio/thecurrent/a-special-edition-of-the-current-for-january-25-2018-1.4503172 > [perma.cc/CG9W-98XQ]. A transcript is also available: see <www.cbc.ca/radio/thecurrent/a-special-edition-of-the-current-for-january-25-2018-1.4503172/thursday-january-25-2018-full-text-transcript-1.4504311> [perma.cc/G8ZE-FFE9].

In the Media: 'Thunder Bay' Podcast's Ryan McMahon talks Canada's Reaction to the National Inquiry

Tansi Nîtôtemtik,

Ryan McMahon is an Anishinaabe comedian, writer and host of Thunder Bay, a podcastwhich speaks to the deaths of Indigenous Peoples in Ontario. Of his many accomplishments, a notable few are his receiving the Yorkton Film Festival’s Golden Sheaf Award for Best Documentary – Historical/Biography, and his nomination for a Canadian Screen Award 2018 for the documentary Colonization Road.[1] Ryan McMahon is an activist and outspoken leader for Indigenous Peoples and in today’s blog post, we will be discussing his recent interview with Day 6 for CBC Radio on Canada’s reaction to the National Inquiry into the Missing and Murdered Indigenous Women and Girls.[2]

In the nine-minute interview, there is one recurring idea: Canada needs to do better. As will be discussed in later posts, the National Inquiry into Missing and Murdered Indigenous Women and Girls Final Report (the “Final Report”)[3] characterized what is happening to Indigenous women and girls as “genocide.” Consequently, much of the reaction following the report’s release has been concentrated on the legalese ramifications of such a classification, something that Ryan McMahon calls a “distraction.”[4] He says that, ultimately, this focus has caused many to sideline the report.[5]

McMahon goes on to say that the focus is being taken off of the real issue, and that “it’s not just that we’re not listening to each other, it’s that we’re having completely different conversations.”[6] Furthermore, there has been an “unfathomable amount of pain caused by the re-traumatization” of women that was needed to give their testimony.[7] McMahon says that it is imperative that we stop focusing on the specifics and start listening to what Indigenous women have to say.[8]

Since the release of the Final Report,there has been much criticism concerning the portrayal of this issue by the media. The dominant criticism is that the media is not on the side of Indigenous women and, consequently, many women have declined to be interviewed by news outlets.[9] In his interview, McMahon corroborated this observation and stated that “Indigenous men need to be part of the solution” – a role he took on by agreeing to be interviewed.[10]

It is clear that Indigenous Peoples and non-Indigenous Canadians alike need to come together and focus on the issue of missing and murdered Indigenous women and girls and work towards a solution. It is time that non-Indigenous Canadians listen to what is being said and help effect change. Without action, the countless Indigenous women who shared their stories will have done so in vain.

If you would like to listen to the podcast, you can find it here.[11]

 

Until Next Time,

 

Team ReconciliAction YEG

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[1] Colonization Road (2018), online: Colonization Road <www.colonizationroad.com/> [perma.cc/MB6X-QU95].

[2] CBC Radio, “New report, same old response: Ryan McMahon confronts Canada’s reaction to the MMIWG inquiry”, CBC Radio(last modified 7 June 2019), online: <www.cbc.ca/radio/day6/ryan-mcmahon-on-mmiwg-nba-lessons-for-the-nhl-daniel-dale-fixing-deloreans-hbo-s-chernobyl-and-more-1.5165179/new-report-same-old-response-ryan-mcmahon-confronts-canada-s-reaction-to-the-mmiwg-inquiry-1.5165183> [perma.cc/6JYN-QZM3] [CBC Radio].

[3] National Inquiry into Missing and Murdered Indigenous Women and Girls, “Final Report” (last visited 5 October 2019), online: National Inquiry into Missing and Murdered Indigenous Women and Girls <www.mmiwg-ffada.ca/final-report/> [perma.cc/5JVQ-BDXY].

[4] CBC Radio, supra note 2.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] CBC Radio, supra note 2.

Will We All Be Alive for #Canada300?

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

⁶Ibid.

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

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

We Will Wait Our Turn, Just Not For Too Long

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

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

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

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

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

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

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

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

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

 

 

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

² Ibid.

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

Zombie Law Apocalypse

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

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

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

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

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

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

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

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

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

List of Undead Offenders:

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

 

[1] RSC 1985, c-46.

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

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

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

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

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

[6] Harris, ibid.

[3] Ha, supra note 2.

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

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

[10] Ha, supra note 3.

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

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

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

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

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

[16] Ha, supra note 3.

[17] Ibid.

Entering the Dragon's Den

 

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

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

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

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

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

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

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

 

 

 

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

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

³ Ibid.

⁴ Ibid.

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

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

⁷ Ibid.

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

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

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.

 

Trek Yo'self Before You Wreck Yo'self

On stardate 42523.7 (October 26th, 2364 for those of us in the 21st century), the crew of the USS Enterprise-D, under the command of Captain Jean-Luc Picard (Sir Patrick Stewart¹ at his finest), pulled into Starbase 173 for what was presumably a routine stop. For one member of Picard's crew, this visit resulted in a fight for his life and autonomy, but not against an enemy of Starfleet.  This battle was to be fought against an overzealous officer from within their own ranks.

Great science fiction prompts us to imagine a world different from our own, to explore questions of ethics, morality, and even law. Cue episode 9 of season 2 of Star Trek: The Next Generation, entitled “The Measure of a Man”.²

This particular episode focuses on Lieutenant Commander Data (brilliantly portrayed by Brent Spiner³), the first and only android to serve with Starfleet. Upon their arrival to Starbase 173, we are introduced to Commander Bruce Maddox, a brilliant but overconfident science officer who wishes to dismantle Data in an effort to study and eventually replicate him. Though Data lacks the capacity for emotion, he is able to form and express preferences. With this in mind, he refuses to submit to the procedure. Data  subsequently resigns his commission in Starfleet when it appears to be the only way to halt the procedure.

The episode then transforms into a legal drama. Captain Phillipa Louvois, a legal officer, convenes a hearing over the issue. Commander Maddox takes the position that Data is property of Starfleet and therefore cannot resign. Capt. Picard is assigned to represent Data, while the case is “prosecuted” by Commander William Riker, Picard's First Officer and Data's good friend.

Riker elicits evidence that Data is merely a machine.  He is also successful in having facts read into the record. Specifically, that Data was created by a cyberneticist, that his positronic brain has an impressive processing speed that is unmatched by any other known life form, that he has superhuman strength, and that he can have his hand removed and be turned off without permanent harm.

Picard begins his arguments by wisely conceding that Data is a machine, but follows up by claiming that human beings are also “machines” of a sort, and that this is largely irrelevant. The matter at hand is whether or not Data is sentient. While questioning Maddox, Picard asks him what would be required to meet a minimum threshold for sentience. Maddox responds, “Intelligence, self-awareness, consciousness.” He effectively assists the court in formulating a legal test by which to assess Data's claim that his is sentient, and therefore unable to be held to be property.

Maddox quickly concedes that Data is intelligent, and Picard makes a fairly easy case for self-awareness as well. On the point of consciousness, Picard does not necessarily argue that Data is conscious, but that “consciousness” is a criterion that is exceedingly difficult to test. He proposes that if Data can meet even the lowest standard of consciousness, he must be sentient.

In his closing, Picard states that someone will eventually succeed in replicating Data. It is the court’s decision in this matter that will determine how humanity and this new race of artificial life forms will interact. He effectively asks the court to look at policy considerations regarding “the boundaries of personal liberty and freedom”, finally asking, “Are you prepared to condemn him and all who come after him to servitude and slavery?”

Needless to say, Picard wins the day and Data wins his autonomy. Acting as judge, Louvois concludes that she doesn't really know what Data is, but that he should have the freedom to explore these things for himself.

Most television shows that focus on law make some legal errors, and this episode is no exception. Picard's calling of a “hostile witness”, his questioning of Data while Maddox is giving evidence, and the court referring to Riker as the “prosecution” despite Data not being accused of any crime are three examples that come to mind.  Much of this is excusable, as it allows for a complex legal issue to be resolved in 45 minutes of screen time.  

Having said that, “The Measure of a Man” was accurate in a couple of important aspects. After the parties agreed to a test for sentience, they were both correct in arguing for how it should be applied. As is often the case in law, policy considerations were a major deciding factor. Picard's argument that ruling Data as property would open the floodgates for future enslavement of similar beings was enough for the court to view sentience with the broadest application possible, basically erring on the side of autonomy over the potential for slavery.

Even for those who might not have an affinity for science fiction, “The Measure of a Man” is worth a watch for it's value as a legal drama.

 

1 online: Twitter <twitter.com/SirPatStew>.
2 “The Measure of a Man”, Star Trek: The Next Generation (Hollywood, Cal: Paramount Domestic Television, 1989).
3 online: Twitter <twitter.com/BrentSpiner>.

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

 

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

[6] Mockingbird, supra note 3.

Are Dementors Coming to Canada?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

³R v Smith, [1987] 1 SCR 1045.

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

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

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

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

⁸Ibid.

 

You Can’t Handle The Truth!

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

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

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

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

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

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

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

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

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

 

 

 

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

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

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

³ Ibid.

⁴ Ibid.

⁵ Ibid.

⁶ Ibid.

⁷ Ibid.

⁸ Ibid.

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

¹⁰ Ibid.

Are You or Have You Ever Been a Mutant?

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

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

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

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

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

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

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

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

 

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

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

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

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

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

[6] Charter, supra note 4, s 1.

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

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

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

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

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

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

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

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

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>.

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.

Throwing it Back on Tuesday: People Edition

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

 

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

 

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

 

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

 

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

 

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

 

 

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

² Ibid.

³ Ibid.

⁴ Ibid.

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

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

⁷ Ibid.

⁸ Ibid.

⁹ Ibid.

¹⁰ Aylsworth & Trovato, supra note 5.

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

¹² Ibid.

 

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).

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>.